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16-P-1045                                         Appeals Court

      RICHARD PHIPPS   vs.   POLICE COMMISSIONER OF BOSTON.


                         No. 16-P-1045.

      Suffolk.      September 28, 2017. - January 30, 2019.

            Present:   Vuono, Agnes, & McDonough, JJ.


Firearms. License. Practice, Civil, Judicial review of license
     to carry firearms.



     Civil action commenced in the Supreme Judicial Court for
the county of Suffolk on July 29, 2014.

     After transfer to the Superior Court Department, motions
for judgment on the pleadings were heard by Mary K. Ames, J.


     James A. Reidy for the plaintiff.
     Katherine Sarmini Hoffman, Special Assistant Corporation
Counsel, for the defendant.


    McDONOUGH, J.   Concerned for his safety and the protection

of his property, the plaintiff, Richard Phipps, a victim of an

armed robbery at his small retail business, successfully applied

to the police commissioner (commissioner) of the city of Boston

(city) for a license to carry a firearm pursuant to G. L.
                                                                     2


c. 140, § 131.   However, the commissioner, through the city

police department's (department) licensing unit, restricted

Phipps's license to target practice and hunting only, uses not

germane to his activities or intended purposes.       At a meeting

with the commander of the department's licensing unit, Phipps

sought to persuade the commander to remove the restriction;

instead, based upon their conversation, the commander revoked

Phipps's license, deeming him no longer a suitable person to

possess a license.    A judge of the Dorchester Division of the

Boston Municipal Court Department (BMC) denied Phipps's request

for judicial review of the license revocation and restriction.

Phipps sought further review in the Superior Court where, on

cross motions for judgment on the pleadings, the revocation was

affirmed.   Because Phipps's license was restricted and then

revoked based upon a generalized, subjective determination of

unsuitability rather than specific, reliable information as

required by our case law, and because Phipps demonstrated a

proper purpose in seeking an unrestricted license, we reverse.

    Background.      1.   Facts.   We summarize the relevant facts

from the record as follows.        Phipps is a resident of Boston,

where he is part owner and operator of a small retail business

located at Dudley Square in the Roxbury section of Boston.

Phipps's duties at the store include closing the store at night
                                                                   3


and making cash deposits at a nearby bank.   Previously, while

closing his store one night, Phipps had been robbed at gunpoint.1

     In April, 2013, Phipps applied to the licensing unit of the

department for a license to carry a firearm.   His initial

contact at the police station in the Dorchester section of

Boston was Officer Angela Coleman of the firearms licensing

unit, who briefly interviewed him to ascertain whether he was

suitable to hold a firearms license.   Officer Coleman took

Phipps's handwritten application and created a new application

on her computer.   Despite Phipps telling Officer Coleman he

needed a license for protection, Officer Coleman, on her own,

typed in "sport and target" as Phipps's reason for requesting a

license.   In doing so, Officer Coleman explained to Phipps that

because the city was "not really giving out license[s] to

carry," the department issued most licenses with restrictions,

and that after he received his license, he could then apply to

the commander of the licensing unit to have the restriction




     1 In addition, Phipps's business partner, Wayne Atkinson,
had been a victim of two armed robberies while working at one of
the business's other locations. The department issued Atkinson
an unrestricted license to carry firearms. Because Atkinson was
robbed twice at their business, and because Phipps was "carrying
large sums of money," Atkinson advised Phipps that "it was a
very good idea for him to apply" for a license to carry a
firearm.
                                                                     4


removed.     Phipps accepted this explanation and signed the

application.2

     About five months later, Phipps received a Class A license

to carry a firearm.     The license was restricted to "target and

hunting."3    On September 30, acting on Officer Coleman's earlier

advice, Phipps wrote a letter to the commander of the licensing

unit, Lieutenant Detective John McDonough, requesting removal of

the target and hunting restriction.     In his letter, Phipps

explained he needed an unrestricted license because (1) he is a

business owner, (2) he regularly makes deposits of large sums of

money, (3) he frequently must visit high crime areas in Roxbury

and Dorchester, and (4) he had been the victim of crime in the

past in the vicinity of his business after closing the store.

By letter dated October 8, 2013, Detective McDonough denied

Phipps's request, stating without explanation that Phipps had




     2 At the BMC evidentiary hearing, Lieutenant Detective John
McDonough confirmed that this was department policy, except for
applicants who were either police officers or attorneys, who,
once approved as suitable, were issued unrestricted licenses.

