By Brian Dowling

Law360 (December 17, 2020, 7:09 PM EST) -- A Massachusetts federal judge on Thursday skewered what he called the state's "rope-a-dope" strategy to avoid legal review of its decision to close gun shops at the outset of the pandemic, indicating the case isn't moot simply because the governor has since rescinded the restriction following a court order.

U.S. District Judge Douglas P. Woodlock told attorneys for the state and lawyers for gun shops, shooting ranges, hopeful gun owners and related associations that he is particularly concerned Gov. Charlie Baker could again order firearms retailers closed, given the state's unwillingness to deem the businesses "essential."

The judge — who in May ordered the state to let the stores reopen on Second Amendment grounds — said the state appeared intent on avoiding any final judgment on its powers.

"That case gets far enough along, and it looks like they have to fight it or don't, and it's dropped," Judge Woodlock said, recapping the litigation to date. "The law is changed. That is what I mean about the manipulation of mootness."

The judge compared the state's moves to a challenge to New York City's firearms restrictions. In that case, the U.S. Supreme Court agreed that the case was moot after the city relaxed its rules.

"I simply don't know how I can treat this case as moot," Judge Woodlock said. "It seems to me that evolving case law in this area and intonations from actions from the Supreme Court, most recently Tuesday, suggest that it would be improvident of me to treat this as moot."

The judge, who has criticized the Baker administration's previous explanations for the closures, expressed concern over a "highly provocative" press statement by a spokesperson for the governor who said "everything is on the table" for the state's response to spikes in coronavirus cases.

"Now that phrase has a particular resonance in gun cases," Judge Woodlock said, citing the Supreme Court's decision in District of Columbia v. Heller, in which Justice Antonin Scalia rendered the opinion that "enshrinement of constitutional rights necessarily takes certain policy choices off the table."

Woodlock ordered the administration to file an affidavit explaining what the spokesperson meant by that statement as it relates to the court's earlier injunction.

All that, the judge said, backs up his view that the state could again close gun shops, rendering the case before the court not moot.

Assistant Attorney General Julia Kobick argued that other pandemic-response cases before the U.S. District Court for the District of Massachusetts had been seen as moot after the governor's emergency orders were rescinded, much like the gun store restrictions were.

Judge Woodlock responded that those cases — involving gyms and gaming arcades — were centered on constitutional due process rights, not an enumerated right like gun ownership in the Second Amendment.

In two lawsuits filed in April joined into the single case, Massachusetts residents, gun shops and advocacy groups asked the court to force the state to let the shops resume sales after Baker's emergency pandemic orders rendered them closed as non-essential. Lobbyist groups, including the National Rifle Association, also decried the closures as egregious violations of constitutional rights.

The state defended the closures as necessary to stem the spread of the virus and said they adequately fit the need at the time.

Judge Woodlock granted interim relief to the stores in early May, 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 other retailers, such as liquor stores, which lack constitutional underpinnings. The state then rescinded the closure orders as case numbers fell and the state shifted its strategy toward a phased reopening.

In May, attorneys for the gun groups said the case should proceed on the basis that a second wave of the virus could send the state back into lockdown mode.

The plaintiffs are represented by David D. Jensen and 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 Janice Carter Brown.

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