Opinion
Civil Action No. 00-12156-MEL.
March 9, 2001.
MEMORANDUM AND ORDER
Alec Costerus brings this action pro se against the Commonwealth of Massachusetts, various employees of the Commonwealth (collectively, the "Commonwealth"), two Massachusetts towns, Concord and Marion and assorted town employees alleging that they violated his state and federal "constitutional rights" to store and posses firearms. On December 1, 2000, the Commonwealth moved to dismiss the claims against it. The motion is granted.
I.
On April 10, 1978, Costerus applied for and received a Firearms Identification Card ("FID-Card") from the police station in his then hometown of Marion, Massachusetts. The FID-Card allowed him to possess firearms. In the mid — 19805, Costerus moved out of Massachusetts. Under Massachusetts gun laws (M.G.L. Ch. 140, §§ 121-131P), Costerus was required to notify the authority that had granted him his FID-Card of his move within thirty days. Costerus failed to notify the Marion Police Department. Subsequently, Costerus moved to Concord, Massachusetts, where he lives today.
In 1998, Massachusetts overhauled its gun laws, generally increasing the regulation of gun ownership. Under St. 1998, Ch. 180, § 73, the plaintiff, as a holder of an FID-Card issued before the new law, had one year to comply with the new restrictions.
Costerus' Complaint centers around a purportedly illegal search, seizure and arrest by the Corcord police which occurred on March 21, 1999. On that day, Costerus alleges the following: that he had a verbal fight with his wife; after the fight, he sought police assistance to gather "a few days worth of clothes;" the police instructed him to go to the police station and to wait while defendant, Officer Barry Neal spoke to his wife; while at the station, Costerus saw a pamphlet concerning the new gun laws; Costerus then inquired about what he needed to do to comply with the new law; when Officer Neal returned from the Costerus' home (where Costerus' wife had told him that a non-physical fight had occurred), Officer Neal questioned Costerus about his gun ownership and whether he had a valid FID-Card; Costerus answered, "yes — but it was issued twenty years ago — however, I still think it is valid;" Officer Neal then responded "a lot has changed in twenty years" and arrested Costerus for unlawful possession of a firearm, presumably believing that he did not have a valid FID-Card; Officer Neal ordered another officer to search Costerus' home; the officer then searched and seized several guns from the home without consent or a warrant; while Costerus was being booked, the police required that he give them his social security number or else he would "never get out of here;" and finally, that Costerus was then held overnight in police custody.
On March 22, 1999, Costerus was arraigned in Concord District Court and charged with two counts of illegal possession of a firearm (M.G.L. ch. 269, § 10(h)) and with domestic assault and battery (M.G.L. ch. 265, § 13A). Later, Costerus was charged with not properly securing weapons which were found in his home (M.G.L. ch. 140, § 131L(c)). All of the charges, except for not properly securing his firearms, were subsequently voluntarily dropped by the Commonwealth. This final charge was dropped because the state court had ruled that the Commonwealth's evidence was barred as the "fruit of a poisonous tree" because Officer Neal had failed to give Costerus Miranda warnings when he was arrested.
After the charges against Costerus had been dropped, he filed an application with the Concord Chief of Police, Leonard J. Wetherbee, for a "License to Carry," the license created under the new 1998 law that allowed the holder to own certain types of guns ("large capacity weapons"). Chief Wetherbee denied his request because of Costerus': (1) "failure to comply with a Concord Police Administrative Policy requiring the completion of a firearms safety course when applying for a License to Carry;" and (2) "his recent involvement in domestic and firearms related issues in the Town of Concord." Costerus then appealed the denial to the Massachusetts Superior Court, which reversed it as an abuse of discretion. Chief Wetherbee is currently appealing this decision. Costerus also applied to renew his FID-Card before the expiration of the one-year grace period. After a two-month investigation, which according to Costerus "illegally invaded into the plaintiff's privacy," Chief Wetherbee granted the license.
