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18-P-363                                               Appeals Court

     JAKE NICHOLS      vs.   CHIEF OF POLICE OF NATICK & others.1


                              No. 18-P-363.

         Middlesex.      October 9, 2018. - January 30, 2019.

            Present:    Meade, Sullivan, & McDonough, JJ.


Firearms. License. Practice, Civil, Judicial review of license
     to carry firearms, Action in the nature of certiorari.


     Civil action commenced in the Superior Court Department on
October 11, 2016.

     The case was heard by Salim Rodriguez Tabit, J., on motions
for judgment on the pleadings.


     David A. DeLuca for chief of police of Natick.
     Jason A. Guida for the plaintiff.
     Eric R. Atstupenas, for Massachusetts Chiefs of Police
Association, Inc., amicus curiae, submitted a brief.
     Neil S. Tassel, for Commonwealth Second Amendment, amicus
curiae, submitted a brief.


     SULLIVAN, J.      Jake Nichols applied to the Natick police

department for a Class A (large capacity) license to carry




     1 The Justices of the Natick Division of the District Court
Department.
                                                                   2


firearms (LTC) in October of 2015.   At the time of his

application, Nichols had a fifteen-year history of prescription

drug abuse, an addiction that had been facilitated in part by

his position as a licensed pharmacist.   He had been in recovery

for five years, was reemployed, and his pharmacy license had

been reinstated, although he remained on probation with the

Board of Registration in Pharmacy.   Natick police Chief James

Hicks (chief) found Nichols to be an "unsuitable" person, see

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

and denied the application for a license to carry.

    On review of that decision, see G. L. c. 140, § 131 (f), as

appearing in St. 2014, c. 284, § 51, a judge of the District

Court held an evidentiary hearing, made factual findings, and

concluded that the chief's denial of the LTC was not arbitrary,

capricious, or an abuse of discretion.   On certiorari review,

see G. L. c. 249, § 4; Chardin v. Police Comm'r of Boston, 465

Mass. 314, 317, cert. denied sub nom. Chardin v. Davis, 134

S. Ct. 535 (2013), a judge of the Superior Court reversed the

decision of the District Court, vacated the denial of the LTC

application, and remanded the matter to the chief for a new

determination of eligibility.   We conclude that the Superior
                                                                     3


Court decision exceeded the bounds of permissible certiorari

review, and reverse.2

     Background.   We summarize the facts as found by the

District Court judge, supplementing the findings with facts she

implicitly credited and which are consistent with her opinion.

Nichols, age thirty-nine at the time of his application, is in

recovery from a long-standing drug addiction.    He began using

Ritalin and other drugs in pharmacy school at age nineteen.

After graduating with a doctorate degree in pharmacy, he

married, had children, and worked as a pharmacist for several

pharmacies and health care providers.   During this time, Nichols

became addicted to Adderall, Ritalin, and Vicodin.     He was able

to hide his addiction from those close to him.   He also denied

he had a drug abuse problem, even to himself.

     Although Nichols had some periods when he was able to

remain drug free, he relapsed, and his drug use worsened.

Nichols was terminated from several pharmacy jobs, and in 2009

began working at Oncomed, a Waltham oncology center.    At

Oncomed, Nichols uttered false prescriptions using the names of

unsuspecting doctors, falsified prescription slips on the

computer, and diverted drugs to himself.   His behavior came




     2 We acknowledge the amicus briefs of Commonwealth Second
Amendment and the Massachusetts Chiefs of Police Association,
Inc.
                                                                   4


under scrutiny in 2010, and Nichols was fired.   He voluntarily

entered an inpatient drug treatment program and surrendered his

pharmacy license.   The United States Drug Enforcement

Administration, the State Police, and the Waltham police

conducted a joint investigation of offenses involving Class B,

C, and E drugs, resulting in 468 criminal charges of identity

fraud, uttering false prescriptions, false health care claims,

obtaining drugs by fraud, and using a false registration number,

in the Framingham, Natick, and Waltham Divisions of the District

Court Department.

    Nichols admitted to sufficient facts to warrant a finding

of guilt on eighteen charges, which were continued without a

finding.   He remained on supervised probation until December,

2011, on three of the charges, and until July 25, 2014, on the

remaining charges; he successfully completed probation, and the

pending cases were dismissed.   The Commonwealth filed a nolle

prosequi on the remaining charges.   The Board of Registration in

Pharmacy suspended Nichols's license as part of a voluntary

agreement in which Nichols agreed to participate in a treatment

program geared to health care professionals.

    Nichols participated in and completed the treatment

program, and his license was conditionally reinstated subject to

a four-year probationary period beginning in 2015.   He remains

in counselling, and he mentors addicts and parents of addicts in
                                                                     5


group sessions.   His application for a LTC had the support of

his treating substance abuse specialist.

