Phipps v. Police Commissioner of Boston

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16-P-1045 Appeals Court
RICHARD PHIPPS vs. POLICE COMMISSIONER OF BOSTON.
No. 16-P-1045.
Suffolk. September 28, 2017. - January 30, 2019.
Present: Vuono, Agnes, & McDonough, JJ.
Firearms. License. Practice, Civil, Judicial review of license
to carry firearms.
Civil action commenced in the Supreme Judicial Court for
the county of Suffolk on July 29, 2014.
After transfer to the Superior Court Department, motions
for judgment on the pleadings were heard by Mary K. Ames, J.
James A. Reidy for the plaintiff.
Katherine Sarmini Hoffman, Special Assistant Corporation
Counsel, for the defendant.
McDONOUGH, J. Concerned for his safety and the protection
of his property, the plaintiff, Richard Phipps, a victim of an
armed robbery at his small retail business, successfully applied
to the police commissioner (commissioner) of the city of Boston
(city) for a license to carry a firearm pursuant to G. L.
2
c. 140, § 131. However, the commissioner, through the city
police department's (department) licensing unit, restricted
Phipps's license to target practice and hunting only, uses not
germane to his activities or intended purposes. At a meeting
with the commander of the department's licensing unit, Phipps
sought to persuade the commander to remove the restriction;
instead, based upon their conversation, the commander revoked
Phipps's license, deeming him no longer a suitable person to
possess a license. A judge of the Dorchester Division of the
Boston Municipal Court Department (BMC) denied Phipps's request
for judicial review of the license revocation and restriction.
Phipps sought further review in the Superior Court where, on
cross motions for judgment on the pleadings, the revocation was
affirmed. Because Phipps's license was restricted and then
revoked based upon a generalized, subjective determination of
unsuitability rather than specific, reliable information as
required by our case law, and because Phipps demonstrated a
proper purpose in seeking an unrestricted license, we reverse.
Background. 1. Facts. We summarize the relevant facts
from the record as follows. Phipps is a resident of Boston,
where he is part owner and operator of a small retail business
located at Dudley Square in the Roxbury section of Boston.
Phipps's duties at the store include closing the store at night
3
and making cash deposits at a nearby bank. Previously, while
closing his store one night, Phipps had been robbed at gunpoint.1
In April, 2013, Phipps applied to the licensing unit of the
department for a license to carry a firearm. His initial
contact at the police station in the Dorchester section of
Boston was Officer Angela Coleman of the firearms licensing
unit, who briefly interviewed him to ascertain whether he was
suitable to hold a firearms license. Officer Coleman took
Phipps's handwritten application and created a new application
on her computer. Despite Phipps telling Officer Coleman he
needed a license for protection, Officer Coleman, on her own,
typed in "sport and target" as Phipps's reason for requesting a
license. In doing so, Officer Coleman explained to Phipps that
because the city was "not really giving out license[s] to
carry," the department issued most licenses with restrictions,
and that after he received his license, he could then apply to
the commander of the licensing unit to have the restriction
1 In addition, Phipps's business partner, Wayne Atkinson,
had been a victim of two armed robberies while working at one of
the business's other locations. The department issued Atkinson
an unrestricted license to carry firearms. Because Atkinson was
robbed twice at their business, and because Phipps was "carrying
large sums of money," Atkinson advised Phipps that "it was a
very good idea for him to apply" for a license to carry a
firearm.
4
removed. Phipps accepted this explanation and signed the
application.2
About five months later, Phipps received a Class A license
to carry a firearm. The license was restricted to "target and
hunting."3 On September 30, acting on Officer Coleman's earlier
advice, Phipps wrote a letter to the commander of the licensing
unit, Lieutenant Detective John McDonough, requesting removal of
the target and hunting restriction. In his letter, Phipps
explained he needed an unrestricted license because (1) he is a
business owner, (2) he regularly makes deposits of large sums of
money, (3) he frequently must visit high crime areas in Roxbury
and Dorchester, and (4) he had been the victim of crime in the
past in the vicinity of his business after closing the store.
By letter dated October 8, 2013, Detective McDonough denied
Phipps's request, stating without explanation that Phipps had
2 At the BMC evidentiary hearing, Lieutenant Detective John
McDonough confirmed that this was department policy, except for
applicants who were either police officers or attorneys, who,
once approved as suitable, were issued unrestricted licenses.
