Chardin v. Police Comm'r Boston, SJC–11196.

• Decision Date: 04 June 2013
• Docket Number: SJC–11196.
• Citation: 465 Mass. 314,989 N.E.2d 392
• Parties: Mirko CHARDIN v. POLICE COMMISSIONER OF BOSTON & another.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

465 Mass. 314

989 N.E.2d 392

Mirko CHARDIN

v.POLICE COMMISSIONER OF BOSTON & another.¹

SJC–11196.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Feb. 4, 2013.

Decided June 4, 2013.

Edward F. George, Jr., Malden, for the plaintiff.

Keith G. Langer for Commonwealth Second Amendment, Inc., amicus curiae.

William W. Porter, Assistant Attorney General, for the intervener.

Amanda E. Wall, for the defendant, was present but did not argue.

Present: IRELAND, C.J., SPINA, CORDY, BOTSFORD, GANTS, DUFFLY, & LENK, JJ.

SPINA, J.

In this case, here on a reservation and report by a single justice of this court, we consider whether the Massachusetts firearms licensing statute, G.L. c. 140, § 131 ( d )(i), infringes on Mirko Chardin's right to keep and bear arms under the Second and Fourteenth Amendments to the United States Constitution because it precludes him from ever obtaining a license to carry firearms where, in 1995, he was adjudicated a delinquent child ² after admitting to sufficient facts on a complaint charging him with one count of possession of a firearm without a license, and one count of unlawful possession of ammunition. We conclude that, consistent with the United States Supreme Court's decisions in District of Columbia v. Heller, 554 U.S. 570, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008)( Heller ), and McDonald v. Chicago, ––– U.S. ––––, 130 S.Ct. 3020, 177 L.Ed.2d 894 (2010)( McDonald ), the challenged statute does not infringe on a right protected by the Second Amendment.³

1. Statutory scheme. An individual who lawfully wants to carry a firearm ⁴ within the Commonwealth either must obtain a license to do so pursuant to G.L. c. 140, § 131, or be exempt from the statutory licensing requirements.⁵ See, e.g., G.L. c. 140, §§ 129C, 131F, 131G. See also Commonwealth v. Seay, 376 Mass. 735, 739, 383 N.E.2d 828 (1978). “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, 657 N.E.2d 755 (1995), cert. denied, 519 U.S. 827, 117 S.Ct. 91, 136 L.Ed.2d 47 (1996). In Massachusetts, there are two categories of licenses to carry firearms—Class A and Class B. See G.L. c. 140, § 131 ( a ) & ( b ). Each type of license may be issued by a “licensing authority,” defined as “the chief of police or the board or officer having control of the police in a city or town, or persons authorized by them,” G.L. c. 140, § 121, or by the colonel of the State police, G.L. c. 140, § 131 ( d ). The Class A license, which is the focus of this case, 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.” ⁶G.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”).

The licensing authority or colonel of the State police may issue a Class A license to carry firearms “if it appears that the applicant is a suitable person to be issued such license, and that the applicant has good reason to fear injury to his person or property, or for any other reason.” G.L. c. 140, § 131 ( d ). The “suitable person” standard gives the licensing authority or colonel “considerable latitude” or broad discretion in making a licensing decision. Ruggiero v. Police Comm'r of Boston, 18 Mass.App.Ct. 256, 259, 464 N.E.2d 104 (1984). See Howard v. Chief of Police of Wakefield, 59 Mass.App.Ct. 901, 902, 794 N.E.2d 604 (2003). However, an applicant is statutorily disqualified from obtaining a license to carry firearms if, among other reasons, the applicant “has, in any state or federal jurisdiction, been convicted or adjudicated a youthful offender or delinquent child for the commission of ( a ) a felony....” ⁷G.L. c. 140, § 131 ( d )(i).

