New License to Carry Application Advisory

[Rob Boudrie]

A counter point would be that with centralized licensing, any abuse or extension beyond the law would be global and thus affect a large number of people, this large impact would certainly result in affected people challenging the abuses in court.

Suppose said abuse took the form of "target restriction unless the applicant is a persons of privilege, power and influence". Really think the MA courts or first circuit would overturn that?

 

[42!]

Suppose said abuse took the form of "target restriction unless the applicant is a persons of privilege, power and influence". Really think the MA courts or first circuit would overturn that?

While that may be a 2a "abuse", under MA law that is allowed. I don't agree but that is not an abuse under MA law.
But it would still have the same affect, a LARGE number of people would be affected and the target of the suit would be a single entity, not a couple people challenging a town here and there. And those numbers have a better chance of getting the law changed. And remember, what you are concerned about already exists.
A single target and a much larger group of plaintiffs means a better challenge. It's a more strategic approach.

I'm willing to listen to a better strategy, but doing nothing isn't working, and ocationally challenging a town on some small individual point is never going to result in a major improvement. And in the meantime they keep tightening thge screws. Do you really think that 50round/5hour training BS won't go through? I'm sure they will grandfather current holders, so most here will be fine, and thus no big numbers to challenge the law.

 

[JAD]

While that may be a 2a "abuse", under MA law that is allowed. I don't agree but that is not an abuse under MA law.
But it would still have the same affect, a LARGE number of people would be affected and the target of the suit would be a single entity, not a couple people challenging a town here and there. And those numbers have a better chance of getting the law changed. And remember, what you are concerned about already exists.
A single target and a much larger group of plaintiffs means a better challenge. It's a more strategic approach.

I'm willing to listen to a better strategy, but doing nothing isn't working, and ocationally challenging a town on some small individual point is never going to result in a major improvement. And in the meantime they keep tightening thge screws. Do you really think that 50round/5hour training BS won't go through? I'm sure they will grandfather current holders, so most here will be fine, and thus no big numbers to challenge the law.

Even if you were to have a single target, the "abuse" that would eventually occur would be statutorily and politically defendable in a state that has an overwhelming majority that could either care less or would likely object to the concept civilian defensive carry. The current town system provides a vary viable way for many Massachusetts residents to have access to licenses without restriction.

 

[Rob Boudrie]

Even if you were to have a single target, the "abuse" that would eventually occur would be statutorily and politically defendable in a state that has an overwhelming majority that could either care less or would likely object to the concept civilian defensive carry. The current town system provides a vary viable way for many Massachusetts residents to have access to licenses without restriction.

We are at about 92% unrestricted and have to be careful not to let the perfect be the enemy of the good. (good in relative terms, only)

One thing we almost got was real judicial review, but someone pulled the magic two words "de novo" out of the last gun control bill before it became law. If that had survived, judges would have to examine facts and justify their decision rather than conclude "The court agrees the issuing authority thought he had a valid reason" that passes for review now.

And then there is the moving standard. It was changed from "suitable" to suitable based on danger to self or others. The courts ignore that and still use the old "any reason" standard.

Standard of evidence in license review is another target - the law should specifically hold licensing review to the same standard as other hearings, and undo precedent that establishes that things like not-guilty findings, hearesay evidence, etc. can be used. This is most interesting considering there seems to be a movement allowing multiple complaints against an LEO to be used against him/her, even if each individual one was unfounded. Well, I say "welcome to the club".

 

[JAD]

We are at about 92% unrestricted and have to be careful not to let the perfect be the enemy of the good. (good in relative terms, only)

One thing we almost got was real judicial review, but someone pulled the magic two words "de novo" out of the last gun control bill before it became law. If that had to survive, judges would have to examine facts and justify their decision rather than conclude "The court agrees the issuing authority thought he had a valid reason" that passes for review now.

