DuPont v. Nashua Police Dep't

• Decision Date: 20 February 2015
• Docket Number: Nos. 2013–513,2014–017,s. 2013–513
• Citation: 113 A.3d 239,167 N.H. 429
• Parties: Greg DUPONT v. NASHUA POLICE DEPARTMENT Gregory DuPont v. Peter McDonough & a.
• Court: New Hampshire Supreme Court

167 N.H. 429

113 A.3d 239

Greg DUPONT

v.NASHUA POLICE DEPARTMENT

Gregory DuPont

v.Peter McDonough & a.

Nos. 2013–513

2014–017

Supreme Court of New Hampshire.

Argued: June 26, 2014

Opinion Issued: February 20, 2015

Penny S. Dean, of Concord, by brief and orally, and Jay Edward Simkin, non-attorney representative, by brief and orally, for the petitioner.

Stephen M. Bennett, corporation counsel, of Nashua, on the brief and orally, for respondent City of Nashua.

Joseph A. Foster, attorney general (Rebecca L. Woodard, assistant attorney general, on the memorandum of law and orally), for respondents Peter McDonough, Christopher B. Casko, John J. Barthelmes, and Sean Haggerty.

HICKS, J.

In these consolidated cases, the petitioner, Gregory DuPont, appeals: (1) an order of the Circuit Court (Leary, J.) affirming the revocation by the respondent City of Nashua (City), through its chief of police, of his license to carry a loaded pistol or revolver; and (2) an order of the Superior Court (Nicolosi, J.) denying his motion for preliminary injunctive relief in a proceeding brought against the respondents Peter McDonough, Sean Haggerty, Christopher B. Casko, and John J. Barthelmes, challenging the denial of his request for an armed security guard license. We reverse and remand.

The following facts are taken from the trial courts' orders or are supported in the record. In 1998, the petitioner was convicted in Massachusetts of operating a motor vehicle under the influence of liquor (the 1998 conviction). That offense was a misdemeanor that carried a potential maximum prison sentence of two and a half years. Thus, the petitioner's 1998 conviction rendered him ineligible, under Massachusetts law, to possess or carry a firearm, at least as of the 1998 amendments to the Massachusetts firearms laws. See Dupont v. Chief of Police of Pepperell, 57 Mass.App.Ct. 690, 786 N.E.2d 396, 398–400 (2003) (applying 1998 amendments where conviction predated them), Mass. Gen. Laws Ann. ch. 140 §§ 129B (West Supp.1997) (amended 1998, 2000, 2002, 2003, 2004, 2010, 2011, 2014), 129C (West Supp.1997) (amended 1998, 1999, 2010, 2014), 131 (West Supp.1997) (amended 1998, 2002, 2003, 2004, 2008, 2010, 2011, 2014), Mass. Gen. Laws Ann. ch. 269 § 10(a) (West Supp.1997) (amended 2006, 2014), (h) (West Supp.1997) (amended 1998, 2006). In 2005, upon the petitioner's petition for review, the Massachusetts Firearm Licensing Review Board (FLRB) found that the petitioner was "a suitable person to possess a license to carry firearms, and his right to possess a firearm therefore is fully restored in the Commonwealth." The FLRB accordingly determined that, notwithstanding the 1998 conviction, the petitioner could apply to his licensing authority for a license to carry firearms.

In 2007, the City's chief of police issued the petitioner a license to carry a pistol or revolver, and that license was renewed in 2012. In 2009, the New Hampshire Department of Safety (DOS) issued the petitioner an armed security guard license.

Sometime prior to June 29, 2010, Sergeant Lobrano of DOS became aware of the 1998 conviction and determined that it disqualified the petitioner, under federal law, from possessing firearms. Accordingly, on June 29, 2010, Lobrano notified the petitioner that he was revoking the petitioner's armed security guard license. On the same day, Lobrano issued the petitioner an unarmed security guard license.

The petitioner appealed Lobrano's decision to a hearings examiner, who upheld it. The petitioner then appealed the hearings examiner's decision to the superior court. On March 9, 2011, while the parties were awaiting decision on their cross-motions for summary judgment, DOS's attorney, respondent Casko, offered the petitioner the following settlement:

1. You will agree to the dismissal of your appeal of the hearings examiner's decision pending in the Hillsborough South Superior Court. To achieve such, I will file an Assented to Motion for Voluntary Nonsuit with Prejudice of the case.

2. In exchange, the Department of Safety will reissue your armed security guard license upon your signing and returning the agreement to me.

3. You agree to waive any claim for damages due to lost wages against the Department of Safety related to this matter.

4. The Department agrees not to use the conviction for Operating Under the Influence from Lowell District Court Docket # 9811CR1032A as a basis to revoke or deny such license in the future.

5. If you agree, please verify same by signing below.

The petitioner agreed to the terms of the offer (the 2011 settlement) and the case was non-suited.