     3 In his complaint and throughout the record, the
restriction on Phipps's license to carry is referred to as
"target and sport shooting," even though the wording on his
license is "target and hunting." The discrepancy is
insignificant. In any event, there is nothing in the record
suggesting that Phipps either engaged, or had an interest, in
hunting or target or sport shooting.
                                                                    5


not demonstrated a "proper purpose" for holding an unrestricted

license.

     According to the record of the BMC evidentiary hearing,

Phipps thereafter telephoned Detective McDonough and again

requested removal of the license restriction.    Detective

McDonough agreed to meet with Phipps at the police station so

that they could speak further and directed Phipps to bring his

license with him.    Later that day, Phipps met with Detective

McDonough in the latter's office at the police station in

Dorchester.   When Phipps arrived, Detective McDonough asked him

for his license.    Phipps handed it to McDonough, who put it in

his pocket.   Phipps began the meeting by telling Detective

McDonough that he had written to him on Officer Coleman's

recommendation as to how to remove the restriction on his

license.    Detective McDonough concluded that Phipps "was giving

[him] the impression" that "Officer Coleman had authorized him

to have an unrestricted license," that, in essence, he was "all

set," and that his letter to McDonough was "just a formality."

     Finding Phipps's story "very unusual" and seeking

clarification, Detective McDonough called Officer Coleman4 into

the room.   After Coleman joined them, Phipps claimed that


     4 The commissioner did not call Officer Coleman to testify
at the BMC hearing. There is nothing in the record as to what,
if anything, Coleman said after she joined the meeting.
                                                                     6


McDonough was "misunderstanding it," and that Officer Coleman

had only instructed him to write the letter.    McDonough then

accused Phipps of "chang[ing] his story."     Detective McDonough

then turned the conversation to Phipps's criminal court history.

Phipps had never been convicted of a crime.    Between 2005 and

2010 he was charged with various crimes, mostly nonviolent,

including violations for possession or possession with intent to

distribute a class D controlled substance, and various

automobile violations, each charge eventually dismissed.5

McDonough testified that Phipps "downplayed his record," quoting

Phipps as saying at the meeting:   "Oh, it's really not that bad.

It's only a little thing, minor.   It's all squashed [sic].    Not

-- it's all, you know, no convictions, no nothing.    It's not a

bad record."   With a printout of Phipps's history of dismissed

charges in front of him, Detective McDonough -- without showing

the printout to Phipps -- asked him his number of arraignments.




     5 A printout of Phipps's board of probation report, admitted
in evidence at the evidentiary hearing, revealed no convictions.
The report reflected that charges in 2007 and 2010 for
possession with intent to distribute a Class D controlled
substance were dismissed following continuances without a
finding; charges in 2005 and 2006 for simple possession or
possession with intent to distribute a Class D substance were
dismissed, as was a charge in 2006 for possession of a
controlled substance in a school zone. Also, in 2006 Phipps was
arraigned on charges of disturbing the peace, interfering with a
police officer, disorderly conduct, and resisting arrest. On
the latter charge, there was a disposition of no probable cause.
The remaining charges were dismissed without conditions.
                                                                   7


Phipps answered, "[F]our or five times."   After Detective

McDonough explained to Phipps the difference between an arrest

and an arraignment, Phipps claimed he had been arraigned "three

or four times."   Detective McDonough testified that Phipps had

been arraigned on twenty different charges.6

     Dissatisfied with Phipps's responses during their meeting,

Detective McDonough informed Phipps he was no longer a suitable

person to hold a firearms license.   McDonough concluded that

Phipps spoke inaccurately in their meeting by (1) leaving the

"impression" with McDonough that Officer Coleman had already

approved him for an unrestricted license and then "changing

[his] story" when Coleman joined the meeting, (2) "downplay[ing]

his [criminal] record", and (3) inaccurately reporting "his

criminal history."   The meeting ended with Detective McDonough

keeping Phipps's license.   Thereafter, Phipps received a letter

from the commissioner informing him that his license to carry a

firearm had been revoked based on a determination that he was an

unsuitable person.   As reasons therefor, the letter stated that

(1) Phipps "inaccurately said [to Detective McDonough] that

[Officer] Coleman had recommended that he receive an




     6 We discern from Phipps's board of probation report that
between May, 2005, and December, 2010, Phipps appeared in court
for arraignment eight times covering an aggregate of twenty
charges, all eventually dismissed.
                                                                   8


unrestricted [license to carry]," and in a meeting with both

McDonough and Coleman, Phipps "changed his account," stating

that "[Officer] Coleman had told him to write a letter to"

McDonough; (2) Phipps "inaccurately understated the number of

[his criminal] charges"; and (3) Phipps "again understated the

content" of his record.

