Massachusetts ex rel. Powell v. Holmes
| Decision Date | 30 June 2021 |
| Docket Number | Civil Action No. 18-11336-FDS |
| Citation | 546 F.Supp.3d 58 |
| Parties | Commonwealth of MASSACHUSETTS EX REL. Mykel POWELL; Commonwealth Second Amendment, Inc.; Brent Carlton ; and Mykel Powell, Plaintiffs, v. Brian HOLMES; James O'Connor; Donna M. McNamara; Village Gun Shop, Inc. d/b/a Village Vault; Peter Dowd; City of Springfield; Town of Plymouth; Town of Winchester; City of Chicopee ; Town of Dedham ; City of Medford; Town of Reading; Town of Wakefield; Town of Wilmington; Town of Andover ; Town of Foxborough; City of Gardner; Town of Hudson; and Town of Saugus, Defendants. |
| Court | U.S. District Court — District of Massachusetts |
David D. Jensen, Pro Hac Vice, David Jensen PLLC, New York, NY, Margarita G. Smirnova, Margarita Smirnova, Attorney at Law, North Reading, MA, for Plaintiffs Mykel Powell, Commonwealth Second Amendment, Inc.
David D. Jensen, David Jensen PLLC, New York, NY, for Plaintiff Brent Carlton.
Leonard H. Kesten, Thomas R. Donohue, Brody, Hardoon, Perkins & Kesten, Boston, MA, for Defendants SGT. Brian Holmes, James O'Connor, Donna M. McNamara, Town of Wilmington, City of Gardner, Town of Winchester, Town of Foxborough, Town of Andover, Town of Hudson, Town of Plymouth, Town of Reading.
Andrew J. Gambaccini, Reardon, Joyce & Akerson, P.C., Worcester, MA, for Defendants Village Gun Shop, Inc., Peter Dowd.
William F. McGonigle, III, Arrowood LLP, Boston, MA, for Defendant Town of Saugus.
Mark J. Albano, Albano Law, LLC, Springfield, MA, for Defendant City of Chicopee.
David S. Monastersky, Howd & Ludorf, Hartford, CT, for Defendant City of Medford.
Kathryn G. Foster, City of Springfield, Law Department, Springfield, MA, for Defendant City of Springfield.
Bradford N. Louison, Louison, Costello, Condon & Pfaff, LLP, Boston, MA, for Defendant Town of Wakefield.
MEMORANDUM AND ORDER ON DEFENDANTS’ MOTIONS TO DISMISS AND MOTION FOR JUDGMENT ON THE PLEADINGS
This case involves the allegedly improper disposal of firearms by cities and towns in Massachusetts. Plaintiff-relators Mykel Powell, Commonwealth Second Amendment, Inc., and Brent Carlton, on behalf of the Commonwealth of Massachusetts, have sued 14 cities and towns under the Massachusetts False Claims Act for improperly disposing of firearms surrendered under state law. They also assert claims on behalf of the Commonwealth against a local gun shop and two police officers, in their individual and official capacities, for their participation in the alleged firearms-disposal scheme. Powell has brought two claims on his own behalf against three police officers, in their individual and official capacities, and the owner of the gun shop related to the allegedly improper sale of his firearms.
The municipalities and the police officers have moved to dismiss for failure to state a claim upon which relief can be granted. For the reasons set forth below, those motions will be granted in part and denied in part.
The following facts are presented as alleged in the complaint unless otherwise noted.
Mykel Powell is a citizen of Rhode Island. (Compl. ¶ 8).
Commonwealth Second Amendment, Inc. ("Comm2A") is a Massachusetts corporation. (Id. ¶ 9). The president of Comm2A is Brent Carlton, who is a resident of Oregon. (Id. ¶ 10).
Brian Holmes, James O'Connor, and Donna McNamara (collectively, the "Stoughton Defendants") are members of the Stoughton Police Department. (Id. ¶¶ 11-13).
Village Gun Shop, Inc., d/b/a Village Vault, is a Massachusetts corporation. (Id. ¶ 14). It is owned, at least in part, by Peter Dowd, who is a resident of Massachusetts. (Id. ¶ 15).
The Cities of Springfield, Chicopee, Medford, and Gardner, and the Towns of Plymouth, Winchester, Dedham, Reading, Wakefield, Wilmington, Andover, Foxborough, Hudson, and Saugus (collectively, the "Municipality Defendants") are municipalities organized under Massachusetts law. (Id. ¶¶ 16-29).
On November 26, 2015, Powell was arrested by the Stoughton Police Department. (Id. ¶ 36). He was charged with breaking and entering, assault and battery, and intimidation of a witness. (Id. ). As a result of that arrest, the Stoughton Police Department suspended his License to Carry ("LTC") a firearm. (Id. ¶ 37). After advising Powell of the suspension, Holmes took custody of Powell's LTC as well as his handgun, rifle, rifle ammunition, and rifle carrying bag. (Id. ).
The criminal charges against Powell resulted in a continuance without a finding and a period of probation. (Id. ¶ 38). The charges were ultimately dismissed on August 3, 2016. (Id. ).
