Firearms Records Bureau v. Simkin

• Decision Date: 08 August 2013
• Docket Number: SJC–11295.
• Citation: 466 Mass. 168,993 N.E.2d 672
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: FIREARMS RECORDS BUREAU v. Jay E. SIMKIN & others.

466 Mass. 168

993 N.E.2d 672

FIREARMS RECORDS BUREAU

v.Jay E. SIMKIN & others.¹

SJC–11295.

Supreme Judicial Court of Massachusetts, Suffolk.

Submitted April 4, 2013.

Decided Aug. 8, 2013.

Penny Dean for Jay E. Simkin.

David R. Marks, Assistant Attorney General, for the plaintiff.

Karen L. MacNutt & J. Steven Foley, for Commonwealth Second Amendment, Inc., amicus curiae, submitted a brief.

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

CORDY, J.

Jay E. Simkin, a New Hampshire resident, held a temporary nonresident Class A unrestricted license to carry firearms in Massachusetts (license). Following an incident that occurred on November 6, 2009, the firearms records bureau ²bureau) revoked Simkin's license, deeming him no longer a “suitable person” to possess it. A judge in the District Court ordered that Simkin's license be reinstated. The bureau appealed the decision to the Superior Court, where a judge ruled in favor of the bureau and vacated the order of the District Court. We granted Simkin's application for direct appellate review to consider whether the “suitable person” requirement set forth in G.L. c. 140, § 131, applies to temporary nonresident licenses issued pursuant to G.L. c. 140, § 131F. Although we conclude that it does, we also conclude that in the absence of regulations further defining unsuitability, no reasonable ground existed to revoke Simkin's license. Accordingly, we reverse the judgment of the Superior Court.³

1. Background. We summarize the relevant facts as found by the District Court judge, supplemented where necessary by

undisputed facts in the record. Simkin is a New Hampshire resident and a federally licensed firearms dealer who is engaged in the “buying and selling [of] firearms in the region, from private parties, at gun shows, and at auctions.” Since 2002, he has held a temporary nonresident Class A unrestricted license to carry firearms in Massachusetts. In February, 2009, Simkin applied to the bureau for a renewal of his license, stating as his purpose for requesting the renewal that he traveled in and through Massachusetts for business purposes, carrying firearms, ammunition, and cash, and carried concealed firearms for personal protection. The bureau renewed his license.

On November 6, 2009, Simkin traveled to Stoneham for a medical appointment. At the medical office, and in order to protect his privacy, Simkin used a pseudonym (“Horace Jones”) and registered under a Maryland address. He also declined to provide a telephone number, and, at the conclusion of the medical examination, paid the $1,500 bill in cash. Prior to disrobing in the examination room, Simkin informed the medical assistant that he was armed and proceeded to secure his weapons (two firearms, ammunition, and four knives) in a locked briefcase for the duration of the examination. Employees of the medical office were “alarmed” and “concerned for their safety” based on Simkin's conduct, and one of the employees contacted Stoneham police much later that day to report their concerns.⁴

Stoneham police Detective Robert McKinnon contacted law enforcement officials in Maryland, who gave him the name of an individual who lived at the address in Maryland that Simkin had provided to the medical office. McKinnon made a telephone call to the individual at the address and explained that he wanted to speak to “Horace Jones.” The individual asked why McKinnon was looking for “Jones,” and after McKinnon told him, the individual explained that “Horace Jones” was a pseudonym used by a friend to protect his identity, that “Jones” lived in Nashua, New Hampshire, and that he would have “Jones” contact McKinnon. McKinnon then received a telephone call from an attorney, Marvin Greenberg, from Woburn. McKinnon informed Greenberg that he needed the true name of “Horace Jones” and documentation of his license to carry firearms in Massachusetts. In response, Simkin sent an electronic mail message to McKinnon in which he gave his real name, explained that he used a pseudonym at the medical office in order to protect his privacy, and indicated that he was licensed to carry concealed firearms. He attached to the message copies of his Massachusetts license and his Federal firearms license, as well as copies of receipts for payment for the medical services. McKinnon confirmed receipt and thanked Simkin for his cooperation.