3 In his complaint and throughout the record, the
restriction on Phipps's license to carry is referred to as
"target and sport shooting," even though the wording on his
license is "target and hunting." The discrepancy is
insignificant. In any event, there is nothing in the record
suggesting that Phipps either engaged, or had an interest, in
hunting or target or sport shooting.
5
not demonstrated a "proper purpose" for holding an unrestricted
license.
According to the record of the BMC evidentiary hearing,
Phipps thereafter telephoned Detective McDonough and again
requested removal of the license restriction. Detective
McDonough agreed to meet with Phipps at the police station so
that they could speak further and directed Phipps to bring his
license with him. Later that day, Phipps met with Detective
McDonough in the latter's office at the police station in
Dorchester. When Phipps arrived, Detective McDonough asked him
for his license. Phipps handed it to McDonough, who put it in
his pocket. Phipps began the meeting by telling Detective
McDonough that he had written to him on Officer Coleman's
recommendation as to how to remove the restriction on his
license. Detective McDonough concluded that Phipps "was giving
[him] the impression" that "Officer Coleman had authorized him
to have an unrestricted license," that, in essence, he was "all
set," and that his letter to McDonough was "just a formality."
Finding Phipps's story "very unusual" and seeking
clarification, Detective McDonough called Officer Coleman4 into
the room. After Coleman joined them, Phipps claimed that
4 The commissioner did not call Officer Coleman to testify
at the BMC hearing. There is nothing in the record as to what,
if anything, Coleman said after she joined the meeting.
6
McDonough was "misunderstanding it," and that Officer Coleman
had only instructed him to write the letter. McDonough then
accused Phipps of "chang[ing] his story." Detective McDonough
then turned the conversation to Phipps's criminal court history.
Phipps had never been convicted of a crime. Between 2005 and
2010 he was charged with various crimes, mostly nonviolent,
including violations for possession or possession with intent to
distribute a class D controlled substance, and various
automobile violations, each charge eventually dismissed.5
McDonough testified that Phipps "downplayed his record," quoting
Phipps as saying at the meeting: "Oh, it's really not that bad.
It's only a little thing, minor. It's all squashed [sic]. Not
-- it's all, you know, no convictions, no nothing. It's not a
bad record." With a printout of Phipps's history of dismissed
charges in front of him, Detective McDonough -- without showing
the printout to Phipps -- asked him his number of arraignments.
5 A printout of Phipps's board of probation report, admitted
in evidence at the evidentiary hearing, revealed no convictions.
The report reflected that charges in 2007 and 2010 for
possession with intent to distribute a Class D controlled
substance were dismissed following continuances without a
finding; charges in 2005 and 2006 for simple possession or
possession with intent to distribute a Class D substance were
dismissed, as was a charge in 2006 for possession of a
controlled substance in a school zone. Also, in 2006 Phipps was
arraigned on charges of disturbing the peace, interfering with a
police officer, disorderly conduct, and resisting arrest. On
the latter charge, there was a disposition of no probable cause.
The remaining charges were dismissed without conditions.
7
Phipps answered, "[F]our or five times." After Detective
McDonough explained to Phipps the difference between an arrest
and an arraignment, Phipps claimed he had been arraigned "three
or four times." Detective McDonough testified that Phipps had
been arraigned on twenty different charges.6
Dissatisfied with Phipps's responses during their meeting,
Detective McDonough informed Phipps he was no longer a suitable
person to hold a firearms license. McDonough concluded that
Phipps spoke inaccurately in their meeting by (1) leaving the
"impression" with McDonough that Officer Coleman had already
approved him for an unrestricted license and then "changing
[his] story" when Coleman joined the meeting, (2) "downplay[ing]
his [criminal] record", and (3) inaccurately reporting "his
criminal history." The meeting ended with Detective McDonough
keeping Phipps's license. Thereafter, Phipps received a letter
from the commissioner informing him that his license to carry a
firearm had been revoked based on a determination that he was an
unsuitable person. As reasons therefor, the letter stated that
(1) Phipps "inaccurately said [to Detective McDonough] that
[Officer] Coleman had recommended that he receive an
6 We discern from Phipps's board of probation report that
between May, 2005, and December, 2010, Phipps appeared in court
for arraignment eight times covering an aggregate of twenty
charges, all eventually dismissed.
