Part 2
SUPERIOR COURT REVIEW
A party aggrieved by the action of a District Court either affirming or
reversing the action taken by a police chief in a firearms licensing case does not
have a right to appeal to the superior court for a trial de novo under chapter 231,
§97. Rather, the review is limited to a civil action in the nature of certiorari under
c.249, §4. This was the conclusion reached in the 1993 Appeals Court case of
Godfrey v. Chief of Police of Wellesley.14 In such cases, the reviewing Superior
Court judge is limited to what is contained in the district court record. The
standard of review in certiorari cases is “to correct substantial errors of law
apparent on the record adversely affecting material rights.”15 In a proceeding
before the Superior Court, the scope of review is broad enough to include an
examination of whether there was a reasonable basis for the decision made by
the licensing authority to deny, suspend or revoke a license or by the judge of the
District Court to order the issuance or restoration of a license.16
The following are examples of court action involving a chief’s denial of an
LTC.
· Roy v. Dufort, 1999 Mass. Superior Ct., (No. 990667A) (Hillman,
J.) W.L. 1335160
A police officer asked the Superior Court to reverse the District Court’s
ruling that upheld the police chief’s denial of an application to review an LTC
under c.140, §131.
The court ruled that the new chief was not bound by any judgments about
a person’s suitability made by former chiefs.
The basis for the (new) chief’s refusal to renew the officer’s LTC was the
chief’s discovery that Roy’s criminal records indicated that he twice appeared
before a juvenile court on delinquency complaints, one for a false alarm and
another for larceny. In addition, while in the U.S. Army, he admitted to
possession and use of cocaine.
Roy signed the application for renewal under the penalties of perjury and
acknowledged that any false answers would be just cause for denial or
revocation of the license. He provided negative answers to questions about prior
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convictions, prior arrests, prior appearances in any court as a defendant, and
prior use of drugs and narcotics.
The Superior Court ruled that the District Court made no errors of law
when it held that based on the information known at the time of revocation, Chief
Dufort had reasonable grounds to revoke Roy’s LTC.
· DeLuca v. Chief of Police of Newton, 415 Mass. 155, 612 N.E.
2d 628 (1993)
The Supreme Judicial Court ruled that a police chief is entitled to consider
acts underlying pardoned offenses in determining whether an applicant is a
“suitable person” to receive an LTC.
· Stavis v. Carney, 2000 Mass. Superior Ct., (No. 99-349-A)
(Agnes, J.) W.L. 1170090
The Superior Court stayed this appeal for 30 days to allow the aggrieved
person to arrange for the complete District Court record (and transcript) to be
delivered to the Superior Court for review. The Court took the opportunity to
discuss the limited nature of Superior Court reviews. The complaint is treated as
one in the nature of certiorari under c.249, §4 and is limited to correcting errors of
law.
The District Court upheld former Chief Palmer’s revocation of an LTC.
The person was “involved”, but not charged, in connection with an incident at a
lounge where an individual was beaten, guns were shown, and a gun was
allegedly pointed at the victim’s head by one of the LTC holder’s companions.
The chief concluded that this rendered the license holder an unsuitable person to
carry firearms.
· Commonwealth v. Davis, 369 Mass. 886, 343 N.E. 2d 847
(1976).
An individual has no federal or state constitutional or statutory right to
possess or carry a firearm.
· Chief of Police of Shelburne v. Moyer, 16 Mass. App. Ct. 543,
453 N.E. 2d 461 (1983)
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Sealed records may be considered by a chief in determining fitness to
carry firearms. In the absence of a finding that no reasonable ground existed for
the chief of police to refuse a license on the basis that a person was not a
“suitable person”, the court erred in ordering the issuance of a license to a
defendant. To warrant such a finding, it must be shown that the chief’s refusal
was arbitrary, capricious or an abuse of discretion. The burden is on the
applicant to produce substantial evidence that (s)he is a proper person to hold a
license to carry firearms.
· McNutt v. Police Commissioner of Boston, 30 Mass. App. Ct.
