Ngo v. Evans

United States District Court
District of Massachusetts (Boston)
CIVIL DOCKET FOR CASE #: 1:14-cv-13670-RGS

Ngo et al v. Evans
Assigned to: Judge Richard G. Stearns
Cause: 42:1983 Civil Rights Act
Date Filed: 09/22/2014
Date Terminated: 11/07/2014
Jury Demand: None
Nature of Suit: 440 Civil Rights: Other
Jurisdiction: Federal Question

Summary/Issues:  2A: Challenges MA firearm license application process on its face and as applied on both 2A and 14A grounds; also alleges violation of supremacy clause regarding documents accepted as proof of citizenship.

Filing DateFiling PartyDocument Description
11/7/2014CourtOrder of Dismissal
11/7/2014CourtJudge Richard G. Stearns: ELECTRONIC ORDER entered finding as moot 5 Motion for TRO (RGS, int2)
11/7/2014CourtJudge Richard G. Stearns: ELECTRONIC ORDER entered granting 14 Motion to Dismiss. This matter was heard by the court on November 6, 2014. The issue is this. To be eligible for a license to carry firearms in Massachusetts, an applicant must provide the appropriate licensing authority with, among other things, proof of residency, age, and U.S. citizenship. The constitutionality of these requirements is not at issue. Plaintiff Phuong Ngo, the foreign-born son of a naturalized U.S. citizen, is a resident of Boston. He applied in July of 2014 to the Boston Police Department for a license to carry firearms. Shortly prior to a fitness interview scheduled for August 21, 2014, Ngo was told by an unidentified uniformed officer in the Licensing Unit that he was required to prove his citizenship by presenting either a birth certificate or naturalization papers, neither of which are available to him. The officer refused to accept his U.S. passport as proof that he is a U.S. citizen.On September 22, 2014, Ngo, together with Commonwealth Second Amendment, a gun rights advocacy group, filed this Complaint with requests for injunctive and declaratory relief. On being served with the lawsuit, the Boston Police Department, through Detective Lieutenant John McDonough, the Commander of the Licensing Unit, updated its written policy (Document Check List) to specify a valid U.S. passport as an acceptable means of proof of U.S. Citizenship. See Ex. 2 to Def.’s Mot. to Dismiss (Dkt # 14).In light of the formal change of policy, the court no longer has before it a justiciable controversy and the matter is moot. “The doctrine of mootness enforces the mandate ‘that an actual controversy must be extant at all stages of the review, not merely at the time the complaint is filed.'” Mangual v. Rotger-Sabat, 317 F.3d 45, 60 (1st Cir. 2003), quoting Steffel v. Thompson, 415 U.S. 452, 460 n.10 (1974). A case is moot when a court cannot give “‘any effectual relief whatever'” to the potentially prevailing party. Church of Scientology of California v. United States, 506 U.S. 9, 12 (1992), quoting Mills v. Green, 159 U.S. 651, 653 (1895). It is true that “a [] voluntary cessation of a challenged practice does not deprive a federal court of its power to determine the legality of the practice.” City of Mesquite v. Aladdin’s Castle, Inc., 455 U.S. 283, 289 (1982). This exception, however, is to be invoked only “if there is some demonstrated probability that the same controversy, involving the same parties, will reoccur, and if the challenged action would evade review because it is in its duration too short to be fully litigated prior to cessation or expiration.” Marek v. State of Rhode Island, 702 F.3d 650, 654 (1st Cir. 2012) (internal quotation marks and citations omitted). Here, there is no evidence of the likelihood of the recurrence of the same controversy between the Police Commissioner and Plaintiff. Equally important, if the Department were to revert to the prior policy (or lack thereof), the matter would not evade timely review by the courts. It is true that the Declaratory Judgment Act gives federal courts considerable discretion in deciding whether to grant declaratory relief. See Ernst & Young v. Depositors Econ. Prot. Corp., 45 F.3d 530, 534 (1st Cir. 1995). That said, under the circumstances presented here, “it would be pointless either to enjoin the enforcement of a regulation that is no longer in effect or to declare its constitutional status.” New England Reg’l Council of Carpenters v. Kinton, 284 F.3d 9, 18 (1st Cir. 2002). Because the matter is moot, defendant’s motion to dismiss is ALLOWED. It is not necessary for the court to reach the issue of associational standing raised with respect to Commonwealth Second Amendment. (RGS, int2)
11/6/2014CourtELECTRONIC Clerk’s Notes for proceedings held before Judge Richard G. Stearns: Motion Hearing held on 11/6/2014 re 14 MOTION to Dismiss filed by William B. Evans; Oral Argument; matter taken under advisement. (Court Reporter: James Gibbons at present: Foley, Smirnova for plas; Taub for deft) (Seelye, Terri)
10/31/2014CourtELECTRONIC NOTICE Setting Hearing on Motion 14 First MOTION to Dismiss : Motion Hearing set for 11/6/2014 02:00 PM in Courtroom 21 before Judge Richard G. Stearns. (Zierk, Marsha)
10/28/2014PlaintiffPlaintiffs’ Memorandum of Law In Opposition to Defendant’s Motion to Dismiss
10/14/2014DefendantDefendant Boston Police Commissioner William B. Evans, Memorandum of Law In Support of Its Motion to Dismiss Plaintiffs’ Complaint
10/14/2014DefendantDefendant Boston Police Commissioner William B. Evans, Motion to Dismiss Plaintiffs’ Complaint
10/14/2014DefendantNotice of Appearance for Attorney Nicole I. Taub
9/24/2014CourtJudge Richard G. Stearns: ELECTRONIC ORDER entered granting 3 Motion for Leave to Appear Pro Hac Vice Added Smirnova. Attorneys admitted Pro Hac Vice must register for electronic filing if the attorney does not already have an ECF account in this district. To register go to the Court website at Select Case Information, then Electronic Filing (CM/ECF) and go to the CM/ECF Registration Form. (Flaherty, Elaine)
9/23/2014PlaintiffSummons Returned Executed as to Defendant William B. Evans
9/23/2014PlaintiffRule 7.1 Corporate Disclosure of Plaintiff Commonwealth Second Amendment, Inc.
9/23/2014CourtSummons In A Civil Action
9/23/2014CourtELECTRONIC NOTICE of Case Assignment. Judge Richard G. Stearns assigned to case. If the trial Judge issues an Order of Reference of any matter in this case to a Magistrate Judge, the matter will be transmitted to Magistrate Judge Judith G. Dein. (Abaid, Kimberly) (Entered: 09/23/2014)
9/22/2014PlaintiffProposed Temporary Restraining Order
9/22/2014PlaintiffMemorandum of Law in Support of Plaintiffs’ Application for Temporary Restraining Order and After Hearing a Preliminary Injunction
9/22/2014PlaintiffPlaintiff’s Motion for Temporary Restraining Order and Preliminary Injunction
9/22/2014PlaintiffVerification of Complaint
9/22/2014PlaintiffMotion to Admit Margarita Smirnova Pro Hac Vice
9/22/2014PlaintiffCivil Cover Sheet
9/22/2014PlaintiffVerified Complaint and Request for Injunctive Relief