Opinion
20-P-875
06-02-2021
AHMED FRED KENAWY v. POLICE COMMISSIONER OF BOSTON & another.[1]
Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass.App.Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass.App.Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass.App.Ct. 258, 260 n.4 (2008) .
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The applicant, Ahmed Fred Kenawy, appeals from a judgment of a Superior Court judge denying his complaint for certiorari regarding the denial of a license to carry a firearm. As the applicant admitted to sufficient facts to warrant a guilty finding to threatening his mother with a knife, the licensing authority had reasonable ground for determining that the applicant was not a suitable person to carry a firearm. Accordingly, we affirm.
1. Standard of review.
"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 license on the ground that the person is 'unsuitable'" (footnote omitted). Chief of Police of Taunton v. Caras, 95 Mass.App.Ct. 182, 184 (2019). Such a finding must 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.'" Nichols v. Chief of Police of Natick, 94 Mass.App.Ct. 739, 743 (2019), quoting G. L. c. 140, § 131 (d). A licensing authority "is vested with '"considerable latitude" or broad discretion in making a licensing decision.'" Firearms Records Bureau v. Simkin, 466 Mass. 168, 179 (2013), quoting Chardin v. Police Comm'r of Boston, 465 Mass. 314, 316 (2013) .
A municipal court judge may reverse a licensing authority's denial of a license "if the judge finds that the licensing authority had 'no reasonable ground' for denying the license." Nichols, 94 Mass.App.Ct. at