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18-P-914                                               Appeals Court

   CHIEF OF POLICE OF TAUNTON & another1      vs.   PAUL N. CARAS &
                             others.2


                              No. 18-P-914.

           Bristol.       January 8, 2019. - April 19, 2019.

            Present:    Massing, Desmond, & McDonough, JJ.


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


     Civil action commenced in the Superior Court Department on
May 9, 2017.

     The case was heard by Gregg J. Pasquale, J., on motions for
judgment on the pleadings.


     Daniel F. de Abreu, Assistant City Solicitor, for the
plaintiffs.
     Paul W. Patten for Paul N. Caras.


     MASSING, J.      This appeal, which arises from the denial of

certiorari relief in the Superior Court, concerns whether the




     1   Taunton Police Captain Daniel P. McCabe.

     2 The Justices of the Taunton Division of the District Court
Department, as nominal parties.
                                                                     2


chief of the Taunton Police Department3 acted reasonably in

revoking Paul N. Caras's license to carry a firearm.    A District

Court judge determined that revoking Caras's license based on a

single incident was unreasonable.   Because the District Court

judge erroneously substituted his judgment for that of the

chief, we reverse the Superior Court judgment, which denied the

chief's certiorari petition, and direct the entry of a new

judgment enforcing the chief's revocation decision.

     Background.   The District Court judge found the following

facts, which we supplement with undisputed record evidence.

Caras held a license to carry a firearm since about 1967.     On

January 17, 2017, he was seventy-six years old and held a class

A license to carry a large capacity weapon issued pursuant to

G. L. c. 140, § 131.   On that day, Caras agreed to give his

adult grandson a ride to Providence, Rhode Island.     Caras was

carrying a Sig Saur Model 232 handgun in the unlocked glove

compartment of his car.   After picking up his grandson, Caras

made a brief stop, leaving the grandson alone in the car.     Caras

knew that his grandson suffered from a substance use disorder.




     3 The chief is the "[l]icensing authority" as defined by
G. L. c. 140, § 121, and Daniel P. McCabe was designated by the
chief to act as agent for the purpose of firearms licensing.
For convenience, we refer to the responsible police official as
the "chief."
                                                                   3


    Because of heavy traffic, Caras dropped off his grandson in

East Providence.   Soon thereafter, he realized that his handgun

was missing from the glove compartment.   He immediately

suspected that his grandson had stolen the gun, probably

intending to pawn it to purchase drugs.   Caras searched East

Providence for his grandson and, when he could not locate him,

reported the stolen gun to both the East Providence police and

the Taunton police.   Within a matter of hours police in

Providence located the grandson, still in possession of the gun,

and arrested him without incident.

    The next day, the chief determined that Caras was no longer

a suitable person to continue to hold a license to carry and

revoked Caras's license.   The formal notice issued to Caras by

Taunton Police Captain Daniel P. McCabe explained the grounds

for the determination of unsuitability as follows:   "Based on

Taunton Police Report 17001026, . . . I find from reliable and

credible information that you have exhibited or engaged in

behavior that created a risk to public safety by leaving your

firearm unsecured in your vehicle and having your grandson

remove it from the Commonwealth."

    Seeking to reinstate his license, Caras filed a complaint

for judicial review in the District Court under G. L. c. 140,

§ 131 (f).   A nonevidentiary hearing was held on April 6, 2017.

Caras supplemented the record with letters from friends and
                                                                    4


neighbors vouching for his character and integrity.   After

reviewing the evidence, and relying on Caras's responsible

action in reporting the theft of his gun, the judge determined

that the chief's unsuitability finding was unreasonable:

     "[T]his [c]ourt cannot find, under the circumstances of
     this case that a single error in judgment should or must
     define Mr. Caras. There is no evidence that the index
     incident was anything more than an aberration after almost
     fifty (50) years of safe gun ownership. As a result, this
     [c]ourt cannot find that existing factors suggest that, if
     issued a license, Mr. Caras may create a risk to public
     safety."

The judge ordered the chief to reinstate Caras's license to

carry.

     The chief sought review of the order by filing an action

for certiorari review in the Superior Court.   Acting on cross

motions for judgment on the pleadings, a Superior Court judge

allowed Caras's motion, affirming the order of the District

Court.   The chief appeals.

