Federal District Court for Massachusetts
Challenge to the Massachusetts requirement that forces residents to bear the burden of proving that they're entitled to exerice an enumerated right.
Filed April 7, 2016
- Does the Second Amendment really protect an individual right when the individual can be forced to prove that they are not prohibited from exercising that right?
- Can an individual be denied access to an enumerated right simple because it is impossible for them to prove that they’re not prohibited by law from obtaining a license that would allow them to exercise that right?
- Can a Massachusetts police chief require an applicant for a firearms license to prove a negative?
Those are the questions raised in Hunt v. Moore.
In 1970, Alan Hunt pleaded guilty to marijuana possession in New York state and paid a $50 fine the same day. Now 65 years old and having lived as a gun owner in Georgia for many years, Mr. Hunt moved to Massachusetts and applied for a License to Carry Firearms, necessary for Massachusetts residents to buy and possess handguns. Despite never having been convicted of any other criminal offenses in forty-six years, the Holliston Police Department refused to issue Mr. Hunt’s License to Carry Firearms. As a result, Mr. Hunt had to surrender both his guns and his right to self-defense.
While Mass. Gen. Law ch. 140, §131(d)(i)(e) generally bars persons who have been convicted of an out-of-state drug possession offense for a substance that is also illegal under Massachusetts law from obtaining a License to Carry, federal court challenges brought by Comm2A have resulted in the Massachusetts Executive Office of Public Safety and Security (EOPSS) issuing a legal advisory directing all police departments to presume applicants with past out-of-state marijuana convictions were in an amount less than an ounce unless records indicates otherwise.
In denying Mr. Hunt’s license, the Holliston Police Chief cited the lack of any mention of the actual word “marijuana” in existing records. Both police and court records of Mr. Hunt’s conviction are missing and presumed destroyed after nearly a half-century. Both the presiding judge and arresting officer are deceased. The sole record of the matter simply states Mr. Hunt was convicted of “Possession of a 6th Degree Dangerous Drug, Class A Misdemeanor”—a crime which would have been the appropriate charge for possession of two marijuana cigarettes in New York in 1970.
In short, Mr. Hunt lacks the evidence necessary to prove that his 1970 conviction does not prohibit him from obtaining a License to Carry firearms. And, under Massachusetts law, the Holliston Police Chief bears no burden to prove or even present evidence that Mr. Hunt is ineligible to be licensed.
This case, filed in the Federal District Court of Massachusetts, seeks a declaratory judgment that Mr. Hunt’s rights were violated and asks for the issuance of Mr. Hunt’s license. By requiring Mr. Hunt to produce records which no longer exist after those records were destroyed through no fault of his own, the Holliston Police Department unconstitutionally shifts the burden to Mr. Hunt to prove he is entitled to exercise a fundamental right. Even worse, the Holliston Police Department rests its decision on the lack of any mention of marijuana in the record while failing to allege just which illegal substance prohibited under Massachusetts law Mr. Hunt actually did possess in 1970.
This case further continues Commonwealth Second Amendment’s efforts to ensure people who were caught with small amounts of marijuana years ago—amounts that have since been decriminalized in Massachusetts—do not suffer a lifetime of disarmament as a result of a minor indiscretion in the distant past. Moreover, this case seeks to push back on burden-shifting by licensing authorities who want the citizen to justify why they should be able to exercise a fundamental right.
Mr. Hunt is represented by Attorney Jeffery T. Scrimo of Lenox, Massachusetts.
Case dismissed when the Holliston PD relented and issued a license to Hunt.