     Nichols applied to the chief for an unrestricted Class A

LTC on October 29, 2015, for the purposes of recreational

shooting and ultimately becoming a firearms instructor.3

Detective Edward Arena conducted an investigation at the chief's

request and, upon its completion, met with the chief to review

the results.   Detective Arena agreed with the chief's

determination that Nichols was not a suitable applicant at the

time; Arena was concerned about the length of Nichols's

addiction, the relatively short amount of time since he had

completed court-ordered probation, and Nichols's previous




     3 Nichols enjoyed   shooting at a target range. At the
District Court hearing   he acknowledged that his ability to shoot
at a target range with   a gun supplied by the range was not
affected by the denial   of the license.

     A Class A license "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). In the absence of a restriction, G. L.
c. 140, § 131 (a), does not prohibit the possession or carrying
of a concealed firearm in public. See Hightower v. Boston, 693
F.3d 61, 66 (1st Cir. 2012). Contrast G. L. c. 140, § 131 (b)
(precluding holder of Class B license from possessing or
carrying loaded firearm 'in a concealed manner in any public way
or place')." Chardin, 465 Mass. at 316. See St. 1998, c. 180,
§ 41.
                                                                  6


relapses.4

     By letter dated February 8, 2016, the chief denied

Nichols's application on the basis of Nichols's "468 offenses

. . . related to Identity Fraud, Violation of Controlled

Substances, Uttering False Prescriptions, False Health Care

Claims, Obtaining Drugs by Fraud and Using False Registration

Number . . . documented from November 2007 until June 2010."

     At the hearing in the District Court, the chief agreed that

he found Nichols to be unsuitable "at this time" based "largely

on [Nichols's] record and appearances in [c]ourt," and Nichols's

admission to sufficient facts with respect to charges of fraud

in his role as a pharmacist.   Like Detective Arena, the chief

also noted that Nichols's supervised probation had ended only a

year before his application, that Nichols remained on probation

with respect to his pharmacist's license, and that Nichols

remained in treatment for his addiction.   The chief also stated,

"[I]n almost all cases, there's no cure, . . . it's a constant

battle . . . is what I hear from some counselors on substance

abuse. . . .   [M]y concern is, the mix of firearms and substance


     4 Detective Arena testified at the hearing that it was his
"opinion [that] someone so close to the drug addiction applying
for a firearms license, it's -- they're too close together in
time frame and I'm -- I'm worried about a relapse or any kind
[of] re-association with his past." Detective Arena also noted
that Nichols did not stop using drugs until he was "confronted
. . . by authorities," and that there had been lapses in
Nichols's prior attempts at sobriety.
                                                                    7


and drugs and how it relates to the possession and ownership of

firearms and the risk that has for the public."

    The District Court judge heard the testimony of both

officials and reviewed the documentary record.    She found that

the chief had made a complete and thorough investigation and had

denied the license because of the risks associated with

addiction, the fraudulent nature of the charged offenses, the

public safety risk associated with "the mix of firearms and

substance abuse," "and the short period of time that has

[e]lapsed from the time of the charges/addiction to today."

Additionally, the judge credited Detective Arena's testimony

that the decision was based on "concern about a relapse."     The

judge treated the chief's denial as an interim decision, not a

permanent one, finding that the chief had denied the license "at

this time."   She also stated that Nichols's "commitment to his

sobriety and to helping others learn about addiction is to be

commended, and I am confident that at some point in time he will

obtain a LTC."

    Nichols filed an action in the nature of certiorari in the

Superior Court.   G. L. c. 249, § 4.   On certiorari review, a

judge of the Superior Court concluded that the chief's denial of

the LTC was arbitrary and capricious because his testimony

demonstrated a categorical opposition to approving a LTC for a

recovering addict.   The judge found that "in the mind of the
                                                                      8


chief, addiction is a disqualifying status that can never be

abated, regardless of rehabilitation."     The judge also concluded

that the chief erred as a matter of law because there had been

no showing of violent conduct, and "violence is the

disqualifying individual characteristic under the suitability

standard."   This appeal followed.

    Standard of review.    Because the standard of review is

central to our decision in this case, we summarize the statutory

scheme and the reviewing court's standard of review in some

detail.

    "The licensing authority may deny [an] application . . .

if, in a reasonable exercise of discretion, the licensing

authority determines that the applicant . . . is unsuitable to

be issued . . . a license to carry."     G. L. c. 140, § 131 (d).5

"The 'suitable person' standard gives the licensing authority

. . . 'considerable latitude' or broad discretion in making a

licensing decision."   Chardin, 465 Mass. at 316, quoting

Ruggiero v. Police Comm'r of Boston, 18 Mass. App. Ct. 256, 259

(1984).   The licensing authority must consider whether an

applicant is suitable or unsuitable based on "(i) reliable and

credible information that the applicant or licensee has


    5  The licensing authority considers an applicant's
suitability only after first determining that the applicant is
not a "prohibited person" under G. L. c. 140, § 131 (d).
                                                                   9


exhibited or engaged in behavior that 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).6

    On review of a denial of a LTC, see G. L. c. 140,

§ 131 (f), a judge of the District Court, after an evidentiary

hearing, may find facts and direct the licensing authority to

issue a license if the judge finds that the licensing authority

had "no reasonable ground" for denying the license.   Id.7   See

Chardin, supra at 317, citing Godfrey v. Chief of Police of

Wellesley, 35 Mass. App. Ct. 42, 44–45 (1993).   A conclusion

that the licensing authority lacked any reasonable ground to

deny the license "is warranted only upon a showing by the


    6  If the applicant is deemed suitable, the licensing
authority will determine whether the applicant has a "proper
purpose" in seeking a license to carry, see Ruggiero, 18 Mass.
App. Ct. at 259; that is, "good reason to fear injury to the
applicant or the applicant's property or for any other reason,
including the carrying of firearms for use in sport or target
practice only, subject to the restrictions expressed or
authorized under this section." G. L. c. 140, § 131 (d).

    7  "[A] District Court judge is not limited to review of an
administrative record established by the . . . licensing
authority." Chief of Police of Worcester v. Holden, 470 Mass.
845, 862 (2015). Instead, the District Court judge may consider
all "relevant evidence tending to show that [the applicant] is a
proper person to hold a license to carry a firearm, or that the
action of the licensing authority was arbitrary or capricious,
or an abuse of discretion." Id., citing Chief of Police of
Shelburne v. Moyer, 16 Mass. App. Ct. 543, 546 (1983).
                                                                    10


applicant that the licensing authority's 'refusal [to grant

. . . the license] was arbitrary, capricious, or an abuse of

discretion.'"    Godfrey, supra at 46, quoting Chief of Police of

Shelburne v. Moyer, 16 Mass. App. Ct. 543, 546 (1983).

       On certiorari review a Superior Court judge may "correct

only a substantial error of law, evidenced by the record, which

adversely affects a material right of the plaintiff."     Chardin,

465 Mass. at 321 n.15, quoting Massachusetts Bay Transp. Auth.

v. Auditor of the Commonwealth, 430 Mass. 783, 790 (2000).      See

G. L. c. 249, § 4.    An appellate court "stand[s] in the same

position as the judge below."    Frawley v. Police Comm'r of

Cambridge, 473 Mass. 716, 729–730 (2016).    "Judicial review

. . . proceeds under the same standard whether conducted by [the

appellate] court or . . . the Superior Court."    Id. at 729.

       Discussion.   In Chief of Police of Worcester v. Holden, 470

Mass. 845, 849 (2015), the Supreme Judicial Court considered

whether an applicant for a license to carry could be denied the

license on the basis of a five year old incident of domestic

abuse.    The court held that the five year old incident was not

stale, and that it was "within [the defendant's] grasp" to

engage in evaluation and treatment that would "alleviate [the

chief's] legitimate concerns" about his suitability.    Id. at

864.    Relying on Holden, Nichols maintains that a licensing

authority must consider an applicant's rehabilitation in
                                                                  11


determining suitability, and that past addiction may not serve

as a permanent disqualifier.    Nichols has characterized the

chief's disqualification determination as immutable, contending

that the chief "has been unyielding in his position that a

recovered drug addict should never be allowed to possess a

firearm."

    Nichols is correct that in the absence of a conviction of

the offenses charged, the statute does not mandate that he be

permanently barred from receiving a LTC.    See G. L. c. 140,

§ 131 (d) (i) (defining a "prohibited person" to include, among

other things, a person who has been convicted of a violation of

G. L. c. 94C).    And, as Holden indicates, the licensing

authority must take into consideration efforts at

rehabilitation.   The chief does not quarrel with either

proposition of law.    Rather, the chief contends that the

Superior Court judge exceeded the scope of certiorari review by

concluding that the chief denied Nichols's application on the

basis that addiction rendered a person permanently unsuitable.

    We agree that the Superior Court judge erred in making a

factual finding that the chief's decision was based on a belief

that "addiction is a disqualifying status that can never be

abated, regardless of rehabilitation."     The District Court judge

had already made a factual finding that "[the chief] believes

that at this time the petitioner is unsuitable because of this
                                                                       12


risk given the fraudulent nature of the charges, the extent of

the prior addiction, and the short period of time that has

[e]lapsed from the time of the charges/addiction to today."8

       The Superior Court judge's new factual finding to the

contrary exceeded the scope of certiorari review in two

interrelated respects.       On certiorari review the Superior Court

judge is limited to determining whether the District Court judge

has made a "substantial error of law, evidenced by the record,

which adversely affects a material right of the plaintiff"

(citation and quotation omitted).       Chardin, 465 Mass. at 321

n.15.      This determination must be made on the basis of the facts

as found by the District Court judge.       Certiorari review is

limited to making "a ruling of law that does not require

findings of fact, determinations of credibility, or the

application of administrative expertise."       Frawley, 473 Mass. at

729.       See Police Comm'r of Boston v. Robinson, 47 Mass. App. Ct.



       The chief's description of addiction as an ongoing
       8

struggle comports with the Nichols's own testimony at the
District Court hearing, as well as his character witness's
description. In contrast, Nichols now argues on appeal that he
was fully rehabilitated at the time he submitted his license
application and is no longer an addict. The chief's description
of relapse as part of the process of recovery (as opposed to a
state separate from addiction) was derived from his work with
substance abuse counsellors and is consistent with the Supreme
Judicial Court's recent treatment of recovery as an ongoing
process. See Commonwealth v. Eldred, 480 Mass. 90, 95 (2018)
("[An] individualized approach to probation fosters an
environment that enables and encourages recovery, while
recognizing that relapse is part of recovery").
                                                                    13


767, 770 (1999), quoting Johnson Prods., Inc. v. City Council of

Medford, 353 Mass. 540, 541 n.2, cert. denied, 392 U.S. 296

(1968).

    Although neither the chief nor the District Court judge

stated that they believe a recovering addict is permanently

unsuitable, neither described a preset duration of sobriety

Nichols must achieve, or any explicit conditions Nichols must

fulfill before he would become suitable for an LTC.     Nichols

contends, in essence, that by failing to set a clear time limit

on his present unsuitability, the District Court judge committed

a substantial error of law because the chief's decision was

arbitrary, capricious, and an abuse of discretion.    However,

licensing authorities are not required to provide denied

applicants a definitive time period in which a past act will no

longer render the applicant unsuitable.   See Holden, 470 Mass.

at 864 ("We are not prepared to determine, on this record, what

period of time must pass before the chief may no longer

consider" past incidents).   Rather, each applicant may be

considered individually in light of the extent of the

applicant's past and the nature of the applicant's recovery.

    Citing Holden, 470 Mass. at 856, the Superior Court judge

also relied on his view that "violence is the disqualifying

individual characteristic under the suitability standard."        This

observation misapprehends the statute, whose mandate is to
                                                                   14


determine whether an applicant for a LTC "may create a risk to

public safety."   G. L. c. 140, § 131 (d).

    "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.   The statute does not limit

its scope to those involved in violent crime.   For example, a

"prohibited person," as defined by G. L. c. 140, § 131 (d),

includes any person who has been convicted of a felony, a

misdemeanor punishable by more than two years of imprisonment, a

violent crime, a law regulating firearms where a term of

imprisonment may be imposed, a law regulating controlled

substances, or a misdemeanor crime of domestic violence as

defined under Federal law.   G. L. c. 140, § 131 (d) (i)-(ii).

The statute also severely limits (with exceptions not applicable

here) access to firearms for those who have been "committed to a

hospital or institution for mental illness, alcohol or substance

abuse."   G. L. c. 140, § 131 (d) (iii).   Further, it prohibits

issuing a LTC to anyone under the age of twenty-one, an "alien

who does not maintain lawful permanent residency," or anyone who

has received a dishonorable discharge from the United States

military, among others.   See G. L. c. 140, § 131 (d) (iv-x).

    In sum, whether the potential risk is due to youth,

illness, or certain types of past behavior, the Legislature has

drafted a statute intended "to prevent the temptation and the
                                                                  15


ability to use firearms to inflict harm, be it negligently or

intentionally, on another or on oneself."    Gould v. Morgan, 907

F.3d 659, 673 (1st. Cir. 2018), quoting Commonwealth v. Lee, 10

Mass. App. Ct. 518, 523 (1980).   The danger of negligent

discharge of a gun in the hands of a person under the influence

of amphetamines or opiates is evident.    The District Court judge

did not commit a substantial error of law when she accepted the

chief's determination that "the mix of firearms and substance

abuse is a public safety risk."

    Conclusion.     For the reasons stated, the judgment is

reversed, and a new judgment is to be entered in the Superior

Court affirming the denial of Nichols's application for a

license to carry.

                                    So ordered.
