Lambert v. Police Chief Haverhill

• Decision Date: 24 February 2022
• Docket Number: 21-P-629
• Citation: 182 N.E.3d 347 (Table),100 Mass.App.Ct. 1126
• Parties: Craig LAMBERT v. POLICE CHIEF OF HAVERHILL & another.
• Court: Appeals Court of Massachusetts

100 Mass.App.Ct. 1126

182 N.E.3d 347 (Table)

Craig LAMBERT

v.POLICE CHIEF OF HAVERHILL & another.¹

21-P-629

Appeals Court of Massachusetts.

Entered: February 24, 2022.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Craig Lambert, a retired Haverhill police officer, applied for a Law Enforcement Officer Safety Act identification card (LEOSA card), which would allow him to carry firearms across State lines. See 18 U.S.C. § 926C. The request was denied by the police chief, and Lambert filed a complaint in the Superior Court in the nature of certiorari pursuant to G. L. c. 249, § 4.³ On cross motions for judgment on the pleadings pursuant to Mass. R. Civ. P. 12 (c), 365 Mass. 754 (1974), the judge denied Lambert's motion and allowed the defendants’ motion. This appeal followed. We affirm.

Background. In 1994, Lambert was hired as a police officer in the city of Haverhill. In May 2012, Lambert's former girlfriend, J.S., came to the police station to file a complaint about Lambert due to his conduct after their break-up. J.S. wanted a police officer to tell Lambert to stay away from her but did not want to file a formal complaint. The deputy police chief met with Lambert and so advised him. On June 26, 2012, J.S. returned to the police station to file a formal complaint against Lambert because she discovered that he had posted a derogatory blog about her on the Internet. Captain Alan Ratte was assigned to investigate this complaint.

Ratte notified Lambert in writing about the investigation; he ordered Lambert to have no contact with J.S., directly or indirectly, and ordered him to appear for an interview on July 5, 2012. Ratte advised Lambert that any violation of the order could result in disciplinary action. Lambert appeared at the interview with an attorney and agreed that he would avoid J.S., and that he would report any incidental contact to Ratte.

On July 17, 2012, Ratte received an e-mail from J.S. reporting that Lambert had just driven past her in his police cruiser, and waved to her. When Ratte interviewed Lambert about this incident in the presence of his attorney, Lambert admitted that he waved to J.S., and said that it would not happen again. Ratte submitted his report to the police chief. Ratte concluded that Lambert violated two department rules as set forth in the code of conduct for the Haverhill Police Department.⁴

The police chief adopted Ratte's findings and reasoning. On August 22, 2012, the police chief issued a notice of violation and disciplinary action (notice) to Lambert that included a five-day suspension to be served on August 22, 23, 26, 27, and 28, 2012. The notice also contained a recommendation that Lambert be suspended for an additional fifty-five days by the mayor.⁵ Lambert, through counsel, appealed, and requested that the previously scheduled hearing be rescheduled due to counsel's unavailability. The hearing was rescheduled, but the parties agree the hearing never took place.

Lambert went out sick as a result of a work-related injury on August 21, 2012, the day before the police chief issued the notice of suspension. In connection with this leave, Lambert prevailed on his complaint filed in the Superior Court that challenged the requirement that he use sick time during his absence. See Lambert vs. Denaro, Mass. Sup. Ct., No. 1377CV00351 (Essex County November 26, 2013). Lambert's absence was retroactively characterized as injured duty leave pursuant to G. L. c. 41, § 111F (111F leave). In addition, Lambert's sick time was restored, and he was paid for the five days that the police chief had not paid him.⁶ Lambert remained on 111F leave until his retirement on March 22, 2014.

In January 2017, Lambert requested a LEOSA card. The police chief denied the request, concluding that Lambert was not qualified to receive a LEOSA card because "he left employment under a disability prior to the completion of an Internal Affairs investigation, which could have potentially resulted in discipline up to and including termination."

Discussion. The Law Enforcement Officer Safety Act provides that a "qualified retired law enforcement officer," possessing particular identification issued by the officer's former law enforcement agency, may "carry a concealed firearm that has been shipped or transported in interstate or foreign commerce," subject to certain restrictions. 18 U.S.C. § 926C(a). See Frawley v. Police Commiss'r of Cambridge, 473 Mass. 716, 717-718 (2016). In Massachusetts, "[t]he chief law enforcement officer for a law enforcement agency shall issue an identification card to a qualified retired law enforcement officer, who retired from that law enforcement agency." Id. at 718, quoting 501 Code Mass. Regs. § 13.03 (2008). "A ‘qualified retired law enforcement officer’ is an individual who, among other things, ‘retired in good standing from service with a law enforcement agency as a law enforcement officer, other than for reasons of mental instability.’ ... The regulations do not define what it means to have retired ‘in good standing.’ " Frawley, supra at 718, quoting 501 Code Mass. Regs. § 13.02 (2008). As a result, local regulations and policies may provide the definition. See Frawley, supra at 731-732. Here, the department's policy defined "[s]eparated in good standing" to require "that such officer was not charged with or suspected of criminal activity at the time of retirement, nor was he or she under investigation or facing disciplinary action for an ethical violation of departmental rules, or for any act of dishonesty."

In reviewing the denial of Lambert's request for a LEOSA card, we "examine whether the [police...