     Discussion.   Under G. L. c. 140, § 131 (d), a licensing

authority may decline to grant a license to carry a firearm to a

person not otherwise prohibited from receiving a license4 on the

ground that the person is "unsuitable."   The licensing authority




     4 The statute provides a list of disqualifying conditions
that prohibit a person from obtaining a license to carry, such
as certain criminal convictions, prior involuntary commitment
for mental illness, being younger than twenty-one years of age,
and renunciation of United States citizenship. See G. L.
c. 140, § 131 (d) (i)-(x).
                                                                   5


may also suspend or revoke a previously issued license "if, in a

reasonable exercise of discretion, the licensing authority

determines that the applicant or licensee is unsuitable . . . to

continue to hold a license to carry."   Id.   See G. L. c. 140,

§ 131 (f) ("A license may be revoked or suspended by the

licensing authority if it appears that the holder is no longer a

suitable person to possess such license").    The statute was

amended, effective January 1, 2015, to include criteria to guide

the licensing authority's discretion in determining

unsuitability.   See Chief of Police of Worcester v. Holden, 470

Mass. 845, 855 & n.8 (2015).   The criteria focus on maintaining

public safety:

    "A determination of unsuitability shall be based on: (i)
    reliable and credible information that the applicant or
    licensee has 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), as appearing in St. 2014, c. 284, § 48.

See Phipps v. Police Comm'r of Boston, 94 Mass. App. Ct. 725,

733 (2019) (prior to amendment, "cases addressing the term

[unsuitable] have generally upheld the denial or revocation of

licenses where a person has a documented risk to public

safety").

    The holder of a license may seek judicial review of the

revocation or suspension decision by filing a petition in the
                                                                      6


District Court.   See G. L. c. 140, § 131 (f).    The statute

permits the judge to reinstate the license if the judge finds,

after a hearing, "that there was no reasonable ground for

denying, suspending, revoking or restricting the license and

that the petitioner is not prohibited by law from possessing a

license."   Id.

    The District Court judge is not limited to the

administrative record in determining whether the revocation

decision was unreasonable.   Holden, 470 Mass. at 862.    The

license holder, who carries the burden of proving suitability,

"may present relevant evidence tending to show that he or she 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.   The District Court

judge, "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" (citation omitted).   Nichols v. Chief of

Police of Natick, 94 Mass. App. Ct. 739, 743-744 (2019).        The

judge must bear in mind, however, that "[t]he 'suitable person'

standard gives the licensing authority . . . 'considerable

latitude' or broad discretion in making a licensing decision."

Chardin v. Police Comm'r of Boston, 465 Mass. 314, 316, cert.

denied sub nom. Chardin v. Davis, 571 U.S. 990 (2013), quoting
                                                                    7


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

(1984).   See Nichols, supra at 743.   "To warrant a finding that

a chief of police had no reasonable ground for refusing to issue

a license [to carry firearms,] it must be shown that the refusal

was arbitrary, capricious, or an abuse of discretion."    Frawley

v. Police Comm'r of Cambridge, 473 Mass. 716, 729 (2016),

quoting Chief of Police of Shelburne v. Moyer, 16 Mass. App. Ct.

543, 546 (1983).   See Firearms Records Bur. v. Simkin, 466 Mass.

168, 179 (2013) ("A District Court judge may overturn a firearms

licensing decision as arbitrary or capricious where 'no

reasonable ground' exists to support the decision" [citation

omitted]).

    On appeal from the dismissal of the chief's certiorari

action, we apply the same standard of review as the Superior

Court judge.   See Frawley, 473 Mass. at 729-730; Nichols, 94

Mass. App. Ct. at 744; Phipps, 94 Mass. App. Ct. at 730.    Our

role "is to examine the record of the District Court and to

'correct substantial errors of law apparent on the record

adversely affecting material rights.'"    Simkin, 466 Mass. at

180, quoting Cambridge Hous. Auth. v. Civil Serv. Comm'n, 7

Mass. App. Ct. 586, 587 (1979).   "[We] may rectify only those

errors of law which have resulted in manifest injustice to the

plaintiff or which have adversely affected the real interests of

the general public."   Chardin, 465 Mass. at 321 n.15, quoting
                                                                   8


Massachusetts Bay Transp. Auth. v. Auditor of the Commonwealth,

430 Mass. 783, 790 (2000).   Based on our review of the record,

we conclude that such an error of law has occurred.

    Licensing authority decisions to revoke firearms licenses

have been held to be unreasonable where the behavior of the

licensee, while perhaps unusual or disturbing, did not implicate

public safety concerns.   See Simkin, 466 Mass. at 182

(licensee's "arguably unusual but otherwise innocuous actions"

of giving false name when seeking medical treatment did not

warrant revocation of license to carry); Phipps, 94 Mass. App.

Ct. at 733-735 (applicant's minor and immaterial inaccuracies in

responses to questions in face-to-face meeting with commander of

licensing unit did not supply reasonable grounds for denying

license).   By contrast, such decisions have been held to be

reasonable where the conduct in question suggested public safety

risks.   See Holden, 470 Mass. at 856 (upholding denial of

request to renew license to carry based on "specific and

reliable information that [applicant] had assaulted and beaten

his wife" five years earlier); Nichols, 94 Mass. App. Ct. at

739-740, 747 (licensing authority's denial of license to carry

to applicant with fifteen-year history of prescription drug

abuse not arbitrary, capricious, or abuse of discretion).

    Caras's actions provided a reasonable basis for the chief's

decision.   Caras failed to secure his handgun in his vehicle,
                                                                    9


which enabled his grandson to steal it.   Three police

departments had to take immediate action to find and to

apprehend the grandson, whose possession of the firearm not only

raised its own public safety concerns, but also created a risk

of the weapon falling into more dangerous hands.   Although Caras

was not prosecuted, his actions may have violated G. L. c. 140,

§ 131L, which "require[s] those authorized to possess a firearm,

when they are not carrying or otherwise immediately controlling

the firearm, to secure it to ensure that those who are not

authorized to possess a firearm do not gain access to their

firearm."   Commonwealth v. McGowan, 464 Mass. 232, 241 (2013).5

These facts do not permit the conclusion that the chief's

revocation decision was arbitrary or capricious or that no

reasonable ground supported it.

    We agree with the District Court judge that Caras's prompt

reporting of the theft to the police was laudable and may have

prevented disastrous consequences that leaving the gun

unattended and unsecured otherwise might have caused.     And the

supplemental evidence admitted during the District Court


    5  A conviction would have exposed Caras to a fine of up to
$7,500 and imprisonment for up to eighteen months, see G. L.
c. 140, § 131L (b), and would have prohibited him from holding a
license to carry under G. L. c. 140, § 131 (d) (i) (D). "The
fact that there was no conviction removes the incident as a
license disqualifier, but it does not remove the chief's
consideration of the incident on the question of [Caras's]
suitability." Holden, 470 Mass. at 856.
                                                                    10


proceedings supports the District Court judge's finding that

this incident was an "aberration" in Caras's life.     The chief,

in his discretion, could have taken the same view of the

circumstances as the District Court judge and could have chosen

not to revoke Caras's license.6   But the District Court judge's

belief that the chief should have made a different decision is

not a legally permissible basis for overturning the chief's

unsuitability determination.   The District Court judge's role is

to ensure that the licensing authority's decision is based on

objective evidence reasonably suggesting that the individual

would pose a risk to public safety if allowed to carry a

firearm, and is not otherwise arbitrary or capricious.    The

judge, however, may not second guess the licensing authority's

decision to take one reasonable action over another.

Notwithstanding Caras's laudable behavior after he discovered

that his grandson had stolen his gun, the chief could reasonably

determine from this incident that Caras's continued holding of a

license to carry might endanger the public.   None of the

additional evidence before the District Court judge materially




     6 Caras did not present any evidence that the chief applied
a different standard to Caras than to other similarly situated
licensees such that the chief's decision to revoke Caras's
license was arbitrary or capricious.
                                                                   11


undermined the chief's conclusion.   The chief's decision should

not have been disturbed.7

     Conclusion.   The judgment of the Superior Court is

reversed, and a new judgment shall enter affirming the

revocation of Caras's license to carry.

                                     So ordered.




     7 Nothing in our decision should be understood to preclude
Caras from applying for reinstatement of his license to carry
based on a showing to the chief that he should no longer be
considered unsuitable. See G. L. c. 140, § 131 (f) ("A revoked
or suspended license may be reinstated only upon the termination
of all disqualifying conditions, if any").
