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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

And this governor is a Republican? Oy vey.
There’s something in the water in Boston, and it ain’t tea.

    A Massachusetts Republican is nothing at all like a real republican. Here, republican is just a word such as an article of speech. Baker is somewhat like another non republican, Mitt “Moonbat” Romney.

    This state is eternally damned as a result of toxic Kennedy syndrome.

      OH Deplorable in reply to NotKennedy. | May 8, 2020 at 11:16 am

      The Republican Party is still rife with “anti-Trump Republicans”. They’re biding their time until DJT is gone from the Presidency. Then they’ll join the Democrat brethren with the anti-Trump animosity, and the country will swing back towards the big centralized government approach the Washington insiders have determined that is “in our bets interests”. In Washington at a certain level, you can’t tell a Democrat from a Republican, they’re all swamp dwellers.

    Milhouse in reply to GWB. | May 7, 2020 at 4:38 pm

    By MA standards, he’s a Republican.

    Many commenters on this blog seem to adore Giuliani, who is also only a Republican by NY standards, if that — he also ran on the Liberal Party ticket.

    And the adulation on this blog for Binyamin Netanyahu is something to behold, which is odd since he’s to the left of such despised RINOs as John McCain, Lindsay Graham, and Susan Collins.

      McGehee in reply to Milhouse. | May 7, 2020 at 4:49 pm

      I think we like Netanyahu because he’s less leftist than the handful of most likely alternatives over there.

        Milhouse in reply to McGehee. | May 8, 2020 at 2:36 am

        Yes, he’s better than most of the alternatives, which is why I was hoping he’d get a majority and not have to do this damned deal he’s in now. But the fact remains that he’s not very good, and every time I point it out on this blog I get hate from people who think the sun shines out of his nether regions, that he’s the great conservative hope. He’s not. He’s the ultimate squish. He talks a good game, and then rolls over at the slightest pressure. The only thing he truly fights for is his own survival. And yet he’s not only the best hope the country has right now, but like Trump he’s blessed with enemies who are so deranged that any normal person is driven to side with him in reaction to them.

      Not every dog has his day but Giuliani had his as US Attorney and Mayor. Outside of NYC, he is out of his elemenet.

      McCain was as sifty and shifty as they come, touched my the devil, himself. It is repugnant that they choose to die in office rather than serve the interests of the constituents of the country. For now, I’d guess that McCain is a cabana boy for Arlen Specter on one of Murtha’s River Styx ferries.

      NancyBoy has been blessed to have little competition in SC and he probably stays closely in touch with those who matter. I was never sure which of them, McCain or NancyBoy wore the house dress and ankle socks on the special time together. Maybe they swapped off?

      Snow? Maine is a huge state with a smaller population than Dallas, TX but every bit as spirited. They are probably lucky to have her–even if America is not.

      Netanyau knows his way around Boston better than I do–which is not saying much since I am “from away” in Bay Speak. He has kept Israel intact when others would have rolled over to Palestinians, as an expedient.

    MAJack in reply to GWB. | May 7, 2020 at 8:26 pm

    Charlie Baker, a sheep in sheep’s clothing.

    rocky71 in reply to GWB. | May 8, 2020 at 12:59 pm

    A Massachusetts Republican is simply a Democrat who’s not accepted by The Party’s in-crowd

Oh! If history is any indication this isn’t over yet. Anyone want to wager as to weather or not one or more dealers will see hostel visits form the state health department?

    GWB in reply to Shadow5. | May 7, 2020 at 4:32 pm

    Why would the dealers be in free or low-cost rental accommodations? And why would the health dept. visit them there? Is the hostel dirty and filled with bugs?

    And I never bet on the weather.

“Republican Governor of Massachusetts Charlie Baker shut down all gun stores in the state”

I remember that he and his staff took oaths to obey the federal and Massachusetts constitutions.

Their memories are short. Not only that, they’re considered, by their own made-up rules, “essential,” continuing to get a paycheck and not feeling the pains they have imposed.

The Virginia Declaration of Rights (1776), Section 5,

“That the legislative and executive powers of the state should be separate and distinct from the judiciary; and that the members of the two first may be restrained from oppression, BY FEELING AND PARTICIPATING THE BURDENS OF THE PEOPLE, they should, at fixed periods, be reduced to a private station, return into that body from which they were originally taken”

healthguyfsu | May 7, 2020 at 5:25 pm

Charlie Barker is the name of a used car salesman in my area.

Now do California. Newmussolini is letting the counties decide.

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

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.

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.

Massachusetts? I thought they hated guns there.

    Obie1 in reply to Arminius. | May 8, 2020 at 6:52 am

    There is a significant population of gun owners here in MA. Unfortunately, we are hugely outnumbered by moonbats.

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