And then there is the moving standard. It was changed from "suitable" to suitable based on danger to self or others. The courts ignore that and still use the old "any reason" standard.

Standard of evidence in license review is another target - the law should specifically hold licensing review to the same standard as other hearings, and undo precedent that establishes that things like not-guilty findings, hearesay evidence, etc. can be used. This is most interesting considering there seems to be a movement allowing multiple complaints against an LEO to be used against him/her, even if each individual one was unfounded. We,, I say "welcome to the club".

Setting appeals to a de novo standard would be a great step to lobby for.

The de novo standard is the one applicable to administrative appeals pertaining to denial or revocation here in Connecticut. It is a very useful for appellants because there is a potential a denial or revocation was appropriate based on circumstances present at that time BUT may no longer be relevant (e.g. because of circumstance change on the part of the applicant/appellant, disposition of other legal matters at play, new/differently understood factual history, etc....)

 

[Rob Boudrie]

Setting appeals to a de novo standard would be a great step to lobby for.

The de novo standard is the one applicable to administrative appeals pertaining to denial or revocation here in Connecticut. It is a very useful for appellants because there is a potential a denial or revocation was appropriate based on circumstances present at that time BUT may no longer be relevant (e.g. because of circumstance change on the part of the applicant/appellant, disposition of other legal matters at play, new/differently understood factual history, etc....)

De Novo also does not allow the judge to hang the decision on "I didn't do it, no one saw me do it, you can't prove a thing" when it comes to ruling contrary to the law.

For example, a judge could (and did) rule that a chief felt he had a valid reason to revoke an LTC because the licensee exercises his 5A rights when questioned, as (s)he is only ruling the chief felt he had a valid decision that was not arbitrary or capricious. "I would revoke the LTC of anyone who would not subject himself to questioning as a suspect in a crime" proves non-arbitrary. On the other hand, de novo would allow the revocation to stand only if the judge was willing to go on the record of "You can exercise the 2A or 5A but you cannot have them both".

Someone on the other side thought enough of this issue that those two words were pulled at the very last minute - and GOAL remained silent on it other than to update their summary. I do not know of that was an oversight, acceptance of defeat, or strategic move not to piss off someone who was otherwise friendly to our side. I just know that the lobbyist on our side did not make a public issue of it.

 

[JAD]

De Novo also does not allow the judge to hang the decision on "I didn't do it, no one saw me do it, you can't prove a thing" when it comes to ruling contrary to the law.

For example, a judge could (and did) rule that a chief felt he had a valid reason to revoke an LTC because the licensee exercises his 5A rights when questioned, as (s)he is only ruling the chief felt he had a valid decision that was not arbitrary or capricious. "I would revoke the LTC of anyone who would not subject himself to questioning as a suspect in a crime" proves non-arbitrary. On the other hand, de novo would allow the revocation to stand only if the judge was willing to go on the record of "You can exercise the 2A or 5A but you cannot have them both".

Someone on the other side thought enough of this issue that those two words were pulled at the very last minute - and GOAL remained silent on it other than to update their summary. I do not know of that was an oversight, acceptance of defeat, or strategic move not to piss off someone who was otherwise friendly to our side. I just know that the lobbyist on our side did not make a public issue of it.

(color added for emphasis)

I disagree to an extent, at least as it extends to implementation (through a Connecticut lens). Even with a de novo standard, there is still an element of subjectivity that is applied- as can be evidenced via numerous hearings here in Connecticut (including some which involve invocation or utilization of the right to remain silent during police encounters, as you exemplified). In the (Connecticut) hearings that I've viewed video of, the difference is that the de novo standard shifts the consideration from the act itself to the context which then wraps back into the real question at play which is whether, or not the applicant/appellant would post a danger to public safety if allowed to have a permit to carry. (One of the really interesting things about our appeal system in Connecticut is that in addition to examination and cross examination by the issuing authority and appellant, the administrative board also has an examination role with respect to each witness, which allows lines of questioning to be considered that neither side may have thought relevant or desirable to ask).

