Nichols v. Chief of Police of Natick

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18-P-363 Appeals Court
JAKE NICHOLS vs. CHIEF OF POLICE OF NATICK & others.1
No. 18-P-363.
Middlesex. October 9, 2018. - January 30, 2019.
Present: Meade, Sullivan, & McDonough, JJ.
Firearms. License. Practice, Civil, Judicial review of license
to carry firearms, Action in the nature of certiorari.
Civil action commenced in the Superior Court Department on
October 11, 2016.
The case was heard by Salim Rodriguez Tabit, J., on motions
for judgment on the pleadings.
David A. DeLuca for chief of police of Natick.
Jason A. Guida for the plaintiff.
Eric R. Atstupenas, for Massachusetts Chiefs of Police
Association, Inc., amicus curiae, submitted a brief.
Neil S. Tassel, for Commonwealth Second Amendment, amicus
curiae, submitted a brief.
SULLIVAN, J. Jake Nichols applied to the Natick police
department for a Class A (large capacity) license to carry
1 The Justices of the Natick Division of the District Court
Department.
2
firearms (LTC) in October of 2015. At the time of his
application, Nichols had a fifteen-year history of prescription
drug abuse, an addiction that had been facilitated in part by
his position as a licensed pharmacist. He had been in recovery
for five years, was reemployed, and his pharmacy license had
been reinstated, although he remained on probation with the
Board of Registration in Pharmacy. Natick police Chief James
Hicks (chief) found Nichols to be an "unsuitable" person, see
G. L. c. 140, § 131 (d), as appearing in St. 2014, c. 284, § 48,
and denied the application for a license to carry.
On review of that decision, see G. L. c. 140, § 131 (f), as
appearing in St. 2014, c. 284, § 51, a judge of the District
Court held an evidentiary hearing, made factual findings, and
concluded that the chief's denial of the LTC was not arbitrary,
capricious, or an abuse of discretion. On certiorari review,
see G. L. c. 249, § 4; Chardin v. Police Comm'r of Boston, 465
Mass. 314, 317, cert. denied sub nom. Chardin v. Davis, 134
S. Ct. 535 (2013), a judge of the Superior Court reversed the
decision of the District Court, vacated the denial of the LTC
application, and remanded the matter to the chief for a new
determination of eligibility. We conclude that the Superior
3
Court decision exceeded the bounds of permissible certiorari
review, and reverse.2
Background. We summarize the facts as found by the
District Court judge, supplementing the findings with facts she
implicitly credited and which are consistent with her opinion.
Nichols, age thirty-nine at the time of his application, is in
recovery from a long-standing drug addiction. He began using
Ritalin and other drugs in pharmacy school at age nineteen.
After graduating with a doctorate degree in pharmacy, he
married, had children, and worked as a pharmacist for several
pharmacies and health care providers. During this time, Nichols
became addicted to Adderall, Ritalin, and Vicodin. He was able
to hide his addiction from those close to him. He also denied
he had a drug abuse problem, even to himself.
Although Nichols had some periods when he was able to
remain drug free, he relapsed, and his drug use worsened.
Nichols was terminated from several pharmacy jobs, and in 2009
began working at Oncomed, a Waltham oncology center. At
Oncomed, Nichols uttered false prescriptions using the names of
unsuspecting doctors, falsified prescription slips on the
computer, and diverted drugs to himself. His behavior came
2 We acknowledge the amicus briefs of Commonwealth Second
Amendment and the Massachusetts Chiefs of Police Association,
Inc.
4
under scrutiny in 2010, and Nichols was fired. He voluntarily
entered an inpatient drug treatment program and surrendered his
pharmacy license. The United States Drug Enforcement
Administration, the State Police, and the Waltham police
conducted a joint investigation of offenses involving Class B,
C, and E drugs, resulting in 468 criminal charges of identity
fraud, uttering false prescriptions, false health care claims,
obtaining drugs by fraud, and using a false registration number,
in the Framingham, Natick, and Waltham Divisions of the District
Court Department.
Nichols admitted to sufficient facts to warrant a finding
of guilt on eighteen charges, which were continued without a
finding. He remained on supervised probation until December,
2011, on three of the charges, and until July 25, 2014, on the
remaining charges; he successfully completed probation, and the
pending cases were dismissed. The Commonwealth filed a nolle
prosequi on the remaining charges. The Board of Registration in
Pharmacy suspended Nichols's license as part of a voluntary
agreement in which Nichols agreed to participate in a treatment
program geared to health care professionals.
