Powell v. Holmes et al
Filing
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Judge F. Dennis Saylor, IV: ORDER entered denying 10 Motion to Dismiss for Failure to State a Claim. (FDS, law2)
UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
_______________________________________
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MYKEL POWELL,
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Plaintiff,
)
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v.
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SGT. BRIAN HOLMES, in his individual
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and his official capacity as a Sergeant
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of the Stoughton Police Department, and
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JAMES O’CONNOR, in his individual
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and his official capacity as a Detective
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of the Stoughton Police Department,
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Defendants.
)
_______________________________________)
Civil Action No.
17-10776-FDS
MEMORANDUM AND ORDER ON DEFENDANTS’ MOTION TO DISMISS
SAYLOR, J.
This is a dispute over the disposal by police officers of confiscated firearms. Plaintiff
Mykel Powell alleges that defendants Brian Holmes and James O’Connor, both Stoughton police
officers, deprived him of the use and value of his firearms without due process of law.
According to the complaint, Powell had a firearms license and owned several weapons.
When he was indicted on criminal charges, the Stoughton police suspended his license and
required him to surrender the weapons. After the charges were dropped, Powell asked for the
weapons back. Instead, the police refused, and eventually destroyed the confiscated weapons.
Powell essentially contends that the loss of the use and value of his property, for which he
received no compensation, violated his due-process rights under the Constitution.
Defendants have moved to dismiss on the ground that the complaint fails to state a claim
upon which relief can be granted. For the reasons set forth below, that motion will be denied.
I.
Background
A.
Factual Background
The following facts are set forth as alleged in the complaint.
Mykel Powell was at the relevant time a resident of Stoughton, Massachusetts. As of
2015, he had a Class A license that permitted him to carry firearms. (Compl. ¶ 9).
Brian Holmes is a sergeant in the Stoughton Police Department. (Id. ¶ 2). Among other
things, Holmes handles applications for firearm permits. (Id. ¶ 10). James O’Connor is a
detective in the Stoughton Police Department. (Id. ¶ 3).
On November 29, 2015, the Stoughton Police Department suspended Powell’s firearms
license pending the resolution of criminal charges against him. (Id. ¶ 9). According to the
complaint, Sgt. Holmes came to Powell’s house and took possession of:
a.
a Bushmaster AR15 [rifle] (serial no. HFN6346),
b.
an S&W SD9 [pistol] (serial no. BFI643914),
c.
6 pre-ban [sic] AR 30 round magazines,
d.
1 magazine for the S&W SD9, [and]
e.
the bag for the rifle.
(Id. ¶¶ 11-12). The complaint alleges that the fair market value of the property taken was at least
$1,532.24. (Id. ¶ 13).
The complaint alleges that Powell was not provided a receipt. (Id. ¶ 14). Instead, he
“was told to call Sgt. Holmes once he is clear from his criminal charges.” (Id. ¶ 15). It further
alleges that Powell was not given notice in writing of the licensing authority’s ability to transfer
the firearms a year after they were surrendered under Mass. Gen. Laws ch. 140, § 129D. (Id.
¶ 16); see Mass. Gen. Laws ch. 140, § 129D (“The licensing authority shall at the time of
delivery or surrender inform the person in writing of the authority’s ability, within 1 year after
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delivery or surrender, to transfer the firearms, rifles, shotguns and machine guns and ammunition
to any licensed dealer or other person legally permitted to purchase or take possession.”).
On August 3, 2016, approximately eight months later, the criminal charges against
Powell were dismissed. (Id. ¶ 17). On August 5, 2016, Powell “left a telephone message for
Sgt. Holmes informing him that the criminal case against him was dismissed.” (Id. ¶ 18). He
alleges that he tried several additional times to reach Sgt. Holmes by telephone. (Id. ¶ 19). He
finally spoke to him on September 29, 2016. (Id. ¶ 19). According to the complaint, Sgt.
Holmes refused to return the confiscated property and told Powell that he “needed a change in
his lifestyle.” (Id. ¶ 20).
At some point thereafter, Powell moved to Rhode Island. (Id. ¶ 21). Following the
move, Sgt. Holmes allegedly informed Powell that he would return the firearms once he was
lawfully able to possess firearms in Rhode Island. (Id. ¶ 22). Powell passed Rhode Island’s
“blue card” test on October 24, 2016, which allowed him to lawfully purchase or possess
handguns in that state.
