Gun license could be denied based on family situation

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A police chief could deny a high-capacity firearm license to an applicant based on the allegedly volatile home environment created by the substance abuse, mental health issues and behavior of the applicant’s wife and son, the Appeals Court has decided in a 2-1 decision.

The plaintiff Southborough police chief determined that issuing a resident class A large-capacity license to defendant Paul Dwiggins, whose wife and son had more than 80 negative contacts with police over the previous 14 years, many for domestic violence incidents at Dwiggins’s house and for mental health crises involving his wife, could create a risk to public safety.

Accordingly, he denied the application under G.L.c. 140, §131, the state firearms license statute.

A Westborough District Court judge reversed the decision, acknowledging that the chief’s public safety concerns were valid but emphasizing that they did not reflect on conduct by the applicant himself.

The Superior Court affirmed the District Court ruling, but the Appeals Court subsequently reversed.

Specifically, the court found that the statute as written at the time of the chief’s decision empowered the chief to make the decision he made. The statute allowed a determination of unsuitability to be based on “existing factors that suggest that, if issued a license, the applicant or licensee may create a risk to public safety.”

“The chief’s conclusion of unsuitability is a determination that the applicant is unsuitable because of the serious risk of harm created by his bringing the firearm into and storing it at a volatile, violent, and dangerous place,” Judge Peter J. Rubin wrote for the panel. “We may disturb the chief’s determination that the applicant might create a risk to public safety only if it amounted to an abuse of discretion or was arbitrary and capricious. … We conclude that it was neither.”

Judge Kenneth V. Desmond Jr. dissented, pointing to what he described as “an insufficient showing that the applicant himself poses a risk to public safety.”

The 18-page decision is Chief of Police of Southborough v. Dwiggins, et al., Lawyers Weekly No. 11-020-25.

Uncertain future

Jason R. Talerman of Millis, who represented the chief, acknowledged that the Legislature amended the statute in 2022 to strike the language the Appeals Court relied on in supporting the chief’s denial two years earlier.

It’s hard to say what’s going to happen going forward. Even though the new statute does exclude certain components of the old statute, it still provides a fairly deferential standard for police chiefs.

While the change in the statute is important, Talerman said, the decision validates the hard work of police chiefs who are trying to keep guns from being a factor in volatile situations.

“It’s hard to say what’s going to happen going forward,” Talerman said. “Even though the new statute does exclude certain components of the old statute, it still provides a fairly deferential standard for police chiefs.”

If the same situation were to arise again, a police chief might have to do more factfinding, he said, though Dwiggins would not necessarily preclude a chief from acting in the same way.

Dwiggins’ attorney, Sydney C. Sheerin of Salem, did not respond to requests for comment.

But Woburn’s Jason A. Guida, who represents individuals in firearms licensing disputes, said the decision highlights the fundamental unfairness and lack of common sense prevalent in Massachusetts gun laws for the past 30 years.

“The fact that the decision came out the way it did is shocking,” he said. “And to see that there was at least one dissent on the panel really tells you how troubling the statute was.”

Meanwhile, Guida said he found it interesting that the litigants approached the issue based on statutory language rather than constitutional analysis since there seemed to be a viable “as-applied” challenge to the constitutionality of the statute in this situation.

In any event, he said he suspects the Legislature recognized a constitutional violation and that is why it narrowed it.

“I think it’s pretty clear this decision won’t survive the new statute,” Guida said.

Springfield gun rights lawyer Stephen F. Burke said he was not surprised by the ruling.

“This seems like a cause for the [American Civil Liberties Union] to champion,” he said. “After all, a citizen is being denied his constitutional right based on the whims of a police chief and nothing else.”

Donna M. Brewer, a municipal lawyer in Wellesley, emphasized that recent amendments to the statute did not remove the deference afforded to police chiefs’ decisions.

“In light of the Appeals Court’s confirmation that the chief’s decision is to be overturned only if his abuse of discretion is found to be arbitrary and capricious, one would hope that this decision will remind District Court judges that they are not to substitute their judgment for that of the licensing authority,” Brewer said.

Braintree attorney Karis L. North, who represents cities and towns, said it was notable that the Appeals Court referenced evidence that might also satisfy the first prong of the statute as written at the time. That prong focused on the applicant’s own behavior in allowing a chief’s unsuitability determination.

Here, North said, the Appeals Court pointed out that the applicant himself had been involved in physical confrontations with family members on several occasions.

“The court found that this was ‘reasonable ground’ and not arbitrary and capricious reasoning for the denial, even if not expressly stated in the police chief’s denial letter,” she said. “These are important public safety factors that help chiefs of police protect the community they serve when they make license-to-carry decisions.”

License denial

On Sept. 2, 2020, the Southborough police chief denied Dwiggins a license to carry a high-capacity firearm on grounds that he was “unsuitable.”

At the time, G.L.c. 141, §131(d)(i), stated that a determination of unsuitability shall be based on “reliable or credible information that the applicant or licensee has exhibited behavior” suggesting that, if issued a license, they might create a risk to public safety.

Meanwhile, Section 131(d)(ii) stated that such a determination could be based on “existing factors that suggest that, if issued a license, the applicant or licensee may create a risk to public safety.”

The evidence the chief relied on identified dozens of negative police contacts with Dwiggins’ son or wife over the previous 14 years.

One incident involved a confrontation between his wife and police at a roadside stop in which she allegedly told an officer, “If I had a gun right now, I would blow your head right off.”

Other reports involved police responses to incidents relating to both the son’s and wife’s use of alcohol and other substances. During one such incident, in which police were attempting to place the son in protective custody to transport him to the hospital for severe intoxication, he allegedly became physically aggressive enough with officers to require sedation.

In his denial notice, the chief informed Dwiggins that due to “[p]ersons residing in your household with histor[ies] of substance abuse, criminal behavior, and mental health issues, … I have found you to be unsuitable.”

Dwiggins petitioned for judicial review in Westborough District Court, where a judge reversed the chief’s determination, stating that while the household circumstances were chaotic and posed risk to first responders, those circumstances were not caused by the petitioner.

The chief appealed to Superior Court, which also found that the incidents relied on by the chief did not reflect on Dwiggins’ conduct and thus were not permissible criteria for a determination of unsuitability.

The chief brought further appeal.

Exercise of discretion

In reversing the lower courts, the Appeals Court emphasized that the case hinged on the meaning of G.L.c. 140, §131(d), at the time of the chief’s decision.

“In this case, the existing factors relevant to public safety aside from the applicant’s conduct include the past domestic violence in the household and the serious mental health issues presented by the applicant’s wife, who resides with him,” Rubin wrote.

The question before the chief was whether, given such factors, the applicant, if licensed, “may create a risk to public safety” by bringing a firearm into the residence, the panel noted.

“The chief was within his authority when he determined the applicant may create such a risk by bringing a firearm into the volatile, unstable, and violent environment of his residence, to which multiple police responses for domestic violence, substance use, and mental health have been required year after year after year,” Rubin said. “The ‘existing factor’ is not merely the conduct of the wife and son. It is the danger presented by the environment into which the applicant will bring the firearm.”