Rzeznik v. Chief of Police of Southampton

• Citation: 373 N.E.2d 1128,374 Mass. 475
• Decision Date: 24 February 1978
• Court: United States State Supreme Judicial Court of Massachusetts

Page 1128

373 N.E.2d 1128

374 Mass. 475

Alexander J. RZEZNIK v. CHIEF OF POLICE OF SOUTHAMPTON Supreme Judicial Court of Massachusetts, Hampshire.

Argued Nov. 10, 1977.

Decided Feb. 24, 1978.

Richard M. Howland, Amherst, for plaintiff.

Philip A. Beattie, Springfield, Lewis A. Whitney, Jr., East Hampton, with him, for defendant.

Before HENNESSEY, C. J., and BRAUCHER, WILKINS, LIACOS and ABRAMS, JJ.

HENNESSEY, Chief Justice.

The plaintiff, Alexander J. Rzeznik, a resident of Southampton, was convicted of two separate felonies in 1949 and in 1953. In 1974, the record of these convictions was sealed by the Commissioner of Probation pursuant to G.L. c. 276, § 100A. Subsequently, pursuant to G.L. c. 140, §§ 122, 122B, and 131, the plaintiff applied to the defendant chief of police of Southampton for licenses to carry and sell firearms and to sell ammunition. The defendant issued these licenses on December 10, 1974, but revoked them on October 14, 1975. Under G.L. c. 140, §§ 122, 122B, and 131, such licenses may not be issued to persons convicted of a felony.

The plaintiff brought an action in the Superior Court, Hampshire County, seeking a declaration that he was entitled to hold the various gun licenses, and that the defendant's actions violated the plaintiff's constitutional rights, including his right to freedom of speech. The plaintiff additionally sought damages for slander, damages for violation of his constitutional rights, and an injunction restraining the defendant from arresting or prosecuting him under G.L. c. 269, § 10, which provides criminal penalties for the unauthorized carrying of a weapon.

After a jury waived trial, the judge found for the defendant and made various rulings of law. The plaintiff then appealed, challenging: (1) the judge's conclusion that a sealed felony record may be considered by the police when issuing or revoking a gun license under G.L. c. 140, §§ 122, 122B, and 131; (2) the propriety of admitting the sealed felony record in evidence, when offered to establish the defense of truth to the plaintiff's allegations of slander; (3) the constitutionality of G.L. c. 140, §§ 122, 122B, and 131, with respect to its absolute disqualification of convicted felons from eligibility for gun licenses; and (4) the judge's conclusion with respect to the plaintiff's freedom of speech claim.

We conclude that the judge was correct in ruling that the plaintiff was not entitled to the licenses he seeks, nor was he entitled to damages for slander. We decide, however, that the judge erred in his rulings of law in dismissing that part of the plaintiff's complaint seeking damages under 42 U.S.C. § 1983 (1970) for alleged infringement of his constitutional right to freedom of speech. Therefore, we reverse.

The judge found the following facts. In June, 1973, the plaintiff petitioned the Governor of the Commonwealth for a pardon from the crimes of which he had been convicted. His stated reason for seeking a pardon was that he wanted "to purchase firearms for . . . (his) self protection and hunting." In reply to his petition, a clerk of the advisory board of pardons explained to the plaintiff that possibly he was entitled to have his record sealed pursuant to G.L. c. 276, § 100A. The clerk advised that this procedure was speedier than a pardon, and that, by virtue of having his record sealed, the plaintiff would be entitled to answer "No Record" to any questions regarding the prior convictions. The plaintiff completed an application requesting that his record be sealed, and, on November 27, 1974, was notified that his request had been granted.

Sometime thereafter, the plaintiff applied to the defendant for a license to carry firearms, a license to sell, rent, or lease various firearms, and a license to sell ammunition. Each application form contained a question asking whether the applicant had ever been convicted of a felony. To each of these questions, the plaintiff responded "No Record."

The defendant knew that the plaintiff had in fact been convicted of a felony, but he had also been advised that the record had been sealed. Accordingly, the defendant consulted the district attorney and the Commissioner of Probation to ascertain what effect the sealing of a record might have on pending firearms applications. On December 10, 1974, being unable to receive a firm answer, the defendant issued the plaintiff a license to carry firearms. On May 1, 1975, the defendant issued to the plaintiff licenses to sell, rent, or lease firearms and to sell ammunition. The defendant did not authorize the plaintiff to carry firearms merely for self-protection; the license to carry was limited to business purposes. Additionally, the defendant did not notify the Commissioner of Public Safety of the plaintiff's application, even though such notification is an express requirement of G.L. c. 140, §§ 122, 122B, and 131.