8
unrestricted [license to carry]," and in a meeting with both
McDonough and Coleman, Phipps "changed his account," stating
that "[Officer] Coleman had told him to write a letter to"
McDonough; (2) Phipps "inaccurately understated the number of
[his criminal] charges"; and (3) Phipps "again understated the
content" of his record.
Pursuant to G. L. c. 140, § 131 (f), Phipps filed a
petition in the BMC for judicial review of both the
commissioner's decision to revoke his license and the imposition
of the target and hunting restriction.7 Following an evidentiary
hearing in which Phipps, his business partner Wayne Atkinson,8
and Detective McDonough testified, a judge denied Phipps's
petition without making any findings of fact or rulings of law.
Phipps then filed an action in the nature of certiorari pursuant
to G. L. c. 249, § 4, in the Supreme Judicial Court, which
transferred the action to the Superior Court. On cross motions
7 As then in effect, G. L. c. 140, § 131 (f), did not
explicitly provide for judicial review of license restrictions.
Effective January 1, 2015, the right to appeal from license
restrictions was made explicit. See St. 2014, c. 284, § 51.
Unless otherwise noted, all references herein to G. L. c. 140,
§ 131, refer to the statute as in effect at the time of the
events in this case, i.e., 2013. See St. 1998, c. 180, § 41.
We do not suggest that our analysis or conclusions would be
different under the current language of the statute.
8 Atkinson had accompanied Phipps to the meeting with
Detective McDonough.
9
for judgment on the pleadings, a judge of the Superior Court
upheld the license revocation.9 This appeal followed.
2. Standard of review. a. License revocation. "Any
applicant or holder aggrieved by a denial, revocation or
suspension of a license [to carry] . . . may . . . file a
petition to obtain judicial review in the district court having
jurisdiction in the city or town wherein the applicant filed
for, or was issued, such license." G. L. c. 140, § 131 (f). If
relief is denied in the District Court, the petitioner may then
file "an action in the nature of certiorari pursuant to G. L.
c. 249, § 4," in the Superior Court. Frawley v. Police Comm'r
of Cambridge, 473 Mass. 716, 727 (2016), quoting Firearms
Records Bur. v. Simkin, 466 Mass. 168, 179-180 (2013). "A
District Court judge may overturn a firearms licensing decision
as arbitrary or capricious where 'no reasonable ground' exists
to support the decision. G. L. c. 140, § 131 (f)." Simkin,
supra at 179. "On certiorari review, the Superior Court's role
is to examine the record of the [BMC] and to correct substantial
errors of law apparent on the record adversely affecting
material rights" (quotation omitted). Id. at 180.
9 Having upheld the BMC judge's denial of Phipps's petition
for review of the commissioner's revocation of his license, the
Superior Court judge did not reach the issue of the target and
hunting restriction.
10
"Judicial review of the commissioner's decision [by this
court] proceeds under the same standard" as a review conducted
by the Superior Court. Frawley, supra at 729. "We stand in the
same position as the [Superior Court] judge below in making that
determination." Id. at 729-730. "The decision by a reviewing
court is a ruling of law that does not require findings of fact,
determinations of credibility, or the application of
administrative expertise." Id. at 729. "[A] reviewing court
simply must determine whether the commissioner, on the basis of
the evidence before him, abused his discretion in a manner that
adversely affected [Phipps's] material rights." Id., citing
Simkin, supra at 179-180.
b. License restriction. In determining whether to issue a
license with restrictions, G. L. c. 140, § 131, outlines a "two-
step inquiry" the licensing authority must undertake when
evaluating an applicant. Ruggiero v. Police Comm'r of Boston,
18 Mass. App. Ct. 256, 259 (1984). First, as discussed above,
the licensing authority must "ascertain whether the applicant is
a 'suitable person' to possess a firearm. [If so,] the
licensing authority then must inquire whether the applicant
[has] a 'proper purpose' for carrying a firearm." Id. This
inclusion of a "proper purpose" requirement demonstrates the
Legislature's intention that the licensing authority have the
power to limit licenses to a specified purpose. Id. at 260.