Nichols participated in and completed the treatment
program, and his license was conditionally reinstated subject to
a four-year probationary period beginning in 2015. He remains
in counselling, and he mentors addicts and parents of addicts in
5
group sessions. His application for a LTC had the support of
his treating substance abuse specialist.
Nichols applied to the chief for an unrestricted Class A
LTC on October 29, 2015, for the purposes of recreational
shooting and ultimately becoming a firearms instructor.3
Detective Edward Arena conducted an investigation at the chief's
request and, upon its completion, met with the chief to review
the results. Detective Arena agreed with the chief's
determination that Nichols was not a suitable applicant at the
time; Arena was concerned about the length of Nichols's
addiction, the relatively short amount of time since he had
completed court-ordered probation, and Nichols's previous
3 Nichols enjoyed shooting at a target range. At the
District Court hearing he acknowledged that his ability to shoot
at a target range with a gun supplied by the range was not
affected by the denial of the license.
A Class A license "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). In the absence of a restriction, G. L.
c. 140, § 131 (a), does not prohibit the possession or carrying
of a concealed firearm in public. See Hightower v. Boston, 693
F.3d 61, 66 (1st Cir. 2012). Contrast G. L. c. 140, § 131 (b)
(precluding holder of Class B license from possessing or
carrying loaded firearm 'in a concealed manner in any public way
or place')." Chardin, 465 Mass. at 316. See St. 1998, c. 180,
§ 41.
6
relapses.4
By letter dated February 8, 2016, the chief denied
Nichols's application on the basis of Nichols's "468 offenses
. . . related to Identity Fraud, Violation of Controlled
Substances, Uttering False Prescriptions, False Health Care
Claims, Obtaining Drugs by Fraud and Using False Registration
Number . . . documented from November 2007 until June 2010."
At the hearing in the District Court, the chief agreed that
he found Nichols to be unsuitable "at this time" based "largely
on [Nichols's] record and appearances in [c]ourt," and Nichols's
admission to sufficient facts with respect to charges of fraud
in his role as a pharmacist. Like Detective Arena, the chief
also noted that Nichols's supervised probation had ended only a
year before his application, that Nichols remained on probation
with respect to his pharmacist's license, and that Nichols
remained in treatment for his addiction. The chief also stated,
"[I]n almost all cases, there's no cure, . . . it's a constant
battle . . . is what I hear from some counselors on substance
abuse. . . . [M]y concern is, the mix of firearms and substance
4 Detective Arena testified at the hearing that it was his
"opinion [that] someone so close to the drug addiction applying
for a firearms license, it's -- they're too close together in
time frame and I'm -- I'm worried about a relapse or any kind
[of] re-association with his past." Detective Arena also noted
that Nichols did not stop using drugs until he was "confronted
. . . by authorities," and that there had been lapses in
Nichols's prior attempts at sobriety.
7
and drugs and how it relates to the possession and ownership of
firearms and the risk that has for the public."
The District Court judge heard the testimony of both
officials and reviewed the documentary record. She found that
the chief had made a complete and thorough investigation and had
denied the license because of the risks associated with
addiction, the fraudulent nature of the charged offenses, the
public safety risk associated with "the mix of firearms and
substance abuse," "and the short period of time that has
[e]lapsed from the time of the charges/addiction to today."
Additionally, the judge credited Detective Arena's testimony
that the decision was based on "concern about a relapse." The
judge treated the chief's denial as an interim decision, not a
permanent one, finding that the chief had denied the license "at
this time." She also stated that Nichols's "commitment to his
sobriety and to helping others learn about addiction is to be
commended, and I am confident that at some point in time he will
obtain a LTC."
Nichols filed an action in the nature of certiorari in the
Superior Court. G. L. c. 249, § 4. On certiorari review, a
judge of the Superior Court concluded that the chief's denial of
the LTC was arbitrary and capricious because his testimony
demonstrated a categorical opposition to approving a LTC for a
recovering addict. The judge found that "in the mind of the
8
chief, addiction is a disqualifying status that can never be
abated, regardless of rehabilitation." The judge also concluded
that the chief erred as a matter of law because there had been
no showing of violent conduct, and "violence is the
disqualifying individual characteristic under the suitability
standard." This appeal followed.
Standard of review. Because the standard of review is
central to our decision in this case, we summarize the statutory
scheme and the reviewing court's standard of review in some
detail.
