Chief of Police of Shelburne v. Moyer

• Citation: 16 Mass.App.Ct. 543,453 N.E.2d 461
• Parties: CHIEF OF POLICE OF SHELBURNE v. Paul S. MOYER.
• Decision Date: 02 November 1983
• Court: Appeals Court of Massachusetts

Page 461

453 N.E.2d 461

16 Mass.App.Ct. 543

CHIEF OF POLICE OF SHELBURNE v. Paul S. MOYER.

Appeals Court of Massachusetts Franklin.

Argued April 13, 1983.

Decided Aug. 22, 1983.

Further Appellate Review Denied Nov. 2, 1983.

Michael F. Farrington, Sp. Asst. Atty. Gen., for plaintiff.

Marguerite M. Dolan, Turners Falls, for defendant.

Before HALE, C.J., and ARMSTRONG and KASS, JJ.

HALE, Chief Judge.

The defendant in this action in the nature of certiorari (G.L. c. 249, § 4) was denied a license to carry firearms (G.L. c. 140, § 131, as amended by St.1975, c. 113, § 1) and filed a petition for judicial review in a District Court under the second paragraph of § 131. After a hearing a judge of that court ordered that the license be issued, and the chief of police filed the present action in the Supreme Judicial Court. The case was transferred to the Superior Court (G.L. c. 211, § 4A, as amended through St.1978, c. 478, § 100), where a judge upheld the judgment of the District Court. The chief of police has appealed from that determination. We reverse.

As the review by the Superior Court was confined to the record of the District Court, our review on appeal is also directed to that record to determine whether there are substantial errors of law apparent on that record adversely affecting material rights. Cambridge Housing Authy. v. Civil Serv. Commn., 7 Mass.App.Ct. 586, 587-588, 389 N.E.2d 432 (1979), and cases therein cited. Murray v. Justices of the Second Dist. Court of E. Middlesex, 389 Mass. 508, 511, 451 N.E.2d 408 (1983).

We set out the background facts. In 1978, the defendant, a resident of Shelburne Falls, pleaded guilty to illegal possession of marijuana and was placed on probation. His probation ended on January 23, 1980. Thereafter his case was dismissed and the record of conviction ordered sealed pursuant to G.L. c. 94C, § 34, as amended through St.1975, c. 369, and G.L. c. 94C, § 44.

On April 29, 1981, the defendant filed the application with the chief of police of Shelburne Falls for a license to carry a firearm. On May 7, 1981, the chief of police wrote to the defendant stating that his application was denied. He gave only one reason for the denial: "Because of your conviction for possession of marijuana I am required by law not to issue a license to carry a firearm to you."

A week later, on May 13, the chief of police sent a letter to the defendant's attorney offering additional reasons for denying the license, viz: "In addition the factors surrounding Mr. Moyer's arrest and conviction have been taken into consideration and I feel that Mr. Moyer is not a proper person to carry firearms in accordance with Chapter 140, Section 131 of the MGL."

The defendant, on May 14th, petitioned the District Court to review the chief of police's denial of the license application, alleging that no record of conviction existed which could disqualify him from being issued a license and that, therefore, he was entitled to have the license issued to him.

At the hearing on the defendant's petition, the judge heard evidence from the chief of police on the question why he deemed the defendant to be an unsuitable person to have a license to carry a firearm but rejected some of his proffered testimony on the grounds that it was hearsay or was not the "best evidence." The judge also received evidence on the question whether the defendant was disqualified by law to have such a license.

The decision entered following the hearing in the District Court decided only that since the record of the defendant's conviction had been sealed, it could not be the basis for denying the defendant's application. The decision concluded with the following order: "On the basis of the statute and the facts in this case, the Petition for Review, I find that the petitioner is not disqualified by reason of law and the licensing authority is ordered to issue a license to carry a firearm to the petitioner."

General Laws c. 94C, § 34, second par., provides for the dismissal of proceedings and the sealing of the record of a person convicted of possession of certain controlled substances. The defendant appears to have qualified in all respects for dismissal of the charge for possession of marijuana and sealing of official records pertaining to the proceedings. That paragraph further provides: "Any conviction, the record of which has been sealed under this section, shall not be deemed a conviction for purposes of disqualification or for any other purpose." General Laws c. 140, § 131, disqualifies a person who has been convicted of the possession of a narcotic drug from the class of persons to whom a chief of police may issue a license to carry a firearm. The chief of police does not question the correctness of the judge's ruling that the provisions of G.L. c. 94C, § 34, second par., removed the defendant's conviction as a disqualification to receive the license applied for.

However, § 131 provides that after an investigation, if an applicant is not otherwise disqualified, the chief of police may issue a license to carry a firearm "if it appears that [the applicant] is a suitable person to be so licensed .... [for] the carrying of firearms for use in target practice only." ¹ In the absence of a finding that no reasonable ground existed for the chief of police to refuse the license on the basis...