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Law360 (May 29, 2020, 12:49 PM EDT) -- Massachusetts Gov. Charlie Baker's decision to allow gun shops to reopen during the pandemic following a successful legal challenge by retailers doesn't moot their case, an attorney for the stores told a federal judge Friday, citing the possibility that a second wave of the coronavirus could trigger another shutdown.
During a telephone hearing, attorney David D. Jensen told U.S. District Judge Douglas P. Woodlock that the case isn't moot despite the state's decision to include gun stores among a first wave of businesses that could reopen starting May 18. That move came after Judge Woodlock issued a preliminary ruling in early May finding that the initial shutdown violated the Second Amendment and ordering the state to reopen the stores.
Jensen said Friday he wants the court to bar the state from closing the stores again given the "non-theoretical possibility" of a second COVID-19 wave.
"The issue is if we go back down to the emergency services shutdown," Jensen replied. "The issue is if the Commonwealth goes back to lockdown for essential services only, can they again shut down firearm retailers and ranges?"
But attorneys for the government argued that Baker's inclusion of the gun stores in the first phase of the state's reopening plan renders the entire lawsuit moot, meaning the action should be dismissed. They said it's mere "speculation" that Baker would again take statewide action to close the stores.
Citing "steady declines" in new infections and deaths, lawyers for Baker wrote in a filing that there is "no basis to believe that the plaintiffs would be subject to the same allegedly objectionable government action in the future."
In late March, Baker initially deemed gun shops as "essential" businesses that could stay open during the public health response to the pandemic. But by early April, the governor had removed firearms dealers from that list.
In two lawsuits joined into the single case, Massachusetts citizens, gun shops and advocacy groups asked the court to force the state to let the shops resume sales. Lobbyist groups, including the National Rifle Association, also decried the closures as egregious violations of constitutional rights.
In early May, Judge Woodlock granted interim relief to the stores, ordering the state to let the shops reopen due to a lack of rationale from the governor's office about why the shops were being treated differently than retailers, like liquor stores, which lack constitutional underpinnings.
Baker administration lawyers had taken the position that the limited time frame for the closures was enough to justify the actions. They also said that residents could still purchase guns through person-to-person private sales, and could buy ammunition at Walmart stores.
Lawyers for the retailers have indicated they plan to seek attorney fees and costs from the state following the ruling.
The McCarthy plaintiffs are represented by David D. Jensen.
The Cedrone LLC plaintiffs are represented by Andrew J. Couture.
Baker and the other state officials named in the suit are represented by Julia Kobick of the Massachusetts Office of the Attorney General.
The cases are McCarthy et al. v. Baker et al., case number 1:20-cv-10701, and Cedrone LLC et al. v. Baker et al., case number 1:20-cv-40041, both in the U.S. District Court for the District of Massachusetts.
--Editing by Alyssa Miller.
For a reprint of this article, please contact reprints@law360.com.