Powell alleges that he attempted to contact Sgt. Holmes again, but “was advised to
contact” Det. O’Connor. (Id. ¶ 24). On November 14, 2016, Det. O’Connor informed Powell
that his property had been sent for disposal on October 3, 2016. (Id. ¶ 25).
The complaint further alleges that Powell never received a receipt indicating that his
property had been transferred to a bonded warehouse under Chapter 140, § 129D, operated by
another person with an appropriate permit. (Id. ¶ 26); see Mass. Gen. Laws ch. 140, § 129D
(“Any [dealer who operates a bonded warehouse] that takes possession of a weapon under the
provisions of this section shall: (i) inspect such weapon; (ii) issue to the owner a receipt
indicating the make, model, caliber, serial number and condition of each weapon so received;
3
and (iii) store and maintain all weapons so received in accordance with such regulations, rules or
guidelines as the secretary of the executive office of public safety may establish under this
section.”). The complaint further alleges that Powell was denied the opportunity to transfer his
property to a dealer or licensee under Chapter 140, § 129D. (Compl. ¶ 27); see Mass. Gen. Laws
ch. 140, § 129D.
B.
Procedural Background
This action was filed on May 3, 2017. It alleges two counts under 42 U.S.C. § 1983, one
for the loss of use of his property and one for the loss of the value of his property. (Compl.
¶¶ 30-37). The complaint alleges that defendants deprived him of his property without due
process of law in violation of the Fourth, Fifth, and Fourteenth Amendments. (Id. ¶ 4).
Defendants have moved to dismiss the complaint for failure to state a claim upon which relief
can be granted.
II.
Standard of Review
On a motion to dismiss, the Court “must assume the truth of all well-plead[ed] facts and
give . . . plaintiff the benefit of all reasonable inferences therefrom.” Ruiz v. Bally Total Fitness
Holding Corp., 496 F.3d 1, 5 (1st Cir. 2007) (citing Rogan v. Menino, 175 F.3d 75, 77 (1st Cir.
1999)). To survive a motion to dismiss, the complaint must state a claim that is plausible on its
face. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). That is, “[f]actual allegations must
be enough to raise a right to relief above the speculative level, on the assumption that all the
allegations in the complaint are true (even if doubtful in fact).” Id. at 555 (citations and footnote
omitted). “The plausibility standard is not akin to a ‘probability requirement,’ but it asks for
more than a sheer possibility that a defendant has acted unlawfully.” Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009) (quoting Twombly, 550 U.S. at 556). Dismissal is appropriate if the facts as
alleged do not “possess enough heft to sho[w] that [plaintiff is] entitled to relief.” Ruiz Rivera v.
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Pfizer Pharm., LLC, 521 F.3d 76, 84 (1st Cir. 2008) (alterations in original) (quoting Clark v.
Boscher, 514 F.3d 107, 112 (1st Cir. 2008)) (internal quotation marks omitted).
III.
Analysis
A.
Massachusetts Procedures for Suspending or Revoking Firearms Licenses
A Class A firearms license entitles the holder to purchase, rent, lease, borrow, possess,
and carry firearms, rifles, and shotguns and ammunition therefor, “subject to such restrictions
relative to the possession, use or carrying of firearms as the licensing authority deems proper.”
Mass. Gen. Laws ch. 140, § 131(a). “A license may be revoked or suspended by the licensing
authority if it appears that the holder is no longer a suitable person to possess such a license.” Id.
§ 131(f).1 The licensing authority may suspend licenses “in a reasonable exercise of discretion”
and is to make the determination based on “reliable and credible information that the . . . licensee
has exhibited or engaged in behavior that suggests that . . . the licensee may create a risk to
public safety.” Id. § 131(d).
The licensing authority is required to provide written reasons for its decision to suspend a
firearms license. Id. § 131(f). A licensee who disagrees with the licensing authority’s decision
is not entitled to a stay of the suspension under any circumstances, but may seek judicial review
within 90 days of receiving notice of that decision. Id.2
“Upon revocation or suspension, the licensing authority shall take possession of such
license and the person whose license is so revoked or suspended shall take all actions required
under the provisions of section 129D.” Id. § 131(f). Section 129D requires persons whose
The licensing authority is “the chief of police or the board or officer having control of the police in a city
or town, or persons authorized by them.” Mass. Gen. Laws ch. 140, § 121.
1
2
Note that if an appeal is pending, the obligation to turn over firearms in the licensee’s possession is
suspended. Mass. Gen. Laws ch. 140, § 129D; Pasqualone v. Gately, 422 Mass. 398, 404 (1996).