 11
"In performing its task, the licensing authority is given
considerable latitude." Id. at 259. See Chardin v. Police
Comm'r of Boston, 465 Mass. 314, 316 (2013), citing Ruggiero,
supra at 259 (licensing authority has "'considerable latitude'
or broad discretion in making a licensing decision"). A
reviewing court must determine, on the basis of the evidence,
whether limiting the license to a specified purpose "would . . .
make arbitrary, capricious or an abuse of discretion the
commissioner's decision to deny the plaintiff a license for
self-protection." Ruggiero, supra at 261.
3. Statutory scheme. "The historical aim of licensure
generally is preservation of public health, safety, and welfare
by extending the public trust only to those with proven
qualifications." Leduc v. Commonwealth, 421 Mass. 433, 435
(1995), cert. denied, 519 U.S. 827 (1996). Anyone wishing to
lawfully carry a firearm in Massachusetts must either obtain a
license to carry firearms pursuant to G. L. c. 140, § 131, or be
exempt from the licensing requirements.10 Chardin, 465 Mass. at
315. A "[l]icensing authority," defined as "the chief of police
or the board or officer having control of the police in a city
A person may also apply for a firearm identification
10
card, which allows holders to own or possess a firearm, but only
within their residence or place of business. See G. L. c. 140,
§§ 129B, 129C.
12
or town, or person authorized by them," G. L. c. 140, § 121, as
appearing in St. 1998, c. 180, § 8, issues the firearms license.
G. L. c. 140, § 131 (d). The Class A license, at issue here,
authorizes the holder to possess and carry "firearms, including
large capacity firearms, and feeding devices and ammunition
therefor, for all lawful purposes, subject to such restrictions
relative to the possession, use or carrying of firearms as the
licensing authority deems proper." G. L. c. 140, § 131 (a).
The licensing authority, in this case the commander of the
licensing unit, is vested with "'considerable latitude' or broad
discretion in making a licensing decision." Chardin, supra at
316, quoting Ruggiero, 18 Mass. App. Ct. at 259. If the
licensing authority determines that the holder is no longer a
suitable person to possess the license, it may be revoked or
suspended, provided that the revocation or suspension is in
writing and states the reasons therefor. G. L. c. 140, § 131
(f).
Discussion. 1. Revocation of Phipps's license. At the
time of Phipps's application, the firearms licensing statute did
not define "unsuitable" person. See G. L. c. 140, § 131.11 Nor
In 2014, the Legislature amended § 131 (d), providing,
11
inter alia, criteria for finding an applicant unsuitable based
on
"(i) reliable and credible information that the applicant
or licensee has exhibited or engaged in behavior that
13
was the term defined in any regulation promulgated by the
Executive Office of Public Safety and Security, see Simkin, 466
Mass. at 180, or by the Boston police department.12 Furthermore,
"the limits of unsuitability have not been clearly established
by our case law." Id. It is clear, however, that an individual
may be deemed unsuitable to possess a firearms license for
reasons other than the specifically enumerated disqualifiers set
out in G. L. c. 140, § 131 (d).13 Simkin, supra at 180.
suggests that, if issued a license, the applicant or
licensee may create a risk to public safety; or (ii)
existing factors that suggest that, if issued a license,
the applicant or licensee may create a risk to public
safety."
G. L. c. 140, § 131 (d), as appearing in St. 2014, c. 284, § 48.
12Specifically, when asked at the BMC hearing who within
the department "makes the determination of suitability for . . .
a license to carry a firearm," Detective McDonough answered, "I
do." He further conceded that he alone, as the police
commissioner's "designee, . . . deemed Phipps unsuitable."
13"See DeLuca v. Chief of Police of Newton, 415 Mass. 155,
158-160 (1993) (finding of unsuitability based on criminal
convictions that were subject of governor's pardon); Howard v.
