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Massachusetts Court ruling gives police chief broad discretion to deny gun license

The state’s highest court decided this week to uphold Shrewsbury police Chief Gemme’s decision to revoke a Raymond Holden’s license based on an assault and battery charge that was ultimately dismissed. The case is important for those looking to apply for an LTC or those who fear suspension or revocation, because it showed just how broad a licensing authority’s discretion is.

The licensing authority in Massachusetts may deny an application or suspend or revoke for any of the following reasons under G. L. c. 140, § 131 (d) and (f). :

1. A felony conviction as a juvenile or adult- ineligibility waived after 5 years 2. Being the subject of a current 209A restraining order 3. Conviction for possession or sale of drugs 4. Confinement to a hospital for mental illness-may be waived with statement from treating physician 5. Conviction of a misdemeanor punishable by imprisonment for more than two years-waived after 5 years 6. Conviction of a violent crime-never waived 7. Conviction of any weapons charge for which imprisonment may be imposed-waived after 5 years 8. Past or current treatment for drug or alcohol addiction-waived after 5 years with affidavit from physician 9. Being the subject of an outstanding state or federal arrest warrant 10. Not a “suitable person” in the eyes of the licensing authority

Mr. Holden’s license was suspended, revoked and eventually his reapplication denied based on the “suitable person” standard.

The case itself arose out of an incident that occurred in 2005. Raymond Holden’s license to carry was suspended following his arraignment in Westborough district court for assault and battery of his wife in September 2005. Chief Gemme suspended his license 2 days after the arraignment, relying on the fact that he was charged with assault and battery. The charges were subsequently dismissed at his wife’s request 2 weeks later.

Three months after the dismissal Mr. Holden, filed a complaint for judicial review of his suspension in the Worcester District Court. A hearing was held and the judge ordered the restoration of Mr. Holden’s license stating that the suspension was “arbitrary and capricious” because it was based on a charge that was ultimately dismissed.

On January 30, 2006, the chief reinstated Mr. Holden’s license and revoked it on the same day. The Chief released a written decision justifying the revocation. He stated that the original suspension was based on the mere existence of a criminal complaint. He distinguished this from his decision to revoke by stating that the revocation was based on the underlying facts that he found to be credible in the police report.

The case continued to be appealed by both side until it was brought before the state’s highest court in 2014. The SJC decided this week to uphold the Chief’s decision to withhold licensing based on the suitable person standard and granted a licensing authority broad discretion in deciding what a suitable person is, allowing licensing authorities to consider the facts of an underlying charge even when the charge is ultimately dismissed.

While acknowledging that the “suitable person” standard gives licensing authorities “broad discretion” in making licensing decisions, the court noted that it allows authorities to keep guns out of the hands of those who might pose a risk to public health and safety.

The court said Mr. Holden’s license was revoked and his application for license renewal denied “not on a generalized, subjective determination of unsuitability, but on specific and reliable information that he had assaulted and beaten his wife.

The court reasoned that “the fact that there was no conviction removes the incident as a license disqualifier, but it does not remove the chief’s consideration of the incident on the question of Holden’s suitability”.

Responding to Mr. Holden’s argument that the chief must show he is “currently unsuitable,” the court said a period of five years following an alleged incident of domestic abuse “without professional intervention” was “hardly stale evidence.” The court declined to offer an example or standard for how old an incident would have to be to make it too stale.

A person denied a license to carry, or one whose license is suspended or revoked based on the suitable person standard may appeal the decision in district court. However the ruling in Holden’s case illustrates just how difficult it may be to be successful on appeal. For now, the courts have determined that the purpose of G. L. c. 140, § 131, is to “limit access to deadly weapons by irresponsible persons.” Ruggerio v. Police Comm’r of Boston, 18 Mass. App. Ct. 256, 258 (1984) and that they would rather deny a license than mete out punishment after an unfortunate event.

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