Over the following two months, Powell, who had since moved to Rhode Island, repeatedly attempted to contact Holmes about his property. (Id. ¶¶ 39-40). He eventually made contact on September 29, 2016. (Id. ¶ 40). According to the complaint, Holmes informed Powell that he would not reinstate his LTC until he made "lifestyle changes." (Id. ). He would, however, transfer the property to a licensed firearms dealer in Rhode Island if Powell obtained the appropriate firearms license for that state. (Id. ).
The complaint alleges that less than one week later, O'Connor instead transferred Powell's property to Village Vault. (Id. ¶ 44). Village Vault then sold the handgun but retained custody of the rifle. (Id. ).1
On October 24, 2016, about a month after speaking with Holmes, Powell obtained a Rhode Island Pistol/Revolver Safety Certificate, which authorized him to purchase pistols and revolvers. (Id. ¶ 41). According to the complaint, no license is necessary to purchase or possess rifles or shotguns in Rhode Island. (Id. ). He then again contacted Holmes, who in turn told him to contact O'Connor. (Id. ¶ 42). O'Connor told Powell that his property had been sent out for "disposal" and could not be returned to him. (Id. ¶ 43).
Powell sued Holmes and O'Connor on May 3, 2017. (Id. ¶ 2). The complaint in that action asserted two counts under 42 U.S.C. § 1983, one for the loss of use of his property and one for the loss of value of his property. Holmes and O'Connor filed a motion to dismiss, which the Court denied. See Powell v. Holmes , 2018 WL 662482 (D. Mass. Feb. 1, 2018). During discovery, Powell "learned of the factual bases" underlying the present action. (Compl. ¶ 2). He then moved to dismiss the action against Holmes and O'Connor voluntarily under Fed. R. Civ. P. 41(a)(2). The Court granted that motion, and the case was dismissed without prejudice on June 29, 2018.
Shortly thereafter, on July 5, 2018, O'Connor advised Powell that the Stoughton Police Department had "re-acquired" the rifle and that Powell could "sell or transfer the firearm to a person or entity with a valid firearm license (FID, LTC and/or FFL)." (Id. ¶ 45). A designee of Powell has since taken possession of the rifle. (Id. ¶ 57).
The complaint alleges that Village Vault and Dowd maintain "arrangements" with several cities and towns in Massachusetts through which police departments transfer to Village Vault certain firearms that have been surrendered under Massachusetts law. (Id. ¶ 46). In exchange, Village Vault either pays the police departments by check or "credits" them an amount that can be used to make purchases from Village Vault. (Id. ¶¶ 46, 48). Village Vault then sells the firearms for its own profit. (Id. ¶ 47).
The complaint identifies 15 municipalities—Stoughton and the fourteen named Municipality Defendants—that operate pursuant to such alleged agreements. (Id. ¶ 46).2 It details specific transactions between those municipalities and Village Vault, including the date of each transaction, the number of firearms transferred, and the payment or credit provided to the relevant police department. (Id. ¶¶ 50-112). It further alleges (on information and belief) that Village Vault and Dowd maintain similar arrangements "with police departments and/or police department personnel throughout the Commonwealth of Massachusetts." (Id. ¶ 49).
On June 27, 2018—two days before Powell's original action was dismissed—Powell and Comm2A filed this action on behalf of the Commonwealth of Massachusetts. Powell also brought a claim under 42 U.S.C. § 1983 on his own behalf. The Commonwealth declined to intervene.
The complaint has since been amended three times. The third amended complaint asserts four claims. Powell, Comm2A, and Carlton assert two claims on behalf of the Commonwealth of Massachusetts: one against O'Connor, McNamara, Village Vault, and the Municipality Defendants for violating the Massachusetts False Claims Act ("MFCA"), Mass. Gen. Laws ch. 12, §§ 5A - 5O, by failing to transfer surrendered firearms to the Massachusetts State Police for auction (Count 2) and one against O'Connor, McNamara, and Village Vault for civil conspiracy (Count 3). Powell individually asserts two claims on his own behalf: one against the Stoughton Defendants for violating 42 U.S.C. § 1983 for deprivation of property without due process (Count 1) and one against Dowd for violating the civil provisions of the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. § 1964(c), for engaging in racketeering activity as the owner of Village Vault (Count 4).
The Stoughton Defendants have moved to dismiss Counts 1 and 3 for failure to state a claim under Fed. R. Civ. P. 12(b)(6). O'Connor, McNamara, and twelve of the fourteen Municipality Defendants have moved to dismiss Count 2 for lack of subject-matter jurisdiction under Fed. R. Civ. P. 12(b)(1) and for failure to state a claim under Fed. R. Civ. P. 12(b)(6).3 The City of Chicopee, which previously answered the complaint, has moved for judgment on the pleadings pursuant to Fed. R. Civ. P. 12(c). It has incorporated by reference the arguments made by the other Municipality Defendants.
Motions to dismiss under Fed. R. Civ. P 12(b)(6) and motions for judgment on the pleadings u...
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