• Miyares and Harrington, LLP

Gun Licenses: Some Are Granted; Some Are Not

A person must be licensed to carry a gun under M.G.L. c. 140, §131 in order to preserve the public health, safety and welfare. The licensing authority must make a two-step inquiry to determine if the applicant (1) is a suitable person and (2) has a proper purpose for carrying a firearm. The licensing authority may also restrict such licenses to specific purposes and revoke a license if the individual is no longer suitable. The licensing authority has considerable latitude in making those decisions, but surprisingly little precedent to follow. Both Phipps v. Police Commissioner of Boston and Nichols v. Chief of Police of Natick, two recent decisions by the Supreme Judicial Court, provide some guidance on how that discretion may be exercised.

In the Phipps case, the Supreme Judicial Court found that the Boston Police Department overstepped its authority by revoking a license without a reasonable ground. Suitability is tied to the goal of keeping firearms out of the hands of persons who could cause a risk to public safety. The applicant had been robbed at gunpoint while closing his business in the Dudley Square area of Boston. He thereafter sought a license to carry a firearm for protection. Despite relaying this reason to the officer who processed his application, she advised him to seek only a license for hunting and target shooting and request to remove the restriction once he had received the license. The applicant followed this advice, but his request to remove the restriction was denied. When he sought clarification on the issue, the head of the licensing bureau found that he was no longer a suitable person because the applicant purportedly mischaracterized his conversation with the licensing officer and the applicant was not able to recite his exact number of criminal charges and arraignments. The SJC ruled that, while a license holder does not need to violate the law in order to be deemed unsuitable, “discretion to make a suitability determination is not without limits.” The Department’s stated reason for revoking the license were not reasonably related to the statute’s goal of keeping firearms out of the hands of persons who could be a risk to public safety. The court also held that the rejection of the applicant’s request to lift the restriction was similarly improper because the applicant had demonstrated that he sought the license for a proper purpose.

In Nichols, the SJC upheld that the Natick Police Department’s denial of the applicant’s application for a license to carry on the grounds he was a recovering drug addict. Nichols was in substance abuse recovery for a 15-year stimulant and opiate addiction. He was also a pharmacist. At the time of his application, Nichols had completed a supervised probationary period and his pharmacist’s license had been reinstated, subject to a four-year probationary period. He was also continuing treatment for his addiction, with his substance abuse specialist supporting the application. Nevertheless, the Department denied his application on the ground that he was unsuitable. The SJC held that licensing authorities are not required to provide a denied applicant a definitive time period in which a past act will no longer render the applicant unsuitable. Rather, each application must be considered in light of the extent of the applicant’s past and the nature of the applicant’s recovery. In this respect, the SJC agreed that the Department had correctly evaluated—and denied—Nichols’ application.



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