632, 572 N.E. 2d 577 (1991)
The Commission had authority under §131 to require applicants to pass “a
test focusing on the safe handling and proficient firing of a firearm.”
· Godfrey v. Chief of Police of Wellesley, 35 Mass. App. Ct. 42,
616 N.E. 2d 485 (1993)
There was sufficient cause to revoke an LTC where the licensee refused
to cooperate with a police investigation of recent random shootings near the
licensee’s house.
· O’Malley v. Chief of Police of Stoughton, 35 Mass. App. Ct. 49,
617 N.E. 646 (1993)
District Court judge erred in overturning a decision by the local police chief
who had refused to issue a license for machine guns to a person who wished to
possess them for “personal enjoyment and possible future profit.”
· Dennison v. Whearty, 1998 Mass. Superior Ct. (No. 96-542)
(Connor, J.)
Local chief wrongly denied an applicant a firearms license solely on
account of his membership in the Hell’s Angels organization.
· Police Commissioner of Boston v. Robinson, 47 Mass. App. Ct.
767, 716 N.E. 2d 652 (1999)
Notice of license revocation sent to LTC holder by certified mail, but
returned unclaimed, did not satisfy the statutory notice requirement.
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· Rzeznik v. Chief of Police of Southampton, 374 Mass. 475, 373
N.E. 2d 1128 (1978)
An applicant for a firearms license who has been convicted of a felony is
barred from obtaining an LTC.
SUMMARY
A District Court review of the denial, suspension or revocation of an FID or
LTC is not a full trial. Where an FID Card is involved, the only issue is whether
the aggrieved party is disqualified under one of the listed statutory categories. In
LTC cases, the chief’s decision is entitled to great deference.
Reviews by the Superior Court are based on the record compiled at the
District Court. No trial is involved. The scope of review is very limited.
* * * * *
John M. Collins
Collins & Weinberg
47 Memorial Drive
Shrewsbury, MA 01545
(508) 842-1556
(508) 842-3703 – Fax
[email protected]
Page 9 of 9
1 Godfrey v. Chief of Police or Wellesley, 35 Mass. App. Ct. 42, 616 N.E. 2d 485 (1993).
2 Id.
3 Id. at 44, quoting Commissioners of Civil Service v. Municipal Court of the City of
Boston, 369 Mass. 84, 87, 337 N.E. 2d 682 (1975).
4 Godfrey, 35 Mass. App. Ct. at 45.
5 Chief of Police of Shelburne v. Moyer, 16 Mass. App. Ct. 543, 547, 453 N.E. 2d 461
(1983).
6 Id.
7 Chief of Police of Shelburne v. Moyer, supra, 16 Mass. App. Ct. at 546.
8 Id. at 547.
9 Compare Sullivan v. Municipal Court, 322 Mass. 566, 572-73, 78 N.E. 2d 618 (1948).
10 See Quintal v. Commissioner of Department of Employment and Training, 418 Mass.
855, 858, 641 N.E. 2d 1338 (1994).
11 See Stavis v. Carney, Mass. Superior Ct., July 31, 2000, W.L. 1170090.
12 See Newbury Junior College v. Town of Brookline, 19 Mass. App. Ct. 197, 202 n.7,
472 N.E. 1373 (1985) for a discussion of the distinction between judicial review of a
licensing decision under the “arbitrary and capricious” test as opposed to the “substantial
evidence” test.
13 See DeLuca v. Chief of Police of Newton, 415 Mass. 155, 612 N.E. 2d 628 (1993);
Dennison v. Whearty, 1998 Mass. Superior Ct. (No. 96-542) (Connor, J.).
14 Godfrey v. Chief of Police of Wellesley, 35 Mass. App. Ct. 42, 616 N.E. 2d 485 (1993).
15 Police Commissioner of Boston, v. Robinson, 47 Mass. App. Ct. 767, 770, 716 N.E. 2d
652 (1999); see also Mayor of Medford v. Judge of First District Court of Middlesex, 249
Mass. 465, 716 N.E. 652 (1924).
16 Stavis v. Carney, supra.
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