Connor v. District Attorney for the Norfolk District (Lawyers Weekly No. 12-109-17)



NORFOLK, ss.                                                                                  SUPERIOR COURT

                                                                                                            CIVIL ACTION

                                                                                                            No. 14-01322












The plaintiff, Myles J. Connor (“Connor”), brought this action for declaratory relief pursuant to G. L. c. 231A, seeking a declaration that he is the owner of certain property (“the Property”) which was seized by the District Attorney for the Norfolk District (“District Attorney”) during execution of a search warrant in 1985.  On June 12, 2017, this Court denied the District Attorney’s motion for summary judgment.  Now before the Court is the District Attorney’s motion for reconsideration.  For the reasons contained herein, the motion for reconsideration is DENIED.



The facts surrounding how the District Attorney came to possess the Property, and Connor’s efforts to reclaim the Property, have already been described in detail in this Court’s earlier Decision and Order on Defendant’s Motion for Summary Judgment.  Connor v. District Attorney for the Norfolk District, 2017 WL 2979108 (Mass. Super. 2017).  Those facts are incorporated by reference into this decision.

The District Attorney has submitted additional exhibits to supplement the summary judgment record.  The additional exhibits include deposition testimony of Kathryn M. Perry-Dougan, who pled guilty to a charge of drug possession following the 1985 search of her apartment where the Quincy police seized drugs as well as the Property.



A party seeking reconsideration of a prior ruling must show newly discovered evidence, a change of circumstances, a change of law, or a plain error of fact or law in the original ruling.  See Mass. R. Civ. P. 60(b); Audubon Hill South Condominium Assoc. v. Community Assoc. Underwriters of Am., Inc., 82 Mass. App. Ct. 461, 470 (2012).  The District Attorney has shown none of these, nor has explained why arguments made in its motion for reconsideration were not made earlier.

In its motion, the District Attorney re-hashes its argument that the doctrine of laches applies to Connor’s claim.  The District Attorney has failed to point out any reason that would require reconsideration on this point.  Fundamentally, the District Attorney’s argument remains flawed in that it is premised on the notion that the burden of initiating action in this case rested on the Plaintiff.  It did not – the law places that burden squarely on the shoulders of the District Attorney.  The District Attorney’s attempts to shift that burden are plainly misplaced.  Even were the Court to leave this point aside and reconsider the laches argument, it would still conclude that the District Attorney is not entitled to prevail on summary judgement on this record.  “Laches is an equitable defense consisting of unreasonable delay in instituting an action which results in some injury or prejudice to the defendant.”  Yetman v. Cambridge, 7 Mass. App. Ct. 700, 707 (1979).  The burden of proving laches rests with the District Attorney.  See G.E.B. v. S.R.W., 422 Mass. 158, 166 (1996).  At a minimum, whether the District Attorney is correct that it was prejudiced by the death of Timothy Steinmetz, a witness with knowledge as to Plaintiff’s alleged ownership of the Property, is a subject of factual dispute.  The record shows that in 2007, the Plaintiff provided the District Attorney with an affidavit from this witness with his contact information.  This affidavit contained the witness’s testimony concerning Plaintiff’s possession of the Property.  The District Attorney made no effort to verify the contents of this affidavit with the witness while he was alive, nor did receipt of the affidavit spur the District Attorney then to file an action to settle title to the Property.  There is thus a question about the equities in applying the laches defense here, especially where the District Attorney was involved in negotiations with the Plaintiff regarding the ownership of the Property for years without ever raising concerns about prejudice.  Accordingly, the District Attorney has not satisfied his burden of proving prejudice warranting summary judgment on its laches defense.  See Woodward Sch. For Girls, Inc. v. Quincy, 469 Mass. 151, 179 (2014) (“To establish a laches defense, the asserting party must establish both actual knowledge and prejudice.”) (citations omitted).

The District Attorney also argues that G. L. c. 276, § 3 is inapplicable to the Plaintiff’s case because the statute applies to criminal defendants seeking the return of their property which was seized in connection with criminal charges brought against them.  Again, the District Attorney has failed to point out any error of law that would require reconsideration on this point.  Chapter 276, § 3 requires that property seized in execution of a search warrant, once it is no longer needed for evidence, “shall be restored to the owners thereof” or “disposed of as the court or justice orders and may be forfeited and either sold or destroyed.” (emphasis added).  See Commonwealth v. Sacco, 401 Mass. 204, 207 n.3 (1987) (“Property seized pursuant to a search warrant must be restore to its owners when it is no longer needed.  G. L. c. 276, § 3. . . Plainly the Legislature intended that some judicial proceeding must be available to facilitate the disposition of seized property.”).  There is no requirement in the statute that the seized property is only to be returned if the owner is also the criminal defendant.  Indeed, such a reading, which would prioritize the rights of criminal defendants over innocent property owners, is nonsensical. Moreover, the statute simply does not permit the District Attorney to seize property and then take no action such that title somehow comes to rest with the government.  Because Connor seeks return of his property which was seized pursuant to a search warrant, he is entitled to pursue a claim for return of the Property under G. L. c. 276, § 3.[1]

The District Attorney further argues that G. L. c. 276, § 3 does not apply here because there is a dispute of ownership as to the Property at issue.  But there is no such dispute; no third party has claimed to be the owner of the Property, there is only the District Attorney’s objections to Plaintiff’s claims, which were never resolved through the District Attorney’s bringing some form of action.  Thus, contrary to the District Attorney’s position, the circumstances here are not comparable to where a third party has a potential claim to the property.  See Commonwealth v. Johnson, 2016 WL 3634148 at *1 (Mass. App. Ct. 2016) (unpublished Rule 1:28 decision).  Furthermore, had the District Attorney instituted forfeiture proceedings under G. L. c. 94C, § 47(d), as permitted by G. L. c. 276, § 3, Connor would have had the opportunity to prove his claim to the Property.  The District Attorney, however, failed to take any action, as it should have done.


For the foregoing reasons, defendant’s motion for reconsideration is DENIED.



Michael D. Ricciuti

Justice of the Superior Court

Dated:  August 7, 2017

[1] The District Attorney also argues that the plaintiff is barred from recovery of any weapons seized during the search under G. L. c. 276, § 3(b) and G. L. c. 140, §§ 129B, 129D.  This argument is being raised for the first time and therefore is not appropriate for a motion for reconsideration. See Commissioner of Revenue v. Comcast Corp., 453 Mass. 293, 312 (2009).  In any event, there are disputes of fact which can be resolved at trial regarding whether certain items can be returned to the plaintiff or someone else designated by the plaintiff.

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