Based on these events, Costerus, proceeding pro Se, has filed a ninety-four page Complaint with over forty Counts mainly asserting that the Commonwealth, Concord and Marion defendants violated his rights to store and possess firearms under the Massachusetts and federal constitutions. The Commonwealth now moves to dismiss all of the Counts against it because: (1) Eleventh Amendment immunity bars some of Costerus' claims; (2) Costerus' Due Process and Second Amendment claims are not actionable; (3) The district attorney defendants, Martha Coakley and Erin Duggan are entitled to absolute prosecutorial immunity; and (4) Costerus' § 1983 claims are invalid because the Commonwealth and its officials are not "persons" subject to the statute.
II.
A. Eleventh Amendment Immunity
The Commonwealth argues that the Eleventh Amendment bars Counts 8, 9, 20, 24, 25, 30, 34 and 35 because these Counts attempt to hold the Commonwealth liable for violations of Massachusetts law in federal court. In support of its position the Commonwealth cites Pennhurst State Sch. and Hosp. v. Holderman, 465 U.S. 98, 121 (1984), in which the Supreme Court held that a suit in federal court against a state alleging violation of its own laws is barred by the Eleventh Amendment.
Costerus responds that Eleventh Amendment immunity does not apply because: (1) he is a citizen of Massachusetts and is suing Massachusetts; (2) he is requesting prospective injunctive relief; and (3) the supplemental jurisdiction statute, 28 U.S.C. § 1367, overrides, or abrogates, the Eleventh Amendment.
The Commonwealth's motion is granted.The reasons given by Costerus for rejecting Eleventh Amendment immunity are without merit. First, although the words of the Eleventh Amendment would appear to allow suits against a state by its own citizens, the Amendment has been consistently interpreted to bar such suits. Hans v. Louisiana, 134 U.S. 1 (1890).
The commonwealth has moved to dismiss Counts 24, 25, and 34 based on the Pennhurst rule, counts 25 and 34 make claims exclusively under federal law. Count 24 makes claims under both Massachusetts and federal law. The Commonwealth's Pennhurst argument has been understood as requesting only the dismissal of claims brought under Massachusetts law and accordingly, Counts 25, 34 (federal claims) and those portions of Count 24 which are based exclusively on federal law are not dismissed based on Pennhurst.
Second, the fact that Costerus seeks to remedy purported violations ofMassachusetts law through prospective injunctive relief is irrelevant to Eleventh Amendment analysis. As the Supreme Court explained inPennhurst, 465 U.S. at 106: "a federal court's grant of relief against state officials on the basis of state law, whether prospective or retroactive . . . conflicts directly with the principles of federalism that underlie the Eleventh Amendment."
Third, Costerus' argument that Congress abrogated the States' Eleventh Amendment immunity in passing the supplemental jurisdiction statute ( 28 U.S.C. § 1367) is without merit. In order for Congress to have abrogated the States' Eleventh Amendment immunity through the passage of the supplemental jurisdiction statute, it would have had to have passed the statute both: (1) pursuant § 5 of the Fourteenth Amendment; and (2) with an "unequivocal" intent to abrogate the States' Eleventh Amendment immunity. Neither factor is even arguably present here. See Freeman v. Oakland Unified Sch. Dist., 179 F.3d 846 (9th Cir. 1999) (holding that in enacting 28 U.S.C. § 1367 Congress did not abrogate the States' Eleventh Amendment immunity).
Seminole Tribe of Florida v. Florida, 517 U.S. 44 (1996) and its progeny have held that claims of Congressional abrogation of Eleventh Admendment immunity could only be made under § 5 of the Fourteenth Amendment.
Green v. Mansour, 474 U.S. 64, 68 (1985).
B. Costerus' Second Amendment Claims
The Commonwealth moves to dismiss Counts 6, 7, 9, 11, 12, 16, 17, and 22 to the extent that they rely on the Second Amendment because the Amendment: (1) is inapplicable to the States; and (2) does not create an individual right. Presser v. Illinois, 116 U.S. 252, 265. (1886); United States v. Miller, 307 U.S. 174, 178 (1939).
Costerus responds that a passing reference made in Justice Harlan's dissent in Poe v. Ullman, 367 U.S. 497, 543 (1961), to the "right to bear arms" and quoted in two majority opinions not dealing with the Second Amendment, establishes such a right.
Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 848 (1992); Moore v. City of East Cleveland, 431 U.S. 494, 502 (1976).
