Concord Police Sued for Taking Gun of Homeowner

Bill Before Legislature Would Address Problem

By Curt Lovelace
June 2001

When Alec Costerus moved back to Massachusetts in March 1999, he heard there was a new law regarding handgun licenses.

So he innocently went to the Concord Police Department to inquire what he needed to do. He still held a Firearms Identification (FID) card which had no expiration date. But instead of being given the information on what to do, Costerus was immediately arrested by Sgt. Barry Neal and put in jail.

The charge was "illegal possession of a firearm" although Costerus didn't have any guns in his possession. Later, Concord officers searched his home and seized two handguns and a competition rifle.

Despite spending a night in jail and having his family frightened by an illegal search of his home, Costerus wanted to forgive and forget. He hoped to clear up the "gigantic misunderstanding." In November, the charges against him were dismissed without a trial.

Filed for a License

Costerus then filed for a license to carry handguns. The response was unexpected. On December 31, 1999, an officer drove up the driveway and hand delivered the chief's letter of denial.

Two reasons were given by Chief Leonard Wetherbee of the Concord Police Department. They were:

"1. Your failure to comply with a Concord Police Department Administrative Policy requiring the completion of a state approved Firearms Safety Course when upgrading from a Firearms Identification Card to a License to Carry.

"2. Your recent involvement in domestic and firearms related issues in the Town of Concord."

Costerus says he's exempt from the necessity to complete a firearms safety course. This exemption comes straight out of the law itself, the Massachusetts Gun Control Act of 1998, which exempts current FID cardholders, he says. His FID card was still valid, he explains, when he applied for his License to Carry. In addition, he is qualified to teach the Firearms Safety Course. He is a former Massachusetts State Champion shooter, a high school and college competitive shooter and has both ROTC and police training.

The only illegal activity regarding Costerus and firearms, he maintains, was on the part of the Town of Concord. The police illegally searched his home and confiscated his weapons without probable cause, he claims. All charges against Costerus were eventually dropped.

On January 3, 2000 Costerus petitioned the Concord District Court to review the denial. In March a judge declared, "While the chief's discretion is certainly broad, it is not unlimited." The judge's ruling contained an order to issue Costerus a license. But Chief Wetherbee countered with a Motion for a Stay of Enforcement. Costerus received no license.

A Federal Case

In August 2000, Costerus filed a civil rights suit in U.S. District Court in Boston against the Town of Concord and the State of Massachusetts. In the 40-count suit, Costerus, who is not an attorney and is representing himself, charged several police officers and the police chief, as well as then-Gov. Paul Cellucci and several state officials, with numerous violations of the Second, Fifth and Fourteenth amendments to the U.S. Constitution. The suit also cites violations of the Declaration of Rights and the Privacy Act of 1974 and it charges conspiracy, fraud, larceny through illegal conversion, negligence, false arrest, false imprisonment and malicious prosecution.

"In a nutshell, this is what I'm looking for," Costerus explained to MassNews. "From the Concord defendants, I want recovery of actual, compensatory and punitive damages. I'm seeking an injunction as well. I want my property back. It was illegally obtaine. It was stolen from my house without due process.

"From the state defendants I am seeking Declaratory Relief, which basically says to the state, 'You were wrong.' I'm also seeking Prospective Relief, in that I'm seeking that all of Chapter 180 be declared unconstitutional in all of the aspects I specifically address."

Costerus believes he is fighting for more than money. He is fighting for the U.S. Constitution. He said, "I deeply regret the time that fighting to preserve our Constitutional rights has diverted from my family and other pursuits. But any right not worth fighting for is not worth having. If I do nothing, then I would not be worthy of exercising those rights, and what kind of example of civic responsibility is that? As long as the egregious acts of the Concord police remain unchallenged, we, all of us, as a lawful society, suffer and share in my doom. And as long as the Commonwealth enacts laws, such as Chapter 180 of the Acts of 1998, that strip away rights that are guaranteed by the U.S. Constitution, then we as a body of citizens must defend our rights."

He believes that licensing gun owners at the discretion of local police chiefs is discriminatory. It can be used as a racist, anti-Semitic or anti-female tool in the hands of an unscrupulous police chief.

A federal judge, Morris E. Lasker, granted a motion by the state last month to dismiss part of the case. According to Costerus, "The judge said I would be entitled to Prospective Injunctive relief, but only when there's a valid, Constitutional claim. He said there is no individual right under the Second Amendment for an individual to keep and bear arms. So the counts of the original complaint were dismissed to the extent that they make Second Amendment claims." Costerus has filed a Notice of Appeal to the United States Court of Appeals for the First Circuit."

First Circuit Will Decide

He considers this dismissal a victory of sorts. He says there is a case in the Fifth Circuit, United States v. Emerson, where Dr. Emerson was charged with possessing a firearm in violation of a federal law while he was under a restraining order. The federal district court judge ruled that the federal statute deprived Emerson of his Second Amendment rights as much as a convicted felon.

The judge, Costerus says, did a very lengthy study of the Second Amendment and how it applies. He ruled that there is under the Second Amendment a guarantee for an individual's right to keep and bear arms and that that federal statute violated that right. "That completely flies in the face of what this judge in Massachusetts just wrote, who by the way spent no time investigating the matter," he argues.

The way Alec Costerus sees it, "Even if I lose in the First Circuit, and Emerson wins in the Fifth, we will have a federal jurisdictional conflict. So at this point it doesn't matter whether I win or lose, if Emerson wins. If we both lose, it would be a different story."

For now, Costerus remains unlicensed and without his firearms, which are being held by the Concord Police Department. He is awaiting a ruling by the First Circuit Court of Appeals. While he has not engaged an attorney for this process, he has amassed large legal bills. Donations can be made to the Alec S. Costerus Legal Fund, P.O. Box 705, Concord, MA 01742-0705.

Both Barry (now Lieutenant) Neal and Chief Leonard Wetherbee of the Concord Police Department were contacted for comment on this case. Barry referred us to Wetherbee, who has not responded.

Bill Before Legislature Would Address Problems

A bill currently before the state legislature would address some of the problems encountered by Alec Costerus. Senate bill 1178 would eliminate the discretionary role of local police chiefs in the issuance of licenses to carry firearms. At a hearing before the Public Safety Committee in March, Rep. George Peterson (R-Grafton), one of the sponsors of the bill, said that this legislation would make Massachusetts a "shall issue" state for firearms licenses. He told the panel that the current system, which leaves all license decisions up to local police chiefs, creates, in essence, 351 different sets of standards. This bill takes away police chief discretion. No determination has been made by the committee as yet.

Senate 1178, in its entirety, reads thusly:

AN ACT RELATIVE TO FIREARM LICENSING.

Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority of the same, as follows:

SECTION 1. Paragraph (d) of Section 131 of Chapter 140 of the General Laws is hereby amended by striking, in line 4, the words: "may issue if it appears that the applicant is a suitable person to be issued such license, and that" and inserting in place thereof the following words: "shall issue, if."