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licenses have been suspended or revoked to deliver or surrender “all firearms, rifles, shotguns,
and machine guns and ammunition” to the licensing authority “without delay.” Id. § 129D.
Although the person no longer has the right to possess the firearms himself, he may, within a
year, give or sell them to another person who does have the right to possess them, whereupon the
licensing authority must deliver the firearms to the transferee. Id. The licensing authority must
give the person whose license was suspended written notice at the time the firearms are
surrendered of his right to transfer them within one year. Id.
Upon receiving the firearms, the licensing authority may transfer possession of them “for
storage purposes to a federally and state licensed dealer of such weapons and ammunition who
operates a bonded warehouse,” as long as the firearms are not evidence in a pending criminal
case or investigation. Id. When that dealer takes possession, he shall “(i) inspect such weapon;
(ii) issue to the owner a receipt indicating the make, model, caliber, serial number and condition
of each weapon so received; and (iii) store and maintain all weapons so received in accordance
with such regulations, rules or guidelines as the secretary of the executive office of public safety
may establish under this section.” Id. The dealer may auction any weapon in its possession if
(1) authorized to do so by the licensing authority after one year, or (2) storage charges (which are
assessed on the gun owner) have been in arrears for 90 days. Id. The proceeds of that auction
are applied first to the storage charges and then returned to the owner of the weapon.
If the licensing authority cannot reasonably “ascertain a lawful owner” of the weapon
within 180 days of acquiring it, the licensing authority may “in its discretion, trade or dispose of
surplus, donated, abandoned or junk firearms, rifles, shotguns, or machine guns or ammunition to
properly licensed distributors and firearms dealers,” and the proceeds will go to the municipality
in which the authority presides. Id.
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If, after a year, the weapons have not been disposed of in any other way, the colonel of
the state police may sell the firearms at a public auction and remit the proceeds to the state
treasurer. Id.
“A revoked or suspended license may be reinstated only upon the termination of all
disqualifying conditions, if any.” Id. § 131(f). Presumably, this would entitle a licensee to the
return of his weapons, but there does not seem to be a statutory provision to that effect. Cf.
Andrade v. City of Somerville, 92 Mass. App. Ct. 425, 109-10 (2017) (describing a situation
where firearms were allegedly negligently returned to a licensee after a judge determined that the
revocation of his license was in error).3 Notably, § 129D requires that a transferee designated
within a year by the person whose license was suspended must “affirm in writing that the
purchaser or transferee shall not in violation of section 129C transfer the firearms, rifles,
shotguns or machine guns or ammunition to the former owner,” suggesting that the transferee
cannot be identical to the owner (although such a transfer would not be a violation of § 129C if
the owner were properly re-licensed).
B.
Fourteenth Amendment and Procedural Due Process
Section 1983 provides that “[e]very person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State or Territory of the District of Columbia, subjects or
causes to be subjected, any citizen of the United States or other person within the jurisdiction
thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and
laws, shall be liable to the party injured in an action at law, suit in equity, or other proper
Where the sole reason for the confiscation of the weapons is that a person’s license has been suspended
for failure to give notice of a change of address, the officer confiscating the weapons must provide the person with
“a written inventory and receipt for all firearms, rifles or shotguns” and must return them to the owner “upon the
renewal or reinstatement of such expired or suspended license within one year of such confiscation” or may dispose
of them as provided in § 129D. Mass. Gen. Laws ch. 140, § 131(m). There does not, however, appear to be a
procedure for returning weapons upon reinstatement of a license suspended for another reason.
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proceeding for redress.” 42 U.S.C. § 1983. The statute provides a cause of action against police
officers who have violated a plaintiff’s constitutional rights “under color of state law,” even if
their actions in fact violated state law. Monroe v. Pape, 365 U.S. 167, 184-87 (1961) (“Misuse
of power, possessed by virtue of state law and made possible only because the wrongdoer is
clothed with the authority of state law, is action taken ‘under color of’ state law.” (quoting
United States v. Classic, 313 U.S. 299, 326 (1941)). Litigants are generally not required to
exhaust potential state remedies before filing a § 1983 action in federal court. Id. at 183 (“It is
no answer that the State has a law which if enforced would give relief. The federal remedy is
supplementary to the state remedy, and the latter need not be first sought and refused before the
federal one is invoked.”).