Chief of Police of Wakefield, 59 Mass. App. Ct. 901, 902 (2003)
(finding of unsuitability based on prior issuance of then-
expired abuse prevention orders); Godfrey v. Chief of Police of
Wellesley, [35 Mass. App. Ct. 42,] 47-48 [1993] (finding of
unsuitability based on license holder's refusal to cooperate
with prior police investigation); MacNutt v. Police Comm'r of
Boston, 30 Mass. App. Ct. 632, 635 (1991) (proper for licensing
authority to condition suitability determination on passing test
of firearm handling and firing proficiency) . . . . See also
Hightower v. Boston, 693 F.3d 61, 74-76 (1st Cir. 2012)
(rejecting challenge under Second Amendment to United States
Constitution to revocation of plaintiff's license on suitability
14
Phipps submits that the decision to revoke his license on
suitability grounds based on his conversation with Detective
McDonough was "completely arbitrary," because it was based on
Detective McDonough's "subjective belief" after a "10-15 minute
conversation" that Phipps was unsuitable, a belief at odds with
Detective McDonough's initial decision to issue Phipps the
license. The commissioner counters that McDonough reasonably
exercised his discretion to deem Phipps unsuitable and revoke
his license because "[Phipps] inaccurately represented his prior
communications with Officer Coleman and characterized the
contents of his [r]ecord in a misleading manner." Relying
principally on the decision of the United States Court of
Appeals for the First Circuit in Hightower v. Boston, 693 F.3d
61, 74-76 (1st Cir. 2012), the commissioner submits that
Detective McDonough properly revoked Phipps's license because he
"provided inaccurate information during the application process,
which is a valid consideration in the suitability
determination." We are not persuaded.
While the commissioner is correct that a license holder
need not violate the law or be statutorily disqualified to be
deemed unsuitable, the "discretion to make a suitability
determination is not without limits." Simkin, 466 Mass. at 181.
grounds after she provided false information in license renewal
application)." Simkin, 466 Mass. at 180-181.
15
"The goal of firearms control legislation in Massachusetts is to
limit access to deadly weapons by irresponsible persons."
Ruggiero, 18 Mass. App. Ct. at 258. As previously noted, while
the statute as then in effect did not define "unsuitable"
person, cases addressing the term have generally upheld the
denial or revocation of licenses where a person has a documented
risk to public safety.14 In this way, G. L. c. 140, § 131,
achieves its purpose of "keep[ing] firearms out of the hands of
persons who are not categorically disqualified, e.g., convicted
felons, but who nevertheless pose a palpable risk that they
would not use a firearm responsibly if allowed to carry in
public." Chief of Police of Worcester v. Holden, 470 Mass. 845,
854 (2015). In fact, the statute passes muster under the United
States and Massachusetts Constitutions precisely because it
"bears a reasonable, as well as a real and substantial, relation
to public health and safety." Id.
Viewed as a whole, we conclude that Phipps's statements to
Detective McDonough did not provide a "reasonable ground" for
the revocation of his license. The commissioner's stated
reasons for revoking Phipps's license -- Phipps's
mischaracterization to McDonough of his conversation with
Coleman about the process to seek removal of the target and
14 See note 13, supra.
16
hunting restriction on his license, and his failure to
accurately recite to McDonough the number of charges and the
arraignments from his court history -- are not reasonably
related to the statute's goal of keeping firearms out of the
hands of persons who could cause a risk to public safety. Put
another way, even if Detective McDonough's testimony about his
meeting with Phipps is accurate, nothing in the record reveals
any reasonable nexus between what Phipps said in that meeting
and a risk to public safety. While Detective McDonough may well
have found Phipps's account of his conversation with Officer
Coleman "[v]ery unusual," that is not a sufficient reason to
revoke his license. See Simkin, 466 Mass. at 181-183 (license
holder's use of false name to check into medical appointment and
employees' fear and alarm upon learning he was carrying
concealed weapons, while "arguably unusual but otherwise
innocuous actions," held not sufficient grounds to revoke
license to carry).
The same holds true for Phipps's understated opinion about
the seriousness of his court history, and his imperfect memory
of the number of times he had been arrested and arraigned, going
back a number of years. We find it significant that in his BMC
testimony, Detective McDonough downplayed Phipps's inaccurate
answers to these questions. Referring to the printout of
Phipps's history of dismissed charges, McDonough stated: "In
17
fairness to [Phipps], he had not seen it. It was on my desk and
[Phipps] had not seen it in fairness to him." Furthermore, in
his testimony, Detective McDonough acknowledged that there can
be a difference between the number of arrests, the number of
appearances for arraignment, and the number of charges.