McKinnon reported the incident to the bureau. By letter dated November 13, 2009, bureau director Jason A. Guida informed Simkin that his license was thereby revoked because, on the basis of the information provided to him by McKinnon and the manager of the medical office regarding the incident on November 6, Guida determined that Simkin was no longer a “suitable person” to possess a firearm in Massachusetts.⁵ Specifically, Guida made this determination on the basis that (1) Simkin's visit to the medical office while “heavily armed” fell outside the “business activity” of buying and selling firearms that Simkin indicated on his license application as the reason he sought the license; (2) Simkin caused “fear and alarm” at the medical office; and (3) Simkin used a false name in order to conceal his identity.

Simkin filed a petition for judicial review in the District Court seeking various forms of relief, including an order vacating the revocation of his license. The parties then filed cross motions for summary judgment. A judge found in favor of Simkin and ordered that his license be reinstated. She concluded that “suitability” was not an appropriate ground for license revocation because it is not one of the five disqualifying factors set forth in G.L. c. 140, § 131F,⁶ which governs temporary nonresident licenses to carry firearms. Further, the judge reasoned that even if suitability were an appropriate ground for revocation, there was no reasonable ground for the bureau to have found Simkin unsuitable arising from his visit to the medical office. First, because Simkin's license was unrestricted, he was entitled to carry firearms “for all lawful purposes,” G.L. c. 140, § 131 ( a ), including personal protection. Second, there was no support for the bureau's contention that Simkin did anything to cause fear and alarm at the medical office apart from the fact that he was carrying concealed weapons, something that he was lawfully entitled to do. Third, although Simkin used a pseudonym while receiving medical treatment in order to protect his privacy, there was no suggestion that Simkin was committing a crime or perpetrating a fraud.

The bureau filed an action in the nature of certiorari, pursuant to G.L. c. 249, § 4, in the Superior Court, seeking review of the District Court judge's decision. The parties filed cross motions for judgment on the pleadings. A judge in the Superior Court allowed the bureau's motion, denied Simkin's motion, and vacated the order of the District Court reinstating Simkin's license. The judge concluded that the “suitable person” requirement set forth in G.L. c. 140, § 131, is applicable to temporary nonresident licenses issued pursuant to G.L. c. 140, § 131F. Further, she concluded that “reasonable grounds” existed for the bureau to determine that Simkin was not a “suitable person” based on his “unusual” behavior at the medical office, which caused the staff to be “concern[ed] for their safety,” as well as “the disconnect between [Simkin's] business-related licensure and his possible need to protect himself with two guns, four knives, and several magazines of spare ammunition inside a physician's office.” ⁷ We now address both issues.

2. Discussion. a. Applicability of “suitability” requirement to temporary nonresident licenses.General Laws c. 140, § 131 (§ 131), provides, in relevant part:

“ All licenses to carry firearms shall be designated Class A or Class B, and the issuance and possession of any such license shall be subject to the following conditions and restrictions:

“....

“( f) A license issued under this section shall be revoked or suspended by the licensing authority, or his designee, upon the occurrence of any event that would have disqualified the holder from being issued such license or from having such license renewed.⁸A license may be revoked or suspended by the licensing authority if it appears that theholder is no longer a suitable person to possess such a license.” (Emphases added.)

In turn, G.L. c. 140, § 131F (§ 131F), provides, in relevant part:

“A Class A or Class B temporary license to carry firearms ... may be issued by the colonel of the state police, or persons authorized by him, to a nonresident ... subject to such terms and conditions as said colonel may deem proper; provided, however, that no license shall be issued to a person [falling into any one of five enumerated disqualifying categories not applicable here].⁹

“....

“Such license shall be valid for a period of one year but the colonel may renew such license, if in his discretion, such renewal is necessary.

“....

“The fee for an application for the license shall be [one hundred dollars], which shall be payable to the licensing authority and shall not be prorated or refunded in case of revocation or denial.”

Simkin contends that his license is governed solely by § 131F, which, in his view, is a wholly self-contained statute governing temporary nonresident licenses to carry firearms. If this were true, Simkin's license could not be revoked on the basis of suitability, because although § 131F sets forth five specific disqualifiers, see G.L. c. 140, § 131F ( i )-( v ), nowhere does it feature the “suitable person” requirement found in § 131 ( f ). The bureau counters that § 131 establishes a comprehensive licensing scheme applicable to all licenses to carry firearms in Massachusetts, with § 131F providing supplementary rules for temporary nonresident licenses. The suitability requirement set forth in § 131 ( f ) would therefore apply to temporary nonresident licenses such as...