New Appeals Court Decision

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HENRY, J. Until paragraph (1 1/2) was added to G. L. c. 140, § 129B, effective January 1, 2015, a licensing authority could only approve an application for a firearm identification (FID) card or deny it on the basis that an applicant was a "prohibited person" under the statute.[2] Paragraph (1 1/2), which is at issue in this case, addresses the possibility that a licensing authority might conclude that someone who is not a prohibited person is "unsuitable" to possess an FID card. In that event, paragraph (1 1/2) does not empower the licensing authority to deny the FID card. Rather, it provides that "the licensing authority may file a petition" "in the [D]istrict [C]ourt of jurisdiction" "to request that an applicant be denied the issuance or renewal of [an FID] card." The statute reserves to the District Court the decision whether the licensing authority has met its burden of proving by a preponderance of the evidence that the applicant is unsuitable. G. L. c. 140, § 129B (1 1/2).


On the issue of timing, paragraph (1 1/2) does not expressly set a deadline for the licensing authority to petition the District Court for a determination of unsuitability. Section 129B (3), in contrast, sets a forty-day deadline for the licensing authority to approve an application for an FID card or deny it on the grounds that an applicant is a prohibited person. Here, over one hundred days after Robert J. Power filed his FID card application, the licensing authority petitioned the District Court for a determination that he is an unsuitable person. Power argues that paragraph (3)'s forty-day deadline can be imposed on paragraph (1 1/2). Even if he were correct, an issue we need not and do not decide, we reject Power's contention that if the licensing authority does not petition the District Court pursuant to paragraph (1 1/2) within forty days of the application, the consequence is that the FID card constructively issues.
 
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No real surprises here. Appeals court has decided 40 days doesn't really mean 40 days. The actual meaning of 40 days will be decided whenever we decide to make a decision.
Appeals court is returning case to District Court who should have decided suitability when the petition was first filed. Good luck to the plaintiff who apparently has a long record of misdemeanors. Not enough to trigger PP but he's going to need a very friendly judge.
 
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