     Pursuant to G. L. c. 140, § 131 (f), Phipps filed a

petition in the BMC for judicial review of both the

commissioner's decision to revoke his license and the imposition

of the target and hunting restriction.7   Following an evidentiary

hearing in which Phipps, his business partner Wayne Atkinson,8

and Detective McDonough testified, a judge denied Phipps's

petition without making any findings of fact or rulings of law.

Phipps then filed an action in the nature of certiorari pursuant

to G. L. c. 249, § 4, in the Supreme Judicial Court, which

transferred the action to the Superior Court.   On cross motions




     7 As then in effect, G. L. c. 140, § 131 (f), did not
explicitly provide for judicial review of license restrictions.
Effective January 1, 2015, the right to appeal from license
restrictions was made explicit. See St. 2014, c. 284, § 51.
Unless otherwise noted, all references herein to G. L. c. 140,
§ 131, refer to the statute as in effect at the time of the
events in this case, i.e., 2013. See St. 1998, c. 180, § 41.
We do not suggest that our analysis or conclusions would be
different under the current language of the statute.

     8 Atkinson had accompanied Phipps to the meeting with
Detective McDonough.
                                                                       9


for judgment on the pleadings, a judge of the Superior Court

upheld the license revocation.9      This appeal followed.

     2.   Standard of review.   a.    License revocation.    "Any

applicant or holder aggrieved by a denial, revocation or

suspension of a license [to carry] . . . may . . . file a

petition to obtain judicial review in the district court having

jurisdiction in the city or town wherein the applicant filed

for, or was issued, such license."      G. L. c. 140, § 131 (f).      If

relief is denied in the District Court, the petitioner may then

file "an action in the nature of certiorari pursuant to G. L.

c. 249, § 4," in the Superior Court.      Frawley v. Police Comm'r

of Cambridge, 473 Mass. 716, 727 (2016), quoting Firearms

Records Bur. v. Simkin, 466 Mass. 168, 179-180 (2013).         "A

District Court judge may overturn a firearms licensing decision

as arbitrary or capricious where 'no reasonable ground' exists

to support the decision.   G. L. c. 140, § 131 (f)."        Simkin,

supra at 179.   "On certiorari review, the Superior Court's role

is to examine the record of the [BMC] and to correct substantial

errors of law apparent on the record adversely affecting

material rights" (quotation omitted).      Id. at 180.




     9 Having upheld the BMC judge's denial of Phipps's petition
for review of the commissioner's revocation of his license, the
Superior Court judge did not reach the issue of the target and
hunting restriction.
                                                                    10


    "Judicial review of the commissioner's decision [by this

court] proceeds under the same standard" as a review conducted

by the Superior Court.     Frawley, supra at 729.   "We stand in the

same position as the [Superior Court] judge below in making that

determination."   Id. at 729-730.   "The decision by a reviewing

court is a ruling of law that does not require findings of fact,

determinations of credibility, or the application of

administrative expertise."    Id. at 729.   "[A] reviewing court

simply must determine whether the commissioner, on the basis of

the evidence before him, abused his discretion in a manner that

adversely affected [Phipps's] material rights."     Id., citing

Simkin, supra at 179-180.

    b.   License restriction.    In determining whether to issue a

license with restrictions, G. L. c. 140, § 131, outlines a "two-

step inquiry" the licensing authority must undertake when

evaluating an applicant.    Ruggiero v. Police Comm'r of Boston,

18 Mass. App. Ct. 256, 259 (1984).    First, as discussed above,

the licensing authority must "ascertain whether the applicant is

a 'suitable person' to possess a firearm.     [If so,] the

licensing authority then must inquire whether the applicant

[has] a 'proper purpose' for carrying a firearm."     Id.    This

inclusion of a "proper purpose" requirement demonstrates the

Legislature's intention that the licensing authority have the

power to limit licenses to a specified purpose.     Id. at 260.
                                                                     11


"In performing its task, the licensing authority is given

considerable latitude."     Id. at 259.   See Chardin v. Police

Comm'r of Boston, 465 Mass. 314, 316 (2013), citing Ruggiero,

supra at 259 (licensing authority has "'considerable latitude'

or broad discretion in making a licensing decision").       A

reviewing court must determine, on the basis of the evidence,

whether limiting the license to a specified purpose "would . . .

make arbitrary, capricious or an abuse of discretion the

commissioner's decision to deny the plaintiff a license for

self-protection."     Ruggiero, supra at 261.

       3.   Statutory scheme.   "The historical aim of licensure

generally is preservation of public health, safety, and welfare

by extending the public trust only to those with proven

qualifications."     Leduc v. Commonwealth, 421 Mass. 433, 435

(1995), cert. denied, 519 U.S. 827 (1996).       Anyone wishing to

lawfully carry a firearm in Massachusetts must either obtain a

license to carry firearms pursuant to G. L. c. 140, § 131, or be

exempt from the licensing requirements.10       Chardin, 465 Mass. at

315.    A "[l]icensing authority," defined as "the chief of police

or the board or officer having control of the police in a city




       A person may also apply for a firearm identification
       10

card, which allows holders to own or possess a firearm, but only
within their residence or place of business. See G. L. c. 140,
§§ 129B, 129C.
                                                                     12


or town, or person authorized by them," G. L. c. 140, § 121, as

appearing in St. 1998, c. 180, § 8, issues the firearms license.

G. L. c. 140, § 131 (d).     The Class A license, at issue here,

authorizes the holder to possess and carry "firearms, including

large capacity firearms, and feeding devices and ammunition

therefor, for all lawful purposes, subject to such restrictions

relative to the possession, use or carrying of firearms as the

licensing authority deems proper."     G. L. c. 140, § 131 (a).

The licensing authority, in this case the commander of the

licensing unit, is vested with "'considerable latitude' or broad

discretion in making a licensing decision."      Chardin, supra at

316, quoting Ruggiero, 18 Mass. App. Ct. at 259.      If the

licensing authority determines that the holder is no longer a

suitable person to possess the license, it may be revoked or

suspended, provided that the revocation or suspension is in

writing and states the reasons therefor.     G. L. c. 140, § 131

(f).

       Discussion.   1.   Revocation of Phipps's license.   At the

time of Phipps's application, the firearms licensing statute did

not define "unsuitable" person.     See G. L. c. 140, § 131.11    Nor



       In 2014, the Legislature amended § 131 (d), providing,
       11

inter alia, criteria for finding an applicant unsuitable based
on

       "(i) reliable and credible information that the applicant
       or licensee has exhibited or engaged in behavior that
                                                                 13


was the term defined in any regulation promulgated by the

Executive Office of Public Safety and Security, see Simkin, 466

Mass. at 180, or by the Boston police department.12   Furthermore,

"the limits of unsuitability have not been clearly established

by our case law."   Id.   It is clear, however, that an individual

may be deemed unsuitable to possess a firearms license for

reasons other than the specifically enumerated disqualifiers set

out in G. L. c. 140, § 131 (d).13   Simkin, supra at 180.




     suggests that, if issued a license, the applicant or
     licensee may create a risk to public safety; or (ii)
     existing factors that suggest that, if issued a license,
     the applicant or licensee may create a risk to public
     safety."

G. L. c. 140, § 131 (d), as appearing in St. 2014, c. 284, § 48.

     12Specifically, when asked at the BMC hearing who within
the department "makes the determination of suitability for . . .
a license to carry a firearm," Detective McDonough answered, "I
do." He further conceded that he alone, as the police
commissioner's "designee, . . . deemed Phipps unsuitable."

     13"See DeLuca v. Chief of Police of Newton, 415 Mass. 155,
158-160 (1993) (finding of unsuitability based on criminal
convictions that were subject of governor's pardon); Howard v.
Chief of Police of Wakefield, 59 Mass. App. Ct. 901, 902 (2003)
(finding of unsuitability based on prior issuance of then-
expired abuse prevention orders); Godfrey v. Chief of Police of
Wellesley, [35 Mass. App. Ct. 42,] 47-48 [1993] (finding of
unsuitability based on license holder's refusal to cooperate
with prior police investigation); MacNutt v. Police Comm'r of
Boston, 30 Mass. App. Ct. 632, 635 (1991) (proper for licensing
authority to condition suitability determination on passing test
of firearm handling and firing proficiency) . . . . See also
Hightower v. Boston, 693 F.3d 61, 74-76 (1st Cir. 2012)
(rejecting challenge under Second Amendment to United States
Constitution to revocation of plaintiff's license on suitability
                                                                  14


    Phipps submits that the decision to revoke his license on

suitability grounds based on his conversation with Detective

McDonough was "completely arbitrary," because it was based on

Detective McDonough's "subjective belief" after a "10-15 minute

conversation" that Phipps was unsuitable, a belief at odds with

Detective McDonough's initial decision to issue Phipps the

license.   The commissioner counters that McDonough reasonably

exercised his discretion to deem Phipps unsuitable and revoke

his license because "[Phipps] inaccurately represented his prior

communications with Officer Coleman and characterized the

contents of his [r]ecord in a misleading manner."    Relying

principally on the decision of the United States Court of

Appeals for the First Circuit in Hightower v. Boston, 693 F.3d

61, 74-76 (1st Cir. 2012), the commissioner submits that

Detective McDonough properly revoked Phipps's license because he

"provided inaccurate information during the application process,

which is a valid consideration in the suitability

determination."   We are not persuaded.

    While the commissioner is correct that a license holder

need not violate the law or be statutorily disqualified to be

deemed unsuitable, the "discretion to make a suitability

determination is not without limits."     Simkin, 466 Mass. at 181.



grounds after she provided false information in license renewal
application)." Simkin, 466 Mass. at 180-181.
                                                                  15


"The goal of firearms control legislation in Massachusetts is to

limit access to deadly weapons by irresponsible persons."

Ruggiero, 18 Mass. App. Ct. at 258.    As previously noted, while

the statute as then in effect did not define "unsuitable"

person, cases addressing the term have generally upheld the

denial or revocation of licenses where a person has a documented

risk to public safety.14    In this way, G. L. c. 140, § 131,

achieves its purpose of "keep[ing] firearms out of the hands of

persons who are not categorically disqualified, e.g., convicted

felons, but who nevertheless pose a palpable risk that they

would not use a firearm responsibly if allowed to carry in

public."    Chief of Police of Worcester v. Holden, 470 Mass. 845,

854 (2015).    In fact, the statute passes muster under the United

States and Massachusetts Constitutions precisely because it

"bears a reasonable, as well as a real and substantial, relation

to public health and safety."    Id.

     Viewed as a whole, we conclude that Phipps's statements to

Detective McDonough did not provide a "reasonable ground" for

the revocation of his license.    The commissioner's stated

reasons for revoking Phipps's license -- Phipps's

mischaracterization to McDonough of his conversation with

Coleman about the process to seek removal of the target and




     14   See note 13, supra.
                                                                    16


hunting restriction on his license, and his failure to

accurately recite to McDonough the number of charges and the

arraignments from his court history -- are not reasonably

related to the statute's goal of keeping firearms out of the

hands of persons who could cause a risk to public safety.     Put

another way, even if Detective McDonough's testimony about his

meeting with Phipps is accurate, nothing in the record reveals

any reasonable nexus between what Phipps said in that meeting

and a risk to public safety.   While Detective McDonough may well

have found Phipps's account of his conversation with Officer

Coleman "[v]ery unusual," that is not a sufficient reason to

revoke his license.   See Simkin, 466 Mass. at 181-183 (license

holder's use of false name to check into medical appointment and

employees' fear and alarm upon learning he was carrying

concealed weapons, while "arguably unusual but otherwise

innocuous actions," held not sufficient grounds to revoke

license to carry).

    The same holds true for Phipps's understated opinion about

the seriousness of his court history, and his imperfect memory

of the number of times he had been arrested and arraigned, going

back a number of years.   We find it significant that in his BMC

testimony, Detective McDonough downplayed Phipps's inaccurate

answers to these questions.    Referring to the printout of

Phipps's history of dismissed charges, McDonough stated:      "In
                                                                  17


fairness to [Phipps], he had not seen it.   It was on my desk and

[Phipps] had not seen it in fairness to him."   Furthermore, in

his testimony, Detective McDonough acknowledged that there can

be a difference between the number of arrests, the number of

appearances for arraignment, and the number of charges.

     Phipps's personal opinion that the dismissed charges

against him were "minor" and that his record with no convictions

was "really not that bad" had no bearing on Detective

McDonough's ability to fully assess Phipps's history of

dismissed charges to determine whether he was suitable.      Even if

Phipps unduly downplayed his history, that falls short of a

"misrepresentation," which, "[i]n general, . . . must concern a

fact, and not an opinion or belief."15   Marram v. Kobrick

Offshore Fund, Ltd., 442 Mass. 43, 57 n.24 (2004).

     Phipps's history of dismissed charges -- which only months

earlier did not render him unsuitable -- cannot fairly be recast

by the department based on Phipps's personal opinions about that

history.   Neither Phipps's "inaccurate" account of his




     15At oral argument, counsel for the commissioner argued
that Phipps "lied" to the detective during the interview. We
discern no support in the record, either at the BMC hearing, or
elsewhere, that either the department or the commissioner ever
accused Phipps of making a false statement of material fact to
either Coleman or McDonough, or of failing to disclose material
information relevant to the questions of suitability and proper
purpose.
                                                                     18


conversation with Officer Coleman about the process for removing

the target and hunting license restriction, nor his failure to

accurately recite to McDonough the number of charges and

arraignments from his court history, created an increased risk

to public safety.    Nor did any of Phipps's responses constitute

the withholding of facts material to a licensing decision.

     The First Circuit's decision in Hightower v. Boston, supra,

upon which the commissioner principally relies, is not to the

contrary.   There, department policy required the plaintiff, a

Boston police officer, to fill out an additional form and attach

it to her application for renewal of her license to carry a

firearm.    Hightower, 693 F.3d at 68.   One of the questions on

that form asked whether she had any pending complaints or

charges against her.   She answered "no" when, according to the

department, there were in fact several findings regarding rules

violations pending against her arising out of an internal

affairs investigation of another officer.16     Once the licensing

authority discovered the undisclosed pending complaints, her

license was revoked.    Id. at 68-69.    The court concluded that


     16According to the court, the parties disputed whether the
"status of [the] matter" at the time Hightower filled out the
form "amounted to 'pending' 'complaints or charges' within the
meaning of the form." Hightower did not appeal from the
revocation. Nor did she ever contact the department to "inquire
as to whether she had in fact answered a question on the form
untruthfully." Hightower, 693 F.3d at 69.
                                                                    19


"the revocation of a firearms license on the basis of providing

false information as to the existence of pending complaints or

charges on the firearms license application form is not a

violation of the Second Amendment [to the United States

Constitution] in this case."   Id. at 74.    Thus, the court

concluded that the "particular ground for 'unsuitability' [was]

not subjective, and it [did] not confer too much discretion on

the licensing authority."   Id. at 76.    Detective McDonough, in

contrast, based his decision to revoke Phipps's license on his

own "impression" that Phipps was "changing [his] story" about

his conversation with Officer Coleman, and on McDonough's

perception that Phipps "downplayed"      his history of dismissed

charges -- both subjective determinations, unlike the

applicant's nondisclosure of material facts at issue in

Hightower.17   Phipps did not provide any inaccurate or false

information on his license application,18 and his entire criminal


     17The Hightower court concluded that inaccurately answering
"no" to a question about the existence of pending charges could,
"depending on the nature of the underlying [undisclosed]
complaints," materially impact suitability because "[a]n
accurate answer to the question is important to allowing the
licensing authority to investigate further and make an informed
decision on the licensing application." Hightower, 693 F.3d at
76.

     18The commissioner maintains that Phipps's inaccurate
answers about his history of dismissed charges are the
equivalent of providing false information in connection with a
license application. The licensing statute provides a criminal
penalty for anyone who gives false information concerning his
                                                                 20


court history was known to Officer Coleman and Detective

McDonough.

     2.   The target and hunting license restriction.   The

licensing authority must determine whether an applicant has

"valid reasons for being licensed," including "good reason to

fear injury to person or property."   Ruggiero, 18 Mass. App. Ct.

at 258-259.   Phipps asserts that the target and hunting

restriction placed on his license prior to its revocation

violates G. L. c. 140, § 131.   The commissioner responds that

the restriction is a proper exercise of the licensing

authority's discretion to issue restricted licenses, pursuant to

Detective McDonough's unwritten policy of issuing only

restricted licenses to every first-time applicant who is not

either a police officer or an attorney.19

     Detective McDonough testified that the department had no

written guidelines for use in determining whether an applicant




criminal record in an application for any form of firearm
license or permit, G. L. c. 140, § 129, and also criminalizes
knowingly filing a license application containing false
information, G. L. c. 140, § 131 (h). Without suggesting that
the commissioner's argument is precluded, we note that nothing
in the record indicates that Phipps was subsequently charged
with either of these offenses.

     19We find no language in the licensing statute that
supports the department's apparent practice of denying
unrestricted licenses to carry firearms to first-time applicants
who, like Phipps, are neither police officers nor attorneys.
                                                                   21


has demonstrated a "proper purpose" for carrying a firearm.20    In

determining whether to remove restrictions on a license,

Detective McDonough testified that he considers the following

factors:   whether the applicant is a member of law enforcement,

an attorney, or a business owner, whether the applicant can

demonstrate a reason to fear for his personal safety, and the

applicant's criminal history.   In response to Phipps's detailed

written request to Detective McDonough for removal of the target

and hunting restriction, in which Phipps explained that he was a

victim of crime and that his business required him to deposit

large sums of money on a regular basis, Detective McDonough

informed Phipps by letter that his request was "denied because

you could not show that you have a proper purpose to possess [an

unrestricted] license."   McDonough's denial letter made no

mention of Phipps's history of dismissed charges, nor did it set

forth any reasoning or explanation why he believed Phipps "could

not show [he had a] proper purpose."21   Here, even under


     20At the BMC hearing, when asked on cross-examination
whether the commissioner had provided him with any "regulations
or guidelines . . . for making a determination of what is a
proper purpose," Detective McDonough answered, "I don't think I
have any."

     21At the BMC hearing, McDonough agreed that his decision to
restrict Phipps's license to target and hunting was his "normal
course of procedure when processing licenses to carry,"
specifically, to restrict all first-time applicants' licenses to
target and hunting except for police officers or attorneys, who,
once approved as suitable, were issued unrestricted licenses.
                                                                  22


Detective McDonough's stated criteria for evaluating an

applicant's "proper purpose" in seeking an unrestricted license,

Phipps demonstrated a "proper purpose."   He was a business owner

who requested an unrestricted license to carry a firearm to

protect himself and his property, in particular when closing his

store at night and when carrying large amounts of cash to the

bank, having already been a victim of robbery at gunpoint under

that very circumstance.   Thus, Phipps demonstrated a proper

purpose for the issuance of an unrestricted license to carry a

firearm.   Contrast Ruggiero, 18 Mass. App. Ct. at 261.

    Conclusion.    Because Phipps has demonstrated by substantial

evidence his need to protect himself and his retail business,

and because the department failed to show that it restricted and

revoked his license to carry a firearm for objective reasons

related to public safety, the department was without reasonable

grounds to conclude he was an unsuitable person to possess a

firearm for any lawful purpose.   The actions of the commissioner



In explaining the license restriction at the hearing, McDonough
did cite Phipps's "criminal history" but without elaborating on
any aspect of it. Phipps had applied for and been denied a
license to carry in 2009 (by an officer other than McDonough),
which McDonough testified was due to his "criminal history." In
referring to Phipps's "criminal history" after the 2009 denial -
- which, as noted, involved no convictions -- McDonough
testified that "it wasn't substantial." Phipps's record showed
three arraignments after 2009, all occurring in December, 2010.
Two were for nonmoving motor vehicle violations; the third was
for possession with intent to distribute a Class D substance,
which was continued without a finding and then dismissed.
                                                                  23


challenged here were arbitrary and capricious, in that the

reasons given for the revocation and restriction of Phipps's

license to carry a firearm bear no reasonable nexus to public

safety.    The exercise of administrative discretion, no less than

judicial discretion, must be limited to a consideration of "the

factors relevant to the decision."    L.L. v. Commonwealth, 470

Mass. 169, 185 n.27 (2014).    Nothing we have said in this

opinion should be read as diminishing in any way the broad

discretion that the licensing authority has to determine whether

an applicant for a firearms license is a suitable person and, if

so, what restrictions, if any, should be imposed on such a

license.

    The judgment is reversed, and a new judgment shall enter in

the Superior Court reinstating Phipps's license to carry a

firearm, without restriction, for any lawful purpose.

                                     So ordered.