Nevertheless, a plaintiff still must allege a viable underlying constitutional violation. The
complaint here makes allegations under the Fourth, Fifth, and Fourteenth Amendments.
As to the Fourth Amendment, the seizure of the weapons appears to be legal. Plaintiff
does not appear to contest that defendants acted lawfully in suspending his Class A license on
account of the pending criminal charges, or that defendants had the authority, under Mass. Gen.
Laws ch. 140, § 129D, to take possession of his weapons; rather, plaintiff is complaining about
what happened to his property after the charges were dropped. (See Compl. ¶ 31 (“The
Defendants’ failure to comply with the M.G.L. c. 140, § 129D, failure to return Mr. Powell’s
property, and the inappropriate handling of Mr. Powell’s property deprived Mr. Powell of a
property interest.”); id. ¶ 35 (“Mr. Powell has not been given compensation for the loss and/or
destruction of his property.”)).
The Fifth Amendment does not apply because it only reaches due-process claims against
the federal government. Dusenbery v. United States, 534 U.S. 161, 167 (2002) (“The Due
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Process Clause of the Fifth Amendment prohibits the United States, as the Due Process Clause of
the Fourteenth Amendment prohibits the States, from depriving any person of property without
‘due process of law.’”). Therefore, the question is whether the complaint states a claim under the
Fourteenth Amendment.
Where a plaintiff sues under § 1983 for deprivation of property without due process of
law, the inquiry as to whether he has been deprived of due process includes an examination of
the available state-law remedies. Parratt v. Taylor, 451 U.S. 527, 543-44 (1981). Even if
actions taken under color of state law resulted in deprivation of property, if pre-deprivation
process would have been impracticable (and therefore not constitutionally required) and postdeprivation process under state law would provide an adequate remedy, then plaintiff has no
claim for violation of due process. Id.; see also Hudson v. Palmer, 468 U.S. 517, 533 (1984)
(expanding Parratt to intentional deprivations of property); Zinermon v. Burch, 494 U.S. 113,
139 (1990); San Gerónimo Caribe Project, Inc. v. Acevedo-Vila, 687 F.3d 465, 478-81 (1st Cir.
2012) (en banc) (reviewing Supreme Court precedents in this area).
In Parratt v. Taylor, 451 U.S. 527 (1981), prisoner Parratt ordered a hobby kit, which
was lost by prison officials. Id. at 530-31. He sued those officials under § 1983, alleging that he
had been deprived of property without due process of law in violation of the Fourteenth
Amendment. Id. at 529. The Court ruled that he had not stated a claim for violation of
procedural due process, because where there is a “random and unauthorized act by a state
employee . . . the loss is not a result of some established state procedure and the State cannot
predict precisely when the loss will occur. It is difficult to conceive of how the State could
provide a meaningful hearing before the deprivation takes place.” Id. at 541. The Court
suggested that, in order for pre-deprivation process to be constitutionally required, there must be
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some established state procedure that caused the deprivation:
[R]espondent has not alleged a violation of the Due Process Clause of the
Fourteenth Amendment. Although he has been deprived of property under color
of state law, the deprivation did not occur as a result of some established state
procedure. Indeed, the deprivation occurred as a result of the unauthorized failure
of agents of the State to follow established state procedure. There is no
contention that the procedures themselves are inadequate nor is there any
contention that it was practicable for the State to provide a predeprivation hearing.
Moreover, the state of Nebraska has provided respondent with the means by
which he can receive redress for the deprivation.
Id. at 543 (citing Neb. Rev. Stat. ¶ 81-8,209 et seq. (1978), providing a tort-claims procedure for
prisoners).
C.
Whether the Complaint States a Claim
As noted, the Massachusetts statute requires the temporary surrender of firearms if the
owner’s license is suspended after the filing of criminal charges. But the statute is oddly silent as
to the issue of the return of any firearms so surrendered. Accused persons are of course
presumed to be innocent until proven guilty, and plaintiff here was never convicted of anything.
The firearms were his private property, and were not subject to any forfeiture proceeding. It thus
appears that the police had no legal authority to keep (much less destroy) his firearms once
criminal charges were dropped.
The issue here is of course complicated by the fact that a valid license is required to
possess a firearm, and that defendant moved to a different state with its own licensing laws
during the course of this dispute. Nonetheless, the police cannot simply seize private property
and refuse to return it; there must be legal authority both for the seizure and for the retention of
the property. And constitutional due process requires a fair procedure, or at a minimum an
adequate post-deprivation remedy, to protect against unlawful seizures.
