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    Massachusetts Federal Judge Orders Gun Stores Reopened Subject to ‘Social Distancing’ Guidelines

    Massachusetts Federal Judge Orders Gun Stores Reopened Subject to ‘Social Distancing’ Guidelines

    Grants preliminary injunction halting complete closure ordered by Governor, allowing stores to open subject, as the Second Amendment litigants volunteered, to maintenance of social distancing measures within stores.

    Republican Governor of Massachusetts Charlie Baker shut down all gun stores in the state as part of a supposedly health-related measure to fight the spread of Wuhan coronavirus.

    A group of citizens and foundations sued, filing a Motion for a Temporary Restraining Order and Preliminary Injunction (pdf.), seeking among other things, an Order:

    prohibiting the Defendants, their officers, agents, servants, employees, all persons in concert or participation with them and all persons who receive notice of the Court’s Order, from enforcing COVID-19 Executive Order No. 13 and COVID-19 Executive Order  o. 19 (and any other executive order or directive) so as to preclude lawfully licensed firearms and ammunition dealers from conducting retail sales of firearms or ammunition; provided, however, that licensed firearms and ammunition dealers shall be subject to and comply with the social distancing protocols provided by the Massachusetts Department of Health for services deemed “essential.”

    In their Brief (pdf.), they argues that gun stores, like other stores, should be able to open subject to social distancing health rules:

    The Commonwealth of Massachusetts has entirely closed off any and all means for lawabiding private citizens to acquire functional firearms for their defense. At the same time the Defendants took this action, they permitted numerous other retail businesses to continue their operations under limited conditions—meaning that this is not a situation where it is simply not possible to allow any retail businesses to continue operation. Rather, the Commonwealth has permitted the retailers of many other products—including alcohol, hardware, and office supplies—to continue distributing goods to the public.

    The Defendants’ actions have a particularly significant impact here, in the Commonwealth of Massachusetts, because it is impossible to obtain an operative firearm in Massachusetts without the assistance of a licensed gun dealer. Specifically, it is theoretically possible to obtain a gun without using a licensed dealer, but it is impossible to obtain ammunition without a licensed dealer. So, closing all gun stores, without exception, results in a situation where it is illegal to acquire an operative firearm for protection. Period.

    To be sure, the COVID-19 outbreak is an existential threat that requires significant sacrifices and adjustments by all people. But no interest, no matter how compelling it may be, can justify the elimination of constitutional rights.

    The Court held a hearing today. As reflected on the court docket, the court granted the preliminary injunction:

    Clerk’s Notes for Motion Hearing held via video and phone before Judge Douglas P. Woodlock: Court discusses the proposed forms of order submitted by the parties and hears further arguments regarding the motion for preliminary injunction. Court GRANTS the Motion for Preliminary Injunction and will enter the Order to go into effect 12:00 noon on Saturday, May 9, 2020. Defendants move for stay pending appeal which is DENIED. Defendants to answer complaint no later than May 21, 2020. Defendants to file a motion to dismiss no later than May 28, 2020. In addition, the parties shall jointly file a proposed scheduling order no later than May 28, 2020. Further status conference scheduled for May 29, 2020 at 10:00 a.m. (Court Reporter: Kelly Mortellite at [email protected])(Attorneys present: Jensen, Foley, Couture, Kobrick, Klein) Associated Cases: 1:20-cv-10701-DPW, 1:20-cv-40041-DPW(Beatty, Barbara) (Entered: 05/07/2020)

    The Judge’s Order (pdf.) provides in part:

    Following two hearings, (this day and on May 4, 2020) regarding the plaintiffs’ request for interlocutory injunctive relief and after consideration of the parties’ evidentiary and other submissions to date, for the reasons stated during and reflected in the stenographer’s record of the proceedings, it is hereby

    ORDERED that:

    1. Firearms dealers licensed pursuant to Mass. Gen. L. ch. 140, § 122 shall be permitted to conduct sales of firearms and other goods, and may sell ammunition if licensed pursuant to Mass. Gen. L. ch. 140, § 122B, by appointment only, with not more than four appointments per hour. Such firearms dealers are limited to operating only during the period 9:00 a.m. and 9:00 p.m. daily, subject to any further land use limitations imposed by the local government in the jurisdiction where the premises are located as are currently in force.
    2. Firearms dealers subject to this Order shall ensure that the following proper social distancing and public health and safety measures are observed in the conduct of their business under this Order:

    (a) Ensuring that all employees and customers cover their noses and mouths with a mask or cloth face covering;
    (b) Allowing access to hand-washing facilities for customers and employees and allowing employees sufficient break time to wash hands between appointments;
    (c) Providing alcohol-based wipes to customers and employees, if available;
    (d) Establishing procedures to ensure that customers remain at least six feet apart from each other at all times, both inside and outside the business premises;
    (e) Providing full or partial glass or plastic barriers, if feasible between employee areas behind counters or areas open to customers;
    (f) Establishing procedures to sanitize frequent touchpoints throughout the day, including point of sale terminals and registers;
    (g) Establishing procedures to sanitize any merchandise that is handled by customers, but is not purchased and taken away by the customer;
    (h) Establishing procedures under which:

    1. employees and other personnel who are sick shall not return to work without compliance with medically prescribed quarantine procedures; and to the extent they have symptoms of COVID-19 while at work are sent home immediately;
    2. customers who have symptoms of COVID-19 are requested not to enter the premises; and
    (i) Establishing such other procedures that the business deems necessary to limit the spread of the virus that causes COVID-19.

    The Order takes effect Saturday, May 9.

    The Firearms Policy Coalition, one of the plaintiffs, issued the following statement:

    “We are elated that Judge Woodlock has ordered an injunction against Governor Baker and others so that law-abiding individuals can once again purchase firearms and ammunition,” said Adam Kraut, FPC’s Director of Legal Strategy. “The citizens of Massachusetts have been deprived of their right to acquire arms for defense of hearth and home for too long during a time where it is most critical.”

    “State and local governments cannot suspend the Constitution and its guarantee of fundamental human rights,” FPC President Brandon Combs said. “Individuals have a human right to acquire firearms and ammunition for self-defense, and the need for self-defense is especially important during uncertain times. This important victory means people in the Bay State can exercise their right to keep and bear arms.”

    It was extremely smart for the plaintiffs to volunteer to abide by social distancing guidelines. That took health concerns off the table, and allowed focus on the breach of constitutional rights.

    UPDATE:

    The Judge entered an Amended Preliminary Injunction Order (pdf.) It’s not clear from the docket why that was done. The Order is similar to the first.

    ———————–

    McCarthy v. Baker – MA Gun … by Legal Insurrection on Scribd

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    Comments



     
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    redc1c4 | May 7, 2020 at 6:43 pm

    i’d say someone needs to show this decision to the 9th Circus, but those hacks in black would likely issue a stay…


     
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    4fun | May 7, 2020 at 9:16 pm

    Not a lawyer.
    But why isn’t the Color of Law section ever invoked or used?

    18 U.S. Code § 242. Deprivation of rights under color of law
    Whoever, under color of any law, statute, ordinance, regulation, or custom, willfully subjects any person in any State, Territory, Commonwealth, Possession, or District to the deprivation of any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States, or to different punishments, pains, or penalties, on account of such person being an alien, or by reason of his color, or race, than are prescribed for the punishment of citizens, shall be fined under this title or imprisoned not more than one year, or both; and if bodily injury results from the acts committed in violation of this section or if such acts include the use, attempted use, or threatened use of a dangerous weapon, explosives, or fire, shall be fined under this title or imprisoned not more than ten years, or both; and if death results from the acts committed in violation of this section or if such acts include kidnapping or an attempt to kidnap, aggravated sexual abuse, or an attempt to commit aggravated sexual abuse, or an attempt to kill, shall be fined under this title, or imprisoned for any term of years or for life, or both, or may be sentenced to death.


     
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    Randy Steinberg | May 7, 2020 at 10:48 pm

    Golf courses and guns in the same day! Now I can go to the range and the range. Not sure in which order.

    This order baffled me. Tantamount to suspension of 2nd Amendment. Done in the name of “safety.” But guess what, I hadn’t heard even the slightest peep of a gun problem from the law abiding during this whole time. Just an excuse to see what they can curtail.


     
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    Arminius | May 8, 2020 at 2:16 am

    Massachusetts? I thought they hated guns there.


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