PAX Centurion - January / February 2014

www.bppa.org PAX CENTURION • January/February 2014 • Page 21 Legal Thoughts: Eric S. Goldman, Esq. Byrne & Drechsler, L.L.P., Counsel to Members of the Boston Police Patrolmen’s Association Massachusetts FirearmLaws - A brief overview M assachusetts Law allows Police Officers to carry a firearm under the so-called “Color of Badge” Statute without also possessing a Firearms License to Carry. MGL c. 41, §98 “authorizes police officers to carry within the Commonwealth such weapons as the chief of police or the board or officer having control of the police in a city or town shall determine”. Officers that wish to carry outside the scope of their employment must obtain a Massa- chusetts Firearms License to Carry (“LTC”) pursuant to MGL c. 140, §131. The state legislature has enacted what the Supreme Judicial Court has termed “a large complex of legislation which relies not only on prohibitions but on controls of possession, carrying and transfer of firearms through techniques of licensing and identification.” Com- monwealth of Mass. v. Davis , 369 Mass. 886 at 888. Included amongst this “complex of legislation” are MGL 146, §131 which governs LTCs and which carries no manda- tory predicate. Although §131 contains several basis for dis- qualification of the applicant it also grants the licensing authority broad discretion to deny a license to an applicant who is otherwise not statutorily barred. The licensing authority can refuse to issue a LTC if it does not appear that the applicant is a “suitable person” to be issued such a license. Each of the permitting statutes includes a provision mandating revocation or suspension of issued permits upon the occurrence of any event that would have disquali- fied the holder from being issued an LTC. In order to obtain a LTC one must apply from the police depart- ment where the individual resides. For most BPPA members an application would be made to Boston Police Department. An applica- tion must be filled out. Falsifying information on an application is a crime and will result in a denial of the LTC even if you believe the information to be true, but are mistaken. One question to be careful of is question 10, which asks have you ever appeared in any court as a defendant for any criminal offense, including criminal traffic offenses. While an applicant does not have to disclose non-criminal traffic offenses, anything else must be disclosed. This question asks for information on court appearances. An arrest and an appearance are not the same thing. The key word is appeared, not simply ar- rested. As you know, many criminal court appearances do not involve physical arrest. Having been charged and convicted of a crime does not necessarily prohibit you from getting a license, however not answering truthfully will disqualify you. Understand that “ever ap- peared” includes all adult and juvenile appearances. It does not matter if you were found not guilty, if the charges were dismissed, or if you received a ContinuedWithout a Finding; the information must be dis- closed. Moreover, if you have a sealed record, you must indicate so. Sealed records are accessible for the purposes of firearms permitting. Boston Police also requires a separate form to be filled out by officers. Question 11 asks: “Are you now under any charges for any offense against the law,” and which could be construed to mean civil- ian complaints, IAD investigations and the like. Massachusetts law has set forth several disqualifiers that will preclude you from obtaining a LTC. Certain misdemeanor offenses, generally those involving violence, and all felony convictions will disqualify an applicant from ever obtaining a LTC. Convictions require a final finding and do not include arrests, arraignments, dis- missed cases or cases continued without a finding. The significant criteria for determining the definition of a felony in all cases is the maximum possible sentence at the time of conviction or adjudication, not the sentence actually received. Crimes that carry a penalty of more than 2½ years will disqualify a person from obtaining an LTC for life, regardless of the actual sentence, if any, imposed in a given instance. These same disqualifiers will also cause a LTC to be suspended or revoked. Examples of disqualification and/or offenses that would require suspension or revocation of a permit include operating under the influence offenses after July of 1994. Previ- ously, a conviction for operating under the influence prior to July of 1994 carried a maximum 2 year sentence and would not disqualify a person from obtaining a LTC. The same conviction after July of 1994 now carries a maximum 2½ year sentence and is a disqualifier for life if a person is convicted or pleads guilty. Cases that are Continued Without a Finding (“CWOF”) are not convictions. Normally charges are dismissed once the continuance period has passed. A CWOF is not a statutory bar to obtaining a LTC. However, in some cases a licensing authority may determine that someone is “unsuitable” to possess firearms based upon the charges that were CWOF and deny that person a LTC, and which is permitted under applicable state law. Persons denied a license or whose license has been suspended or revoked are allowed to petition the district court for judicial review of such a denial. The district court judge’s task is to determine whether the licensing authority correctly applied one of the statutory dis- qualifications. If the license authority has suspended or revoked or otherwise denied the issuance of an LTC based on the reasoning that the licensing authority determined the applicant to be “unsuitable” the judge must determine if the licensing authority abused its discre- tion, was arbitrary or capricious. In appealing a denial of suspension or revocation of an LTC based on suitability, the individual has the burden to produce substantial evidence that he is a proper person to hold an LTC. The judge must determine that there were no reasonable grounds for the denial and/or suspension or revocation of a license for See Firearm Law on page 26