"The licensing authority may deny [an] application . . .
if, in a reasonable exercise of discretion, the licensing
authority determines that the applicant . . . is unsuitable to
be issued . . . a license to carry." G. L. c. 140, § 131 (d).5
"The 'suitable person' standard gives the licensing authority
. . . 'considerable latitude' or broad discretion in making a
licensing decision." Chardin, 465 Mass. at 316, quoting
Ruggiero v. Police Comm'r of Boston, 18 Mass. App. Ct. 256, 259
(1984). The licensing authority must consider whether an
applicant is suitable or unsuitable based on "(i) reliable and
credible information that the applicant or licensee has
5 The licensing authority considers an applicant's
suitability only after first determining that the applicant is
not a "prohibited person" under G. L. c. 140, § 131 (d).
9
exhibited or engaged in behavior that 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).6
On review of a denial of a LTC, see G. L. c. 140,
§ 131 (f), a judge of the District Court, after an evidentiary
hearing, may find facts and direct the licensing authority to
issue a license if the judge finds that the licensing authority
had "no reasonable ground" for denying the license. Id.7 See
Chardin, supra at 317, citing Godfrey v. Chief of Police of
Wellesley, 35 Mass. App. Ct. 42, 44–45 (1993). A conclusion
that the licensing authority lacked any reasonable ground to
deny the license "is warranted only upon a showing by the
6 If the applicant is deemed suitable, the licensing
authority will determine whether the applicant has a "proper
purpose" in seeking a license to carry, see Ruggiero, 18 Mass.
App. Ct. at 259; that is, "good reason to fear injury to the
applicant or the applicant's property or for any other reason,
including the carrying of firearms for use in sport or target
practice only, subject to the restrictions expressed or
authorized under this section." G. L. c. 140, § 131 (d).
7 "[A] District Court judge is not limited to review of an
administrative record established by the . . . licensing
authority." Chief of Police of Worcester v. Holden, 470 Mass.
845, 862 (2015). Instead, the District Court judge may consider
all "relevant evidence tending to show that [the applicant] is a
proper person to hold a license to carry a firearm, or that the
action of the licensing authority was arbitrary or capricious,
or an abuse of discretion." Id., citing Chief of Police of
Shelburne v. Moyer, 16 Mass. App. Ct. 543, 546 (1983).
10
applicant that the licensing authority's 'refusal [to grant
. . . the license] was arbitrary, capricious, or an abuse of
discretion.'" Godfrey, supra at 46, quoting Chief of Police of
Shelburne v. Moyer, 16 Mass. App. Ct. 543, 546 (1983).
On certiorari review a Superior Court judge may "correct
only a substantial error of law, evidenced by the record, which
adversely affects a material right of the plaintiff." Chardin,
465 Mass. at 321 n.15, quoting Massachusetts Bay Transp. Auth.
v. Auditor of the Commonwealth, 430 Mass. 783, 790 (2000). See
G. L. c. 249, § 4. An appellate court "stand[s] in the same
position as the judge below." Frawley v. Police Comm'r of
Cambridge, 473 Mass. 716, 729–730 (2016). "Judicial review
. . . proceeds under the same standard whether conducted by [the
appellate] court or . . . the Superior Court." Id. at 729.
Discussion. In Chief of Police of Worcester v. Holden, 470
Mass. 845, 849 (2015), the Supreme Judicial Court considered
whether an applicant for a license to carry could be denied the
license on the basis of a five year old incident of domestic
abuse. The court held that the five year old incident was not
stale, and that it was "within [the defendant's] grasp" to
engage in evaluation and treatment that would "alleviate [the
chief's] legitimate concerns" about his suitability. Id. at
864. Relying on Holden, Nichols maintains that a licensing
authority must consider an applicant's rehabilitation in
11
determining suitability, and that past addiction may not serve
as a permanent disqualifier. Nichols has characterized the
chief's disqualification determination as immutable, contending
that the chief "has been unyielding in his position that a
recovered drug addict should never be allowed to possess a
firearm."
Nichols is correct that in the absence of a conviction of
the offenses charged, the statute does not mandate that he be
permanently barred from receiving a LTC. See G. L. c. 140,
§ 131 (d) (i) (defining a "prohibited person" to include, among
other things, a person who has been convicted of a violation of
G. L. c. 94C). And, as Holden indicates, the licensing
authority must take into consideration efforts at
rehabilitation. The chief does not quarrel with either
proposition of law. Rather, the chief contends that the
Superior Court judge exceeded the scope of certiorari review by
concluding that the chief denied Nichols's application on the
basis that addiction rendered a person permanently unsuitable.