Phipps's personal opinion that the dismissed charges
against him were "minor" and that his record with no convictions
was "really not that bad" had no bearing on Detective
McDonough's ability to fully assess Phipps's history of
dismissed charges to determine whether he was suitable. Even if
Phipps unduly downplayed his history, that falls short of a
"misrepresentation," which, "[i]n general, . . . must concern a
fact, and not an opinion or belief."15 Marram v. Kobrick
Offshore Fund, Ltd., 442 Mass. 43, 57 n.24 (2004).
Phipps's history of dismissed charges -- which only months
earlier did not render him unsuitable -- cannot fairly be recast
by the department based on Phipps's personal opinions about that
history. Neither Phipps's "inaccurate" account of his
15At oral argument, counsel for the commissioner argued
that Phipps "lied" to the detective during the interview. We
discern no support in the record, either at the BMC hearing, or
elsewhere, that either the department or the commissioner ever
accused Phipps of making a false statement of material fact to
either Coleman or McDonough, or of failing to disclose material
information relevant to the questions of suitability and proper
purpose.
18
conversation with Officer Coleman about the process for removing
the target and hunting license restriction, nor his failure to
accurately recite to McDonough the number of charges and
arraignments from his court history, created an increased risk
to public safety. Nor did any of Phipps's responses constitute
the withholding of facts material to a licensing decision.
The First Circuit's decision in Hightower v. Boston, supra,
upon which the commissioner principally relies, is not to the
contrary. There, department policy required the plaintiff, a
Boston police officer, to fill out an additional form and attach
it to her application for renewal of her license to carry a
firearm. Hightower, 693 F.3d at 68. One of the questions on
that form asked whether she had any pending complaints or
charges against her. She answered "no" when, according to the
department, there were in fact several findings regarding rules
violations pending against her arising out of an internal
affairs investigation of another officer.16 Once the licensing
authority discovered the undisclosed pending complaints, her
license was revoked. Id. at 68-69. The court concluded that
16According to the court, the parties disputed whether the
"status of [the] matter" at the time Hightower filled out the
form "amounted to 'pending' 'complaints or charges' within the
meaning of the form." Hightower did not appeal from the
revocation. Nor did she ever contact the department to "inquire
as to whether she had in fact answered a question on the form
untruthfully." Hightower, 693 F.3d at 69.
19
"the revocation of a firearms license on the basis of providing
false information as to the existence of pending complaints or
charges on the firearms license application form is not a
violation of the Second Amendment [to the United States
Constitution] in this case." Id. at 74. Thus, the court
concluded that the "particular ground for 'unsuitability' [was]
not subjective, and it [did] not confer too much discretion on
the licensing authority." Id. at 76. Detective McDonough, in
contrast, based his decision to revoke Phipps's license on his
own "impression" that Phipps was "changing [his] story" about
his conversation with Officer Coleman, and on McDonough's
perception that Phipps "downplayed" his history of dismissed
charges -- both subjective determinations, unlike the
applicant's nondisclosure of material facts at issue in
Hightower.17 Phipps did not provide any inaccurate or false
information on his license application,18 and his entire criminal
17The Hightower court concluded that inaccurately answering
"no" to a question about the existence of pending charges could,
"depending on the nature of the underlying [undisclosed]
complaints," materially impact suitability because "[a]n
accurate answer to the question is important to allowing the
licensing authority to investigate further and make an informed
decision on the licensing application." Hightower, 693 F.3d at
76.
18The commissioner maintains that Phipps's inaccurate
answers about his history of dismissed charges are the
equivalent of providing false information in connection with a
license application. The licensing statute provides a criminal
penalty for anyone who gives false information concerning his
20
court history was known to Officer Coleman and Detective
McDonough.
2. The target and hunting license restriction. The
licensing authority must determine whether an applicant has
"valid reasons for being licensed," including "good reason to
fear injury to person or property." Ruggiero, 18 Mass. App. Ct.
at 258-259. Phipps asserts that the target and hunting
restriction placed on his license prior to its revocation
violates G. L. c. 140, § 131. The commissioner responds that
the restriction is a proper exercise of the licensing
authority's discretion to issue restricted licenses, pursuant to
Detective McDonough's unwritten policy of issuing only
restricted licenses to every first-time applicant who is not
either a police officer or an attorney.19
Detective McDonough testified that the department had no
written guidelines for use in determining whether an applicant
criminal record in an application for any form of firearm
license or permit, G. L. c. 140, § 129, and also criminalizes
knowingly filing a license application containing false
information, G. L. c. 140, § 131 (h). Without suggesting that
the commissioner's argument is precluded, we note that nothing
in the record indicates that Phipps was subsequently charged
with either of these offenses.