During the summer of 1975, difficulties developed between the plaintiff and the defendant. The defendant refused the plaintiff's request to amend his firearm carrying license to permit him to carry a firearm for self-protection; the plaintiff threatened to write to the Attorney General with regard to certain conflicts of interest with which the defendant was allegedly involved.

Also that summer, the defendant became aware of a memorandum issued by the Criminal History Systems Board regarding the effect of the sealed records statute. This memorandum advised that, since the sealed records statute was primarily directed toward employment situations, it would have no effect on such matters as applications for gun licenses. It concluded that "the criminal justice agency would be entitled to the information in the sealed record pursuant to such an application, since applying for a gun license is not applying for employment." The defendant took no steps to revoke the plaintiff's licenses in response to this memorandum.

On October 9, 1975, the plaintiff testified before a grand jury with regard to the defendant's alleged involvement in conflicts of interest. That evening, the defendant went to the plaintiff's home and demanded the gun licenses. Over protest, the plaintiff returned the license to carry, but refused to hand over the license to sell firearms or ammunition. The following day, the defendant notified the plaintiff that he intended to revoke the licenses remaining in the plaintiff's possession, and that a hearing would be held on October 14, 1975.

The hearing was held on the scheduled date. Those present were the defendant, the three selectmen of the town acting in their capacities as police commissioners, the plaintiff, and four individuals who attended at the request of the plaintiff or his attorney. The hearing was held in executive session. The defendant stated that he was revoking the licenses because he felt that he had made a mistake in issuing them. He stated that he had been in contact with the office of the Attorney General and was convinced that the plaintiff was ineligible to hold any of the licenses, despite the fact that his criminal records had been sealed. The plaintiff stated his disagreement with the defendant, but turned the licenses over to him.

1. The plaintiff does not dispute the fact that the gun licensing statutes, G.L. c. 140, §§ 122, 122B, and 131, clearly state that persons convicted of a felony may not obtain licenses to carry or to sell firearms or ammunition. ¹ Rather, the plaintiff questions the availability of his sealed criminal record for use in determining whether he was eligible for the licenses.

The plaintiff contends that because the sealed records statute, G.L. c. 276, § 100A, is rehabilitative in nature, it should be read to prohibit the use of sealed criminal offender information for any purposes other than those specifically enumerated in the statute. The plaintiff argues that, since G.L. c. 276, § 100A, does not specifically allow gun licensing authorities access to sealed criminal records, the use of this information by the chief of police in revoking the plaintiff's gun licenses was impermissible.

We agree with the plaintiff that the sealed records statute serves a useful rehabilitative purpose in providing a mechanism whereby the fact of a prior conviction is, in most instances, shielded from public view. ² On the basis of the statutory language and the legislative history of G.L. c. 276, § 100A, however, we are unable to agree that the sealed records statute must operate to preclude the use of criminal offender information by gun licensing authorities.

General Laws c. 276, § 100A, provides that the Commissioner of Probation, "in response to inquiries by authorized persons other than any law enforcement agency, any court, or any appointing authority, shall in the case of a sealed record . . . report that no record exists." ³ This provision must be read to imply that law enforcement agencies, courts, and appointing authorities do have access to criminal records which have been sealed.

Such a reading is consistent with legislative history, which reveals that even the broadest versions of the proposed sealed records statute did not, as the plaintiff suggests, purport completely to erase the fact of a prior criminal conviction; rather, each version contained provisions requiring the Commissioner to report the fact of a sealed felony conviction to any inquiring police or court agency. See 1971 House Doc. No. 588; 1971 House Doc. No. 5362. See also 1971 House Doc. No. 5719; 1971 House Journal 2227-2228. Thus, the legislative history of § 100A supports our conclusion that under the statute the defendant is clearly allowed access to and, by implication, use of information regarding a sealed criminal record.

Although the plaintiff urges us to hold otherwise, we further conclude that our reading of the sealed records statute is consistent with G.L. c. 6, §§ 167-178, the statutory scheme regulating the maintenance and dissemination of criminal...