We agree that the Superior Court judge erred in making a
factual finding that the chief's decision was based on a belief
that "addiction is a disqualifying status that can never be
abated, regardless of rehabilitation." The District Court judge
had already made a factual finding that "[the chief] believes
that at this time the petitioner is unsuitable because of this
12
risk given the fraudulent nature of the charges, the extent of
the prior addiction, and the short period of time that has
[e]lapsed from the time of the charges/addiction to today."8
The Superior Court judge's new factual finding to the
contrary exceeded the scope of certiorari review in two
interrelated respects. On certiorari review the Superior Court
judge is limited to determining whether the District Court judge
has made a "substantial error of law, evidenced by the record,
which adversely affects a material right of the plaintiff"
(citation and quotation omitted). Chardin, 465 Mass. at 321
n.15. This determination must be made on the basis of the facts
as found by the District Court judge. Certiorari review is
limited to making "a ruling of law that does not require
findings of fact, determinations of credibility, or the
application of administrative expertise." Frawley, 473 Mass. at
729. See Police Comm'r of Boston v. Robinson, 47 Mass. App. Ct.
The chief's description of addiction as an ongoing
8
struggle comports with the Nichols's own testimony at the
District Court hearing, as well as his character witness's
description. In contrast, Nichols now argues on appeal that he
was fully rehabilitated at the time he submitted his license
application and is no longer an addict. The chief's description
of relapse as part of the process of recovery (as opposed to a
state separate from addiction) was derived from his work with
substance abuse counsellors and is consistent with the Supreme
Judicial Court's recent treatment of recovery as an ongoing
process. See Commonwealth v. Eldred, 480 Mass. 90, 95 (2018)
("[An] individualized approach to probation fosters an
environment that enables and encourages recovery, while
recognizing that relapse is part of recovery").
13
767, 770 (1999), quoting Johnson Prods., Inc. v. City Council of
Medford, 353 Mass. 540, 541 n.2, cert. denied, 392 U.S. 296
(1968).
Although neither the chief nor the District Court judge
stated that they believe a recovering addict is permanently
unsuitable, neither described a preset duration of sobriety
Nichols must achieve, or any explicit conditions Nichols must
fulfill before he would become suitable for an LTC. Nichols
contends, in essence, that by failing to set a clear time limit
on his present unsuitability, the District Court judge committed
a substantial error of law because the chief's decision was
arbitrary, capricious, and an abuse of discretion. However,
licensing authorities are not required to provide denied
applicants a definitive time period in which a past act will no
longer render the applicant unsuitable. See Holden, 470 Mass.
at 864 ("We are not prepared to determine, on this record, what
period of time must pass before the chief may no longer
consider" past incidents). Rather, each applicant may be
considered individually in light of the extent of the
applicant's past and the nature of the applicant's recovery.
Citing Holden, 470 Mass. at 856, the Superior Court judge
also relied on his view that "violence is the disqualifying
individual characteristic under the suitability standard." This
observation misapprehends the statute, whose mandate is to
14
determine whether an applicant for a LTC "may create a risk to
public safety." G. L. c. 140, § 131 (d).
"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. The statute does not limit
its scope to those involved in violent crime. For example, a
"prohibited person," as defined by G. L. c. 140, § 131 (d),
includes any person who has been convicted of a felony, a
misdemeanor punishable by more than two years of imprisonment, a
violent crime, a law regulating firearms where a term of
imprisonment may be imposed, a law regulating controlled
substances, or a misdemeanor crime of domestic violence as
defined under Federal law. G. L. c. 140, § 131 (d) (i)-(ii).
The statute also severely limits (with exceptions not applicable
here) access to firearms for those who have been "committed to a
hospital or institution for mental illness, alcohol or substance
abuse." G. L. c. 140, § 131 (d) (iii). Further, it prohibits
issuing a LTC to anyone under the age of twenty-one, an "alien
who does not maintain lawful permanent residency," or anyone who
has received a dishonorable discharge from the United States
military, among others. See G. L. c. 140, § 131 (d) (iv-x).
In sum, whether the potential risk is due to youth,
illness, or certain types of past behavior, the Legislature has
drafted a statute intended "to prevent the temptation and the
15
ability to use firearms to inflict harm, be it negligently or
intentionally, on another or on oneself." Gould v. Morgan, 907
F.3d 659, 673 (1st. Cir. 2018), quoting Commonwealth v. Lee, 10
Mass. App. Ct. 518, 523 (1980). The danger of negligent
discharge of a gun in the hands of a person under the influence
of amphetamines or opiates is evident. The District Court judge
did not commit a substantial error of law when she accepted the
chief's determination that "the mix of firearms and substance
abuse is a public safety risk."
Conclusion. For the reasons stated, the judgment is
reversed, and a new judgment is to be entered in the Superior
Court affirming the denial of Nichols's application for a
license to carry.
So ordered.