Opinion
No. 2007-00803.
May 28, 2008.
MEMORANDUM AND ORDER
1. Introduction. This is a civil action in which the plaintiff, Joseph J. Zajac, III ("plaintiff") alleges that the defendant John Kelly, Chief of Police in the Town of Littleton and the Town of Littleton (defendants) are liable to him for damages because they deprived him of his federal constitutional rights (counts 1-4 alleging violations of 42 U.S.C. § 1983) and committed an abuse of process (count 5). The defendants have filed a motion to dismiss. See Mass. R. Civ. P. 12 (c)
2. Background At the heart of the plaintiff's claims is the decision taken by defendant Kelley on August 5, 2004 to revoke the plaintiff's license to carry a firearm on grounds that the plaintiff was not a suitable person to hold such a license. The plaintiff sought judicial review of that decision before the district court which upheld the revocation. See Exhibit A to the Defendants' Memorandum of Law. There is no evidence before the court that the plaintiff sought further review of the district court decision. One of the factors that led to defendant Kelly's decision, and perhaps even the principal factor, was his assessment of an event which occurred at the plaintiff's home in Bolton on May 1, 2004. On that day, there was an incident involving the plaintiff and his wife, Pamela J. Trueblood (then Pamela J. Zajac). Treating the allegations of the complaint as true, the plaintiff was physically attacked by his wife while working in his home office at 10:00 a.m. The plaintiff used physical force to defend himself. Later that day, plaintiff's former wife traveled to the Bolton Police Department and reported that she had been the victim of domestic violence committed by the plaintiff. Shortly thereafter, the plaintiff telephoned the Bolton Police Department and reported that he had been attacked by his wife and that she had a history of emotional and psychological problems and had previously made unfounded complaints against two former husbands. At approximately 4:30 p.m. that day, the plaintiff was arrested by the Bolton Police Department and charged with domestic assault and battery against his former wife. He was held in police custody for several days until his arraignment on May 3, 2004.
3. The plaintiff also alleges, and for purposes of the defendant's motion the court assumes that on May 3, 2004, the Chief of Police of the town of Bolton issued a letter to the plaintiff purporting to suspend his license to carry a firearm. On June 29, 2004, the criminal charges against the defendant were dismissed. On July 16, 2004, the Bolton Police Chief send a package of material about the May 1, 2004 incident to the defendant Kelly and urged Chief Kelly to revoke the defendant's license to carry a firearm. Chief Kelly conducted a hearing in the matter which consisted of a personal meeting with the plaintiff on July 19, 2004. Chief Kelly afforded the defendant an opportunity to explain his wife's past behavior, and he listened to plaintiff's account of the events of May 1, 2004 at his home in Bolton. On August 5, 2004, defendant Kelly issued a letter to the plaintiff revoking his license to carry a firearm.
4. The plaintiff attaches great significance to several events which occurred after the revocation of his license by Chief Kelly. First, plaintiff reports that he filed a civil suit against his former wife and secured an attachment as prejudgment security in the event he prevails. Second, the plaintiff reports that he received a financial settlement from the town of Bolton for the actions taken by its chief of police and officers concerning the events on May 1, 2004
5. Rulings of law. The plaintiff's alleges several federal constitutional violations including (I) a claim that defendant Kelly did not intervene and prevent the Bolton police from unlawfully suspending his license to carry a firearm (count 1); (ii) claims that the defendant Town of Littleton failed to properly train and supervise its police chief (counts 2 and 3); (iii) a claim that defendant Kelly and others unnamed conspired to falsely prosecute criminal charges against the plaintiff (count 4); and a claim that defendant Kelly and others unnamed conspired to intentionally abuse legal process (count 5). This court has jurisdiction over the plaintiff's claims under 42 U.S.C. § 1983. SeeRzeznik v. Chief of Police of Southampton, 374 Mass. 475, 484 n. 8 (1978). Such cases are governed by principles of federal law.Harris v. Board of Trustees of State Colleges, 405 Mass. 515, 519 (1989).
6. The short answer to the question raised by the defendants' Motion to Dismiss is that it must be allowed because the factual allegations set forth in the complaint, viewed in the light most favorable to the plaintiff, do not support any of the five claimed violations alleged against the defendants. In a case such as this in which the plaintiff maintains that he was deprived of a right or a privilege, it is incumbent on him to allege facts that establish that the state actor, in this case the chief of police, acted for constitutionally impermissible reasons. See Rosenfeld v. Egy, 2003 WL 222119 (D. Mass. 2003) *10-12;Rzeznik, supra, 374 Mass. At 485. Apart from the cogent arguments made by counsel for the defendants in their Memorandum of Law in support of the motion to dismiss, a few additional observations are worth noting. As for count (1) of the plaintiff's complaint, there is no duty on the part of a municipal chief of police to intervene in a police investigation and prosecution undertaken and carried out by a police chief of another municipality. In fact, plaintiff has not cited any authority nor has this court discovered any authority that would even authorize the police chief of one municipality to superintend or even become involved in an investigation of an incident that occurred in another municipality. As for counts (2) and (3), the plaintiff has failed to identify any practice or policy of the Town of Littleton that deprived him of a federal constitutional right. There is no derivative liability on the part of a municipality under § 1983 for alleged violations of constitutional rights by its employees. The only action complained of by the plaintiff was taken by the Chief of Police of Littleton who revoked the plaintiff's license to carry a firearm. The plaintiff has utterly failed to allege any official policy, procedure or training that the Town of Littleton implemented or failed to implement that caused the plaintiff to suffer a deprivation of his constitutional rights. There is no basis for a finding that the plaintiff was deprived of procedural due process by the police chief or the town. He was given a hearing by defendant Kelly and a full opportunity to present evidence in support of his position. See Harris, supra, 405 Mass. at 522. Finally, as for counts (4) and (5), the plaintiff has failed to allege facts that would support an inference that defendant Kelly entered into any unlawful agreement with others to deprive the defendant of his federal constitutional rights. The plaintiff merely points out that a request was made by the police chief of the Town of Bolton that his firearm license be suspended. The plaintiff has failed to allege facts that would support a finding that Chief Kelly lacked a basis for his determination that the defendant was a suitable person to hold a firearm license. Since the plaintiff failed to seek review of the district court decision upholding the action taken by Chief Kelly, this court will presume that Chief Kelly had a valid basis for the action he took.
It is important to bear in mind the observation of the Appeals Court in Chief of Police of Shelburne v. Moyer, 16 Mass. App. Ct. 543, 547 (1983): "There is no right under art. 17 of the Declaration of Rights of the Massachusetts Constitution for a private citizen to keep and bear arms and thus to require that a citizen have a license to do so is not unconstitutional (Commonwealth v. Davis, 369 Mass. 886 [1976]); nor is there any question of a property right or deprivation of liberty involved in the statutory procedures for obtaining a license to carry firearms. The full panoply of procedures usually available at a trial is not required in the review by a District Court in a case of this nature." The plaintiff does not allege that he was deprived of a federal constitutional right to a license to carry a firearm. Thus, there is no occasion to consider the applicability, if at all, of the Second Amendment to the United States Constitution. See Parker v. D.C., 478 F.3d 370 (D.C. Cir. 2007), cert. granted, sub. nom., District of Columbia v. Heller, 128 S. Ct. 645 (2007).
ORDER
For the above reasons, the plaintiff has failed to satisfy the minimum requirements for alleging a deprivation of federal constitutional rights or any rights secured under state law and therefore his complaint isDISMISSED.