Defendants contend that their actions here in failing to return plaintiff’s firearms fall into
the category of “random and unauthorized” actions the state could not anticipate, for which pre10
deprivation procedure is inapplicable. See Parratt, 451 U.S. at 541. But it is unclear, at least at
this stage, whether there was any state or town procedure available at all. And it is also unclear
whether a police officer’s actions can be considered “random and unauthorized” within the
meaning of Parratt if there is no procedure or policy in place for the officer to violate.
Defendants further contend that a state-law action for conversion against the individual
officers provides an adequate post-deprivation remedy. But that, too, is doubtful, for at least
three reasons.
First, plaintiff would have to prove that the officers acted intentionally. An action for
conversion requires that “the defendant either did some positive wrongful act with the intention
to appropriate the property to himself or to deprive the rightful owner of it, or destroyed the
property.” Kelley v. LaForce, 288 F.3d 1, 11-12 (1st Cir. 2002). “[I]t is no defense to
conversion for defendant to claim that he acted in good faith, reasonably believing that he had a
legal right to possession of the goods.” Id.4 But “an act which is not intended to exercise
dominion or control over a chattel but is merely negligent with respect to it is not a conversion,
even though it may result in the loss or destruction of the chattel.” Restatement (Third) of Torts
§ 224; see also Damon v. Hukowicz, 964 F. Supp. 2d 120, 143 (D. Mass. 2013) (“One in the
possession of a chattel does not become a converter by making a qualified refusal immediately to
surrender the chattel when the circumstances are such that the demand for immediate surrender is
unreasonable.”) (quoting Restatement (Second) of Torts § 238)).
Second, it is likely that defendants would claim immunity from suit. Although that claim
would likely fail, there is at least some doubt on that score. Section 2 of the Massachusetts Tort
4
Note that there is no private right of action under Mass. Gen. Laws ch. 140, § 129D, so that would not be
an adequate state remedy for plaintiff’s complaint here. Mirsky v. Barkas, 2011 WL 2371879, at *5-6 (Mass. Super.
Ct. Jan. 31, 2011).
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Claims Act provides that tort suits for deprivation of property must ordinarily be brought against
the Commonwealth, to the extent the state officials were acting within the scope of their
employment, and individual employees are immunized.5 But Section 10 of the MTCA further
provides that Section 2 “shall not apply to . . . any claim arising in respect of . . . the lawful
detention of any goods or merchandise by any law enforcement officer.” Mass. Gen. Laws ch.
258, § 10(d); see Vining v. Commonwealth, 63 Mass. App. Ct. 690, 691-96 (2005). That same
section provides that the Commonwealth has not waived its sovereign immunity for claims
arising from intentional torts. Mass. Gen. Laws ch. 258, § 10(c); Mason v. Mass. Dep’t of Envtl.
Prot., 774 F. Supp. 2d 349, 356 (D. Mass. 2011) (explaining that conversion is an intentional tort
for which the Commonwealth cannot be held liable).
Thus, the Commonwealth has explicitly declined to waive its sovereign immunity with
respect to claims arising out of the lawful detention of goods by a law enforcement officer, such
as the conversion claim contemplated here. By providing that Section 2 “shall not apply” to the
listed types of claims, Section 10 also negates the part of Section 2 that absolves public
employees from liability, thereby exposing employees to suits for such claims. In other words,
Section 10(d) does not provide immunity to individual defendants—it only provides immunity to
the Commonwealth. See Nelson v. Salem State College, 446 Mass. 525, 536-37 (2006)
(explaining that, because the MCTA does not waive sovereign immunity for intentional torts, a
public employee may be personally liable for an intentionally tortious act); Baker v. Gray, 57
Section 2 provides that “[p]ublic employers shall be liable for injury or loss of property . . . caused by the
negligent or wrongful act or omission of any public employee while acting within the scope of his office or
employment, in the same manner and to the same extent as a private individual under like circumstances.” Mass.
Gen. Laws ch. 258, § 2. It further provides that “[t]he remedies provided by this chapter shall be exclusive of any
other civil action or proceeding by reason of the same subject matter against the public employer or[] the public
employee . . . whose negligent or wrongful act or omission gave rise to such a claim, and no such public
employee . . . shall be liable for any injury or loss of property . . . caused by his negligent or wrongful act or
omission while acting within the scope of his office or employment.” Id.