 

[Rob Boudrie]

the difference is that the de novo standard shifts the consideration from the act itself to the context which then wraps back into the real question at play which is whether, or not the applicant/appellant would post a danger to public safety if allowed to have a permit to carry

The de novo standard means the court is conducting a review and rendering a decision based on its judgment as to whether or not the circumstances warrant debaring the individual the use of arms. Lacking a de-novo standard, the court does not have to issue the decision it would if it reviewed the facts, but only decide if the issuing authority was arbitrary, capricious and abused discretion. (The courts have said this directly). In other words, the court gets to knowingly uphold a decision it knows is unfair lacking de novo review.

It does not shift the consideration, just who does it. The consideration shift of which you speak is outside the definition of what de novo is, but that does not mean it is not happening.

Does the CT appeal system allow hearsay evidence, and for non-convictions to be used against an applicant?

 

[JAD]

The de novo standard means the court is conducting a review and rendering a decision based on its judgment as to whether or not the circumstances warrant debaring the individual the use of arms. Lacking a de-novo standard, the court does not have to issue the decision it would if it reviewed the facts, but only decide if the issuing authority was arbitrary, capricious and abused discretion. (The courts have said this directly). In other words, the court gets to knowingly uphold a decision it knows is unfair lacking de novo review.

It does not shift the consideration, just who does it. The consideration shift of which you speak is outside the definition of what de novo is, but that does not mean it is not happening.

Does the CT appeal system allow hearsay evidence, and for non-convictions to be used against an applicant?

That's the reason why I refer to it as in practice. That practice is justified by the de novo standard that is applicable to their proceedings.

They use a modified rules of evidence that they describe as adhering to "fundamental fairness" which is less restrictive than the rules of evidence applicable to Judicial Branch proceedings. (A party aggrieved by the outcome of administrative appeal can then appeal to the Superior Court, which would only be able to overturn the administrative decision if there was no reasonable way that it could have been reached.) There is a degree of hearsay that is allowed (generally).

Connecticut has a very unique situation about non-convictions, because of the erasure statute. If the non-conviction occurred in Connecticut, the individual could claim that they were never arrested, under oath and not be lying (i.e. legal fiction). Connecticut law also requires that records of non-convictions be destroyed within a specific timeframe (which sometimes does not happen). IF documents (from non-convictions) do remain, they usually can't be entered into evidence or be used to refresh a witness' memory (even before the hearing). Some documentary evidence, e.g. records of protective orders (issued by the criminal court) do survive a non-conviction and can be used as evidence. (The legal fiction that allows an individual to deny a CT arrest resulting in non-conviction does not extend to the protective orders. An individual whose arrest resulted in issuance of a protective order but was not convicted can deny having been arrested but would have to answer in the affirmative about the protective order.) [There are also instances in which charges can be subbed down from misdemeanors to infractions and violations. Based on judicial records that I have personally examined, UAR's and information associated with the original criminal charge are retained in those situations. I don't know how BFPE handles those.] During appeals hearings, an individual who has knowledge of an incident can testify about what they remember about the incident , from memory. (e.g. a police officer might be able to remember the details of the incident, what he observed, what was said to him, what police actions he took, etc... and be able to permissibly testify to that). Out of state non-convictions are more complicated and may be able to be introduced if they aren't subject to an erasure statute like Connecticut has. An arrest is not required for an individual to be unsuitable. For example, there have been multiple instances in which issuing authorities have based suitability denials on police intelligence (e.g. one such denial involved an appellant who had been alleged to be an uncharged co-conspirator in a drug dealing case, another involved an individual who was alleged to be a member of a gang)

 

[OMM 0000]

Correct me if I am wrong, but i think I might like my chances for an unrestricted LTC (Boston) from the MSP who could also decide it isn’t as much their problem.

