From the General Counsel’s Corner
mcopa news March 2008 (pg8)
Firearms Proficiency Tests OK
In a January 14, 2008 decision from the Waltham
District Court, the requirement imposed by Chief Ed Deveau
of Watertown that an applicant for a License to Carry demonstrate
the ability to handle a firearm. The applicant argued
that he was exempt from such requirement since MGL
c. 140, s. 131P exempts “persons lawfully possessing a firearm
identification card or license to carry firearms on June
1, 1998” from its requirement of proof of firearms safety
training.
Essentially, the court ruled that if a chief wants to
impose a proficiency test that is fine, regardless of how
long an applicant has held an FID or LTC.
Similarly, in a Superior Court decision dated January
18, 2008, the judge ruled that Chief Dan O’Leary had
the authority to require all applicants for an LTC to pass a
proficiency test, even those who held an LTC or FID on
June 1, 1998. Section 131P of Chapter 140 exempts such
persons form the requirement to supply a “basic firearms
safety” certificate. However, the court explained that while
Chief O’Leary could not require a “BFS” certificate, he
could insist that applicants demonstrate proficiency in the
firing of a handgun. The court cited the famous case of
MacNutt v. Police Comm’r of Boston that upheld a chief’s
ability to demand a “range test” as a condition of issuing an
LTC.
Chiefs should review their licensing requirements
to be sure that they comply with these court decisions. If an
applicant held a Basic Firearms Safety certificate as of June
1, 1998, such person is exempt from the minimal statutory
requirement that he or she produce such certificate in order
to receive an LTC or FID in the future. Chiefs may not
impose any additional requirements on the issuance of an
FID. However, regardless of whether an applicant is exempt
from the BFS requirement, a chief may insist on a
proficiency test as a condition of obtaining an LTC.
While the courts at the moment appear to say proficiency
tests are separate from the safety course requirement
and therefore still allowed even with a safety certificate,
there are clearly those who believe otherwise. We
can expect to see more challenges to the practice of requiring
proficiency testing either in the courts, or by requests
for a change in the law by the legislature. It is possible that
some chiefs requiring these tests think there is some liability
on them if they issue a LTC to someone who is not proficient.
This is not the case. The Mass. Tort Claims Act
specifically excludes liability on a public employee for licensing
determinations. Chiefs are no less liable if they
require proficiency tests. In fact, while there are certainly
rational justifications for verifying that a person is able to
handle a handgun before issuing them a license, chiefs could
simply comply with the statutory licensing requirements
without affecting their personal liability or that of their community.
http://www.masschiefs.org/documents/March 2008 Newsletter.pdf
mcopa news March 2008 (pg8)
Firearms Proficiency Tests OK
In a January 14, 2008 decision from the Waltham
District Court, the requirement imposed by Chief Ed Deveau
of Watertown that an applicant for a License to Carry demonstrate
the ability to handle a firearm. The applicant argued
that he was exempt from such requirement since MGL
c. 140, s. 131P exempts “persons lawfully possessing a firearm
identification card or license to carry firearms on June
1, 1998” from its requirement of proof of firearms safety
training.
Essentially, the court ruled that if a chief wants to
impose a proficiency test that is fine, regardless of how
long an applicant has held an FID or LTC.
Similarly, in a Superior Court decision dated January
18, 2008, the judge ruled that Chief Dan O’Leary had
the authority to require all applicants for an LTC to pass a
proficiency test, even those who held an LTC or FID on
June 1, 1998. Section 131P of Chapter 140 exempts such
persons form the requirement to supply a “basic firearms
safety” certificate. However, the court explained that while
Chief O’Leary could not require a “BFS” certificate, he
could insist that applicants demonstrate proficiency in the
firing of a handgun. The court cited the famous case of
MacNutt v. Police Comm’r of Boston that upheld a chief’s
ability to demand a “range test” as a condition of issuing an
LTC.
Chiefs should review their licensing requirements
to be sure that they comply with these court decisions. If an
applicant held a Basic Firearms Safety certificate as of June
1, 1998, such person is exempt from the minimal statutory
requirement that he or she produce such certificate in order
to receive an LTC or FID in the future. Chiefs may not
impose any additional requirements on the issuance of an
FID. However, regardless of whether an applicant is exempt
from the BFS requirement, a chief may insist on a
proficiency test as a condition of obtaining an LTC.
While the courts at the moment appear to say proficiency
tests are separate from the safety course requirement
and therefore still allowed even with a safety certificate,
there are clearly those who believe otherwise. We
can expect to see more challenges to the practice of requiring
proficiency testing either in the courts, or by requests
for a change in the law by the legislature. It is possible that
some chiefs requiring these tests think there is some liability
on them if they issue a LTC to someone who is not proficient.
This is not the case. The Mass. Tort Claims Act
specifically excludes liability on a public employee for licensing
determinations. Chiefs are no less liable if they
require proficiency tests. In fact, while there are certainly
rational justifications for verifying that a person is able to
handle a handgun before issuing them a license, chiefs could
simply comply with the statutory licensing requirements
without affecting their personal liability or that of their community.
http://www.masschiefs.org/documents/March 2008 Newsletter.pdf
