Licenses and permits – Firearm – Marijuana conviction

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Where the Pepperell Police Department denied the plaintiff’s first application for a license to carry a firearm because of her 1994 conviction for possession of marijuana in Vermont, but granted her second application after the Massachusetts Executive Office for Public Safety and Security issued new guidance for situations involving small amounts of marijuana, the plaintiff’s lawsuit against the police chief must be dismissed as moot.

“The Court cannot grant [plaintiff Sara] Celona the relief she seeks for the purported violations of her Second and Fourteenth Amendment rights. First, the Court cannot grant Celona’s request for an injunction requiring [defendant] Chief Scott to issue her a LTC, … because he has already done so … Celona also requests a declaratory judgment and injunction requiring licensing authorities, including Chief Scott, to obtain certified court documents to prove any conviction disqualifying a LTC applicant, … but there is no longer a controversy between these parties and Celona would not benefit from the relief requested. Although Celona’s first LTC application was denied solely because she was disqualified based on the Triple I report indicating an out-of-state conviction for possession of marijuana — a charge she does not dispute, but asserts was expunged — she was ultimately granted a LTC following a change in the law regarding the legality of possession of less than one ounce of marijuana in the Commonwealth and in accordance with the [Massachusetts Executive Office for Public Safety and Security (EOPS)] Guidance regarding out-of-state convictions for similar offenses. Regardless of whether Chief Scott is required to produce certified court documents in support of Celona’s out-of-state conviction for marijuana possession, based upon the EOPS Guidance, such a conviction has not disqualified Celona from obtaining a LTC in Massachusetts that she has now obtained. As such, there is no present controversy between Celona and Chief Scott and Celona would not benefit from either form of relief requested. … Here, … there is no reasonable expectation that the challenged action will recur after dismissal of this case where ‘the voluntary cessation [of the challenged action, namely the denial of the LTC] occurred for reasons unrelated to the litigation [namely, the issuance of EOPS guidance in light of a change in the law].’ … Similarly, the ‘capable of repetition, yet evading review’ exception to the mootness doctrine … is inapplicable here where, as discussed above, there is no ‘reasonable expectation that the same complaining party would be subjected to the same action again.’ …

“Celona further seeks a declaratory judgment that Chief Scott violated her rights when denying her first LTC application. … It is well established, however, that the ‘issuance of a declaratory judgment deeming past conduct illegal is . . . not permissible as it would be merely advisory.’ … Celona’s request for reasonable attorneys’ fees pursuant to section1988, … standing alone, ‘does not create a stake in the outcome sufficient to resuscitate an otherwise moot controversy.’ … Even then, it cannot be said that Celona is a ‘prevailing party’ under section1988 where the Supreme Court has rejected the so-called ‘catalyst theory’ and Celona does not demonstrate that she prompted a ‘court-ordered chang[e] [in] the legal relationship’ between her and Chief Scott by way of the EOPS Guidance or otherwise. …

“Because the case is moot, the Court lacks subject matter jurisdiction and the case must be dismissed.”

Celona v. Scott (Lawyers Weekly No. 02-149-16) (10 pages) (Casper, J.) (USDC) (Civil Action No. 15-cv-11759-DJC) (April 8, 2016).

Click here for the full-text opinion.