The Commonwealth's motion is granted. Presser and Miller control. Justice Harlan's reference in his dissent in Poe, to "the right to bear arms" does not purport to be an adjudication that such a right exists and the quotation of his dissent in later cases appears solely in a discussion of the nature of Due Process.
Moreover, even if the Second Amendment did confer an individual right (enforceable against a State), Costerus has not demonstrated how the Commonwealth's statutory scheme abridged the right. The Commonwealth's gun control statute allows law-abiding persons to possess firearms with certain restrictions intended solely to insure the safety of its citizens. Such a statute, which strikes a reasoned balance between the interests of gun owners and the interests of citizens to be free from the potential dangers of guns does not offend, even a quite expansive and personal conception, of the Second Amendment. Accordingly, Counts 6, 7, 9 and 16 are dismissed in their entirety and Counts 11, 12, 18, and 22 are dismissed to the extent that they make Second Amendment claims.
C. Costerus' Due Process Claims
In Counts 11, 14, 15, 16, 17, 19, 22 and 25 Costerus asserts that the Commonwealth's gun statute violates Due Process because it grants the Chiefs of Police discretion to: (1) deny Costerus a "license to carry;" (2) refuse to renew his FID-Card; and (3) seize his guns. Moreover, Costerus argues that "because M.G.L. Ch. 140, § 131L is a new statute with no mens rea requirement, it violates [Costerus'] Fifth Amendment due process rights [because he can be] subject to prosecution without proof of knowledge that he was violating the statute." Complaint, ¶ 178.
The Commonwealth moves to dismiss. It argues that: (1) the statute complies with Due Process because adequate post-deprivation remedies are available; and (2) Costerus cannot assert Due Process claims based on denials of gun licenses because neither a "property" nor "liberty" interest is implicated. The Commonwealth also denies that its gun statute imposes criminal liability for weapons storage without requiring mens rea, a guilty state of mind.
The Commonwealth's motion is granted. Costerus' Due Process claims based on the Commonwealth's initial denial of a gun license fail because Massachusetts provides an adequate post-deprivation remedy. Under M.G.L. ch. 140, § 129B, Costerus was entitled to and received judicial review of the initial gun license denial. The Supreme Court has held that the availability of post-deprivation judicial review is a particularly important factor in determining whether Due Process has been accorded.Zinermon v. Burch, 494 U.S. 113 (1990). Because judicial review was readily available to Costerus, his Due Process claims are not actionable.
Many of these claims also fail because neither a "property" nor a "liberty" interest is implicated by the Commonwealth's initial denial of a "License to Carry." Costerus did not have a "legitimate claim of entitlement" to a "License to Carry." Chief of Police of Shelburne v. Mover, 16 Mass. App. Ct. 543, 547, 453 N.E.2d 461 (1983) (plaintiff did not have a liberty or property interest in a gun license); see, Board of Repents v. Roth, 408 U.S. 564 (1972) (describing the stringent standard for making a federal Due Process claim based on an "entitlement"). An applicant seeking "License to Carry" has neither a "property" nor "liberty" interest, but is seeking a privilege, which can be extended (or refused) by the Commonwealth without Due Process implications. See Medina v. Rudman, 545 F.2d 244, 250-51 (Pt Cir. 1976) (holding that a potential greyhound license applicant under New Hampshire law had neither a liberty or property interest in her application); Luk v. Commonwealth, 421 Mass. 415, 658 N.E.2d 664, 669 (1995) (holding that a driver's license is neither a contract nor property right); Town of Milton v. Commonwealth, 416 Mass. 471, 623 N.E.2d 482, 484 (1993) (holding that under Massachusetts law for a statute to create a contract there must be clear legislative intent to do so); and Mosby v. McAteer, No. 99-6504, 2001 WL 91407 (R.I.Super. Jan. 10, 2001) (holding that an applicant for a gun license under Rhode Island's parallel gun licensing statute did not have either a "liberty" or "property" interest in their application)
Similarly, Count 21, Costerus' "impairment of contract" claim is based on his FID-Card which he alleges is a "contract" with the Commonwealth. This claim is dismissed. Under Massachusetts law, Consterus' FID-Card was a license, not a contract, and cannot be the basis of an impairment of contract claim. See Luk 658 N.E.2d at 669 (holding that a driver's license is not a contract right). Count 25, alleges that the Commonwealth conspired with local authorities to deny Costerus the "privilege" of gun ownership purportedly in violation of the Due Process Clause. This claim is without merit because even if officers of the Commonwealth had "conspired" to deprive him of gun ownership such a claim would not be actionable in federal court because the "conspiracy" did not deprive him of any federally protected right and adequate post-deprivation remedies exist.
Nor does the Commonwealth's criminal firearms storage statute (M.G.L. 140, § 131L) violate Due Process. Contrary to Costerus' argument, the courts have held that violation of a parallel statute (M.G.L. ch. 269, § 10(a)) requires a guilty state of mind. Commonwealth v. Sampson, 383 Mass. 750, 422 N.E.2d 450, 456 (1981) and Commonwealth v. Jackson, 369 Mass. 904, 344 N.E.2d 166, 173 (1976), both held that a guilty state of mind is required in order to convict a person of the closely analogous crime of unlawful possession of a firearm and there is no reason to believe that the Supreme Judicial Court would rule any differently with respect to the firearms storage statute then it did when presented with the firearms possession statute.
D. Costerus' Claims Against the District Attorney Defendants
In Counts 6, 8, 9, 11 and 33, Costerus asserts claims against District Attorney Martha Coakley and Assistant District Attorney Erin Duggan for their roles in prosecuting him for the events of March 21, 1999. The Commonwealth moves to dismiss on the grounds of prosecutorial immunity. The Commonwealth's motion is granted. Coakley and Duggan are entitled to absolute immunity from a suit for monetary damages for actions taken in their official capacity as advocates of the state. Buckley v. Fitzsimmons, 509 U.S. 259, 269 (1993). Count 33 is dismissed. E. Costerus' 42 U.S.C. § 1983 Claims Against the Commonwealth
Counts 6, 8, 9 and 11 are already dismissed, as described above, by either the Eleventh Amendment or because they do not state a federal claim. Count 33 is dismissed against the District Attorney defendants because it asserts a claim exclusively for money damages which is contrary to Buckley's absolute immunity rule. Costerus claims that he may sue the district attorney defendants for prospective injunctive relief. Costerus is correct, however, as his Complaint is currently written, it does not do so.
In Counts 24, 34 and 35, Costerus seeks to hold the Commonwealth liable under 42 U.S.C. § 1983 for the actions of its officers undertaken in their official capacities which purportedly violated federal law. The Commonwealth moves to dismiss, arguing that neither it nor its officers are "persons" subject to § 1983, citing Will v. Michigan Dep't of State Police, 491 U.S. 58 (1989), in support of its position. The Commonwealth's motion is granted to the extent that it seeks to prevent Costerus from suing the Commonwealth or its officials for money damages. In Will, 491 U.S. at 70 n. 10, the Supreme Court noted that while generally a state official is not a "person" subject to suit under § 1983, a state official is considered a person under § 1983 when she is sued in her official capacity for prospective injunctive relief. Thus, to the extent that Costerus seeks prospective injunctive relief under § 1983 against officials of the Commonwealth his claims are not barred by Will. However, this point is academic. These Counts still fail to state a claim because, as described above, Costerus has not alleged an actionable violation of federal law.
III.
From Costerus' ninety-four page Complaint and other filings it is clear that he is an intelligent and tenacious person who is understandably troubled by his interactions with the Concord Police Department over his possession of firearms. However, the fact that Costerus appears to have stated a claim against Concord does not give him an unfettered license to file a multiplicity of patently frivolous claims against either the Commonwealth or the Town of Marion. Fed.R.Civ.P. 11 prohibits such conduct even by a party appearing pro se. In the future, Costerus should exercise more care in separating his tenable legal arguments from those which are unsupportable. The Commonwealth's motion to dismiss is granted. Costerus' state law claims and his federal claims which are barred exclusively by Zinermon are dismissed without prejudice. Costerus' other federal claims are dismissed with prejudice.
It is so ordered.