19We find no language in the licensing statute that
supports the department's apparent practice of denying
unrestricted licenses to carry firearms to first-time applicants
who, like Phipps, are neither police officers nor attorneys.
21
has demonstrated a "proper purpose" for carrying a firearm.20 In
determining whether to remove restrictions on a license,
Detective McDonough testified that he considers the following
factors: whether the applicant is a member of law enforcement,
an attorney, or a business owner, whether the applicant can
demonstrate a reason to fear for his personal safety, and the
applicant's criminal history. In response to Phipps's detailed
written request to Detective McDonough for removal of the target
and hunting restriction, in which Phipps explained that he was a
victim of crime and that his business required him to deposit
large sums of money on a regular basis, Detective McDonough
informed Phipps by letter that his request was "denied because
you could not show that you have a proper purpose to possess [an
unrestricted] license." McDonough's denial letter made no
mention of Phipps's history of dismissed charges, nor did it set
forth any reasoning or explanation why he believed Phipps "could
not show [he had a] proper purpose."21 Here, even under
20At the BMC hearing, when asked on cross-examination
whether the commissioner had provided him with any "regulations
or guidelines . . . for making a determination of what is a
proper purpose," Detective McDonough answered, "I don't think I
have any."
21At the BMC hearing, McDonough agreed that his decision to
restrict Phipps's license to target and hunting was his "normal
course of procedure when processing licenses to carry,"
specifically, to restrict all first-time applicants' licenses to
target and hunting except for police officers or attorneys, who,
once approved as suitable, were issued unrestricted licenses.
22
Detective McDonough's stated criteria for evaluating an
applicant's "proper purpose" in seeking an unrestricted license,
Phipps demonstrated a "proper purpose." He was a business owner
who requested an unrestricted license to carry a firearm to
protect himself and his property, in particular when closing his
store at night and when carrying large amounts of cash to the
bank, having already been a victim of robbery at gunpoint under
that very circumstance. Thus, Phipps demonstrated a proper
purpose for the issuance of an unrestricted license to carry a
firearm. Contrast Ruggiero, 18 Mass. App. Ct. at 261.
Conclusion. Because Phipps has demonstrated by substantial
evidence his need to protect himself and his retail business,
and because the department failed to show that it restricted and
revoked his license to carry a firearm for objective reasons
related to public safety, the department was without reasonable
grounds to conclude he was an unsuitable person to possess a
firearm for any lawful purpose. The actions of the commissioner
In explaining the license restriction at the hearing, McDonough
did cite Phipps's "criminal history" but without elaborating on
any aspect of it. Phipps had applied for and been denied a
license to carry in 2009 (by an officer other than McDonough),
which McDonough testified was due to his "criminal history." In
referring to Phipps's "criminal history" after the 2009 denial -
- which, as noted, involved no convictions -- McDonough
testified that "it wasn't substantial." Phipps's record showed
three arraignments after 2009, all occurring in December, 2010.
Two were for nonmoving motor vehicle violations; the third was
for possession with intent to distribute a Class D substance,
which was continued without a finding and then dismissed.
23
challenged here were arbitrary and capricious, in that the
reasons given for the revocation and restriction of Phipps's
license to carry a firearm bear no reasonable nexus to public
safety. The exercise of administrative discretion, no less than
judicial discretion, must be limited to a consideration of "the
factors relevant to the decision." L.L. v. Commonwealth, 470
Mass. 169, 185 n.27 (2014). Nothing we have said in this
opinion should be read as diminishing in any way the broad
discretion that the licensing authority has to determine whether
an applicant for a firearms license is a suitable person and, if
so, what restrictions, if any, should be imposed on such a
license.
The judgment is reversed, and a new judgment shall enter in
the Superior Court reinstating Phipps's license to carry a
firearm, without restriction, for any lawful purpose.
So ordered.