Edit: Saw the MSP letter

 

[Coyote33]

Lets also remember that the process as defined in statute and regulation does NOT include an interview. This is something that Mass towns have taken upon themselves ENTIRELY on their own. It is an extra legal requirment. But we comply because we don't want to be deemed "unsuitable".

Even still your comment is silly. Every government agency accepts proof of shipment and even more effectively, proof of receipt of the required form by the addressee.

If they went to an online system, all these problems could mostly go away.

 

[Broc]

Lets also remember that the process as defined in statute and regulation does NOT include an interview. This is something that Mass towns have taken upon themselves ENTIRELY on their own. It is an extra legal requirment. But we comply because we don't want to be deemed "unsuitable".

And its pretty retarded. It is not even an interview. At least the one I had to do, she just read my answers, asked me to confirm (I wanted to say - did I wrrte that? Yes? Then stop asking me) and it was done. Jjst a waste of time and another burden the local PD tries to place on people.

 

[42!]

If they went to an online system, all these problems could mostly go away.

And any letters or even the 2 references are not legally required, but see what happens if you don't comply.

 

[dcmdon]

Its amazing how in an effort to avoid face to face interactions to reduce the spread of Covid, the towns have streamlined the renewal process.

Emailing applications, accepting credit cards, no interview. Lets see if all this great stuff sticks after the pandemic is finished.

 

[dcmdon]

If they went to an online system, all these problems could mostly go away.

But we would have new problems. Data retention. Oops, can't renew, the system will be down for 2 months. etc.

 

[Coyote33]

But we would have new problems. Data retention. Oops, can't renew, the system will be down for 2 months. etc.

They already retain data. When they change the law to do this, they should make it default that if it is down, you're good to go.

 

[42!]

They already retain data. When they change the law to do this, they should make it default that if it is down, you're good to go.

Maybe they "should" but let's be real, that's just a fantasy. Even if they changed most everything else, they aren't ever going to say it it's down it's an automatic go. Everyone knows no system is 100%, even a paper based system can be delayed.

As for a risk that an on-line system could go down, well we're already there. What? did you think the state isn't using a computer system?

So the reality is that the risk of data retention, and the system being unavailable exist NOW. Going to an online, direct state system will actually reduce the exposure to these risks because it will reduce who has access and how many people are involved in the process. The only reason the local departments are involved is so they can add extra requirements and delays. Let the state do it, follow the statutes, no more suitability, and one type of LTC with no restriction (even some very Lib towns/cities have admitted that restricted LTCs are BS). Distribute the LTCs through the DMV, they already have the distribution system in place and the equipment to print them. Improve the system AND save taxpayers some money...... oh wait, that's not how the Gov works.

 

[Coyote33]

More like penalized 10 yards (or whatever they do in football), as in "Go back to GO, find a plaintiff who can prove he applied for a PTP and has an FID and start again. And while you're at it, feel free to include a brief arguing an FID does not authorize possession of a handgun".

Morin v Lyver IS the plaintiff who proved he applied for a PTP and has an FID. Appeal is pending.

yup, exactly what the court told us to do in a round about way.

There is new movement in this case:

Comm2A Files Against Northborough (again) - Morin v. Lyver

The First Circuit told Alfred Morin he couldn't challenge his license prohibition because he didn't apply for the 'right' combination of licenses. Well, now he can. He got the FID, the PTP was denied, and the NPD Chief gets sued again - Morin v. Lyver.

www.northeastshooters.com

 

[Coyote33]

Its amazing how in an effort to avoid face to face interactions to reduce the spread of Covid, the towns have streamlined the renewal process.

Emailing applications, accepting credit cards, no interview. Lets see if all this great stuff sticks after the pandemic is finished.

Maybe it is time for someone to propose a bill to do EXACTLY THIS!

they aren't ever going to say it it's down it's an automatic go. Everyone knows no system is 100%, even a paper based system can be delayed.

Isn't that what the NICS is supposed to do?