In February or March 2013, the petitioner applied to the Federal Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) for a Curios and Relics License. By apparent agreement with the ATF, local police departments conduct background checks on federal license applicants. Accordingly, the Nashua Police Department conducted a background check on the petitioner in 2013 and, in doing so, learned of the 1998 conviction. Why the City had not discovered the 1998 conviction previously, despite having conducted at least two prior background checks on the petitioner, is not explained in the record.

Nashua Police Lieutenant Michael Moushegian, who reviewed the petitioner's federal application, determined that the 1998 conviction disqualified the petitioner from both the federal license for which he had applied and his state license to carry. Moushegian advised the police chief that he should not only recommend that the ATF deny the petitioner his federal Curio and Relics license, but that he should also revoke his state license to carry. On March 28, 2013, Nashua Police Chief John Seusing revoked the petitioner's license to carry. The petitioner appealed the revocation to the circuit court, and, following that court's affirmance of Chief Seusing's decision, he appealed to this court.

In June 2013, the petitioner applied to renew his armed security guard license. New Hampshire State Police Sergeant Sean Haggerty notified the petitioner on July 8, 2013, that his application had been conditionally denied. The superior court found it implicit in Haggerty's decision that denial was based upon the 1998 conviction. The petitioner filed a motion in superior court to bring forward and enforce the 2011 settlement agreement. Following denial of his motion for preliminary injunctive relief, the petitioner appealed to this court.

On appeal, the petitioner argues that the trial courts erred in: (1) upholding Chief Seusing's revocation of his license to carry; (2) upholding the DOS's decision to rescind the 2011 settlement; (3) failing to find that the City was bound by the 2011 settlement; (4) misinterpreting 18 U.S.C. §§ 921(a)(20) et seq. ; (5) disregarding the findings and conclusions of the FLRB's decision restoring his right to possess firearms; and (6) failing to "give full faith and credit to the provisions of the public acts, records and judicial proceedings in Massachusetts."

We first consider the applicable standards for reviewing each of the trial court orders the petitioner appeals. RSA 159:6–b, I, provides, in pertinent part, that "[t]he issuing authority may order a license to carry a loaded pistol or revolver issued to any person pursuant to RSA 159:6 to be ... revoked for just cause." RSA 159:6–b, I (2014). We held in Bleiler v. Chief, Dover Police Dep't, 155 N.H. 693, 927 A.2d 1216 (2007), that " ‘just cause’ refers to a licensee's use of a weapon for an improper purpose or to the licensee's status as an unsuitable person."

Bleiler, 155 N.H. at 702, 927 A.2d 1216. That decision may be appealed to the circuit court pursuant to RSA 159:6–c. See RSA 159:6–c (2014); RSA 490–F:3 (Supp.2014) (providing, in part, that "[t]he circuit court shall have the jurisdiction, powers, and duties conferred upon the former ... district courts").

We have held, with respect to such an appeal, "that the statute contemplates that the [trial] court will hear evidence and make its own determination whether the petitioner is entitled to a license."

Silverstein v. Town of Alexandria, 150 N.H. 679, 681, 843 A.2d 963 (2004) (quotation and brackets omitted). In our review of the trial court's decision, we defer to the court's factual findings, provided there is evidence in the record to support them. Cf. Jacobs v. Director, N.H. Div. of Motor Vehicles, 149 N.H. 502, 503, 823 A.2d 752 (2003) (review of superior court decision on appeal from an administrative license suspension by the department of motor vehicles). We review the trial court's application of the law to the facts de novo. Cf. id. at 504, 823 A.2d 752.

"A preliminary injunction is a provisional remedy that preserves the status quo pending a final determination of the case on the merits." N.H. Dep't of Envtl. Servs. v. Mottolo, 155 N.H. 57, 63, 917 A.2d 1277 (2007). "[A] party seeking an injunction must show," among other things, "that it would likely succeed on the merits." Id. "[T]he granting of an injunction is a matter within the sound discretion of the Court exercised upon a consideration of all the circumstances of each case and controlled by established principles of equity." UniFirst Corp. v. City of Nashua, 130 N.H. 11, 14, 533 A.2d 372 (1987) (quotation and ellipsis omitted). "We will uphold the decision of the trial court with regard to the issuance of an injunction absent an error of law, [unsustainable exercise] of discretion, or clearly erroneous findings of fact." Id. ; State v. Lambert, 147 N.H. 295, 296, 787 A.2d 175 (2001) (explaining unsustainable exercise of discretion standard).

Both of the trial courts' decisions involved, in part, an interpretation of federal law governing firearms possession. In affirming Chief Seusing's revocation of the petitioner's license to carry, the trial court reasoned that the petitioner could not "be deemed suitable to possess a license to carry a pistol or revolver" because, "[u]nder applicable federal law, which New...