5
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Mass. App. Ct. 618, 625 (2003) (explaining that a post-deprivation action for conversion against
a state official who had confiscated plaintiff’s motorboat dealer certificate of number was
available and in fact had been brought); see also Kelley, 288 F.3d at 11-13 (1st Cir. 2002)
(discussing the tort of conversion in connection with confiscated property); Damon v. Hukowicz,
964 F. Supp. 2d at 142-43 (same); cf. Husdon, 468 U.S. at 535-36.6 Therefore, it is likely that
sovereign immunity would not bar a claim for conversion against the individual defendants
here.7 There is, however, authority to the contrary.8
Finally, plaintiff contends that an action for conversion is an inadequate post-deprivation
remedy on the ground that being forced to file a lawsuit of any kind for the return of his firearms
violates due process. See Richer v. Parmalee, 189 F. Supp. 3d 334 (D.R.I. 2016). In Richer, the
plaintiff’s firearms were seized because he was considered a danger to himself and his family.
Id. at 338. Having been released from the mental hospital and never charged with any crime, he
repeatedly requested that his firearms be returned, to no avail. Id. They were finally returned six
6
The MTCA does bar intentional tort claims against officers in their official capacities. Mirsky v. Barkas,
2011 WL 2371879, at *4 (Mass. Super. Ct. Jan. 31, 2011).
It is also possible that Massachusetts common-law immunity would apply to shield defendants. “At
common law, . . . a public official, exercising judgment and discretion, is not liable for negligence or other error in
the making of an official decision if the official acted in good faith, without malice, and without corruption.”
Nelson, 446 Mass. at 537 (granting common-law immunity to officials sued in their individual capacity for the tort
of invasion of privacy). That immunity is only available for discretionary functions; it applies when “a public
officer . . . is authorized or required, in the exercise of his judgment and discretion, to make a decision and to
perform acts in the making of that decision, and the decision and acts are within the scope of his duty, authority and
jurisdiction.” Gildea v. Ellershaw, 363 Mass. 800, 820 (1973). The precise scope of what counts as “discretionary”
under this doctrine is unclear, and, in any event, the Court cannot determine in this context whether the officers, in
refusing to return the weapons and, later, destroying them, were acting in a discretionary capacity.
7
8
Plaintiff points to an unpublished Massachusetts Appeals Court decision that relies on Vining and holds
that § 10(d) provides immunity to law enforcement officers. Laurore v. O’Hearn, 2017 WL 657646 (Mass. App. Ct.
Feb. 17, 2017). The reasoning of that case, however, appears to be flawed, in that it considered the result to be
controlled by Vining, even though the defendant in Vining was the Commonwealth and the defendants in Laurore
were individual officers. Furthermore, the plain language of the statute makes clear that Section 10 does not grant
immunity to officers; it merely retains the sovereign immunity of the Commonwealth with respect to certain actions
by officers.
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years later, after he filed a suit for injunctive and declaratory relief, but the state had provided no
process short of that for him to be heard. Id. The court, applying the test from Mathews v.
Eldridge, 424 U.S. 319, 335 (1976), held that additional post-deprivation process was required,
and entered summary judgment for the plaintiff on his due process claim. Id. at 339-42.
There is certainly some force in the argument that if the only remedy is a lawsuit for an
intentional tort—that is, a remedy that requires a person to hire a lawyer, file suit, pay a filing
fee, litigate, and prove that he was wronged—the due-process clause has not been satisfied. On
the other hand, citizens routinely vindicate their rights through lawsuits, and the Court is not
prepared to say that any time a party must litigate to assert a right—even a straightforward right,
such as the right to one’s own property—that party’s right to due process has also been violated.
Indeed, under some circumstances, the availability of a lawsuit has been held to be adequate
post-deprivation process. See Parratt, 451 U.S. at 543 (holding that a lawsuit under Nebraska
state law was a sufficient post-deprivation remedy).
In any event, the resolution of these questions appears to depend to a significant degree
on the facts of the case. It is far from clear exactly what happened here, and what, if any,
recourse plaintiff had available to him. The issues are therefore not appropriate for resolution on
a motion to dismiss. The motion will accordingly be denied, and the issues raised in this opinion
may be revisited upon the development of a full factual record.
IV.
Conclusion
For the foregoing reasons, defendants’ motion to dismiss is DENIED.
So Ordered.
/s/ F. Dennis Saylor
F. Dennis Saylor, IV
United States District Judge
Dated: February 1, 2018
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