Within forty days from the date of the application, the licensing authority shall “either approve the application and issue the license or deny the application and notify the applicant of the reason for such denial in writing.” G.L. c. 140, § 131 ( e ). If an application is denied, the aggrieved party may file, within ninety days after receiving notice, “a petition to obtain judicial review in the district court having jurisdiction in the city or town” where the application was filed. G.L. c. 140, § 131 ( f ). A judge, after an evidentiary hearing, may direct that a license be issued to the petitioner if the judge finds that there was “no reasonable ground” for denying such license, and that the petitioner “is not prohibited by law from possessing [the] same.” Id. See Godfrey v. Chief of Police of Wellesley, 35 Mass.App.Ct. 42, 44–45, 616 N.E.2d 485 (1993). The petitioner is entitled to relief only if the licensing authority's denial was “arbitrary, capricious, or an abuse of discretion.” Id. at 46, 616 N.E.2d 485, quoting Chief of Police of Shelburne v. Moyer, 16 Mass.App.Ct. 543, 546, 453 N.E.2d 461 (1983). Further judicial review is available to the petitioner by way of an action in the nature of certiorari. See G.L. c. 249, § 4. See also Levine v. Chief Justice of the Dist. Court Dep't of the Trial Court, 434 Mass. 1014, 1014, 750 N.E.2d 998 (2001); Godfrey v. Chief of Police of Wellesley, supra.

[465 Mass. 318]2. Factual and procedural history. The essential facts are not disputed. In early 1995, when Chardin was fourteen years old, one of his best friends was shot and killed for the pair of sneakers that the friend had been wearing. Fearing for his personal safety, Chardin obtained a handgun for his own protection. He never used it to commit a crime or threaten anyone. On January 18, 1995, while Chardin was standing in front of a plain-clothed police officer, the handgun fell from the pocket of his pants onto the ground. Chardin was arrested and taken into custody.

On January 19, 1995, he was charged in the Juvenile Court with one count of possession of a firearm without a license, and one count of unlawful possession of ammunition.⁸ On April 18, 1995, Chardin admitted to sufficient facts and was adjudicated a delinquent child with respect to both charges. He received a suspended commitment to the Department of Youth Services, was released to his mother's custody, and was given probation until April 18, 1996.

In the years since this incident, Chardin has been a law-abiding citizen. He graduated from college, earned a master's degree in teaching, has been working toward a Ph.D. in education, became an ordained minister, and has done volunteer work in his community. Chardin currently is employed as the head of the Putnam Avenue Upper School in Cambridge. He also is a coowner and manager of a small used car dealership in the Roslindale area of Boston, JBI Auto Sales LLC (JBI). He works there part-time, at night and on the weekends, and he regularly attends car auctions to buy vehicles for JBI. At these auctions, purchases must be made in cash, so Chardin is required to carry large amounts of money on his person, which has caused him to fear for his safety. In addition, JBI has a night deposit agreement with Citizens Bank whereby Chardin regularly makes large cash deposits for JBI, again raising personal safety concerns.

On April 26, 2010, Chardin submitted to the Boston police department an application for an unrestricted Class A license to carry firearms, which he stated that he was requesting for “all lawful purpose[s],” together with a fee of $100.⁹ On an attached worksheet, Chardin responded more specifically to a question about why he required such a license by stating that it was for “club use” ¹⁰ and for “protection as a used car dealer who is required to make large cash purchases/transactions.” By letter dated July 26, 2010, the police commissioner, who is the licensing authority for the city of Boston under G.L. c. 140, §§ 121 and 131, denied the application, stating: “[Y]ou have a sealed record with a disqualifying conviction(s) as outlined in chapter 180 of the Acts of 1998.”

On October 15, 2010, Chardin filed a complaint for judicial review in the Boston Municipal Court pursuant to G.L. c. 140, § 131 ( f ).¹¹ He stated that he was seeking a Class A license to carry firearms “due to the dangers involved in his used car dealership business.” In Count I of his complaint, Chardin alleged that the denial of his application was based on an error of law in that he did not have any convictions or adjudications on his juvenile record that would disqualify him under G.L. c. 140, § 131 ( d )(i), from obtaining a license because the charges on his record ultimately were dismissed. In Count II, Chardin alleged that the denial of his application was a mistake due to the absence of disqualifying factors. Finally, in Count III of his complaint, Chardin alleged that if his juvenile charges were deemed to be automatic disqualifiers under G.L. c. 140, § 131 ( d )(i), then the statute, as applied to Chardin, was unconstitutional because it violated his fundamental right to keep and bear arms as guaranteed by the Second and Fourteenth Amendments to the United States Constitution pursuant to Heller, 554 U.S. at 635, 128 S.Ct. 2783, and McDonald, 130 S.Ct. at 3050.¹²

An evidentiary hearing was held on March 15, 2011. Although the judge agreed with the police commissioner that the only issue before her was the applicability of G.L. c. 140, § 131 ( d )(i), to Chardin's circumstances, she allowed Chardin to testify regarding his suitability for a license. ¹³ Chardin described the events leading up to his adjudication as a...