Opinion
No. 11–P–2034.
2013-02-19
Forrest A. FERRILL, Second v. CHIEF OF POLICE OF SANDWICH.
By the Court (RAPOZA, C.J., BROWN & FECTEAU, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The plaintiff appeals from the dismissal by a Superior Court judge of his certiorari complaint challenging the defendant's denial of the plaintiff's application for a firearm license.
A District Court judge also upheld the defendant's denial of the plaintiff's license application. See G.L. c. 140, § 131( f ) (providing for judicial review of the denial of a firearm application in the District Court); Godfrey v. Chief of Police of Wellesley, 35 Mass.App.Ct. 42, 46 (1993) (District Court's decision is reviewable in Superior Court by way of “civil action in the nature of certiorari”).
Denial of application. “Subject to specific exceptions set out by statute, a chief of police may issue a carrying license ‘if it appears that the applicant is a suitable person to be issued such license’ and has an acceptable reason for requesting such a license. G.L. c. 140, § 131( d ). The ‘suitable person’ standard vests in the chief broad discretion or ‘considerable latitude.’ Ruggiero v.. Police Commr. of Boston, 18 Mass.App.Ct. 256, 259 (1984). In order to direct that such a license be issued or reinstated over the chief's denial, a judge must ‘find[ ] that there was no reasonable ground for denying, suspending or revoking such license....’ G.L. c. 140, § 131( f ). See Godfrey v. Chief of Police of Wellesley, 35 Mass.App.Ct. 42, 46 (1993). To warrant such a finding, ‘it must be shown that the refusal [to grant the license] was arbitrary, capricious, or an abuse of discretion.’ Chief of Police of Shelburne v. Moyer, 16 Mass.App.Ct. 543, 546 (1983). The burden of making the showing is on the applicant. Ibid.” Howard v. Chief of Police of Wakefield, 59 Mass.App.Ct. 901, 902 (2003). Moreover, “[t]he burden is upon the applicant to produce substantial evidence that he is a proper person to hold a license to carry a firearm.” Shelburne, supra. The defendant determined in 2010 that the plaintiff was not a “suitable person” for a firearm license based largely on the reasons for the denial of his first application in 2007, which included past criminal offenses, his failure to include previous court appearances on his 2007 application, and his association with a known felon. The 2007 denial also cited his lack of cooperation with the police by giving a false name to an investigating officer. The plaintiff, in turn, disputes the significance of these considerations and notes that there are no convictions on his record nor has he had any police involvement since his 2007 application.
It was not unreasonable for the defendant to conclude that the plaintiff's prior actions and indiscretions were of such a character and spanned a sufficient period of time that he should not be issued a firearm license. On the record before us, we cannot fairly say that the plaintiff has satisfied his burden of showing that the defendant's denial of the license was arbitrary, capricious, or an abuse of discretion. Similarly, we conclude that the plaintiff failed to produce substantial evidence that he is a proper person to hold a license to carry a firearm.
Second Amendment. On appeal, the plaintiff also asserts that because the defendant's denial of his application was arbitrary, capricious, and an abuse of discretion, the refusal to grant him a firearm license amounted to a violation of his Second Amendment rights under the United States Constitution. This argument was barely raised in the District Court and only somewhat expanded upon in the Superior Court. In any case, it must fail in light of our conclusion that the plaintiff has not satisfied his burden of showing that the denial of his application was arbitrary, capricious, or an abuse of discretion.
To the extent that the plaintiff also argues, in essence, that the “suitable person” standard of G.L. c. 140, § 131( d ), allows the licensing authority unconstitutionally broad discretion in the issuance of a license to carry a firearm, we deem that argument waived as it was not raised below and our review is limited to what appears on the record. See Shelburne, supra at 544 (“As the review by the Superior Court was confined to the record of the District Court, our review on appeal is also directed to that record to determine whether there are substantial errors of law apparent on that record adversely affecting material rights”). See also M.H. Gordon & Son, Inc. v. Alcoholic Bevs. Control Comm., 386 Mass. 64, 67 (1982) (“[A]n issue not raised in the trial court cannot be argued for the first time on appeal”). Similarly, we treat as waived the plaintiff's argument that an applicant who is not disqualified on at least one of the several grounds specified in the statute is a “suitable person” by virtue of that fact alone. In any case, were we to consider the plaintiff's constitutional claims relating to the “suitable person” standard, we would conclude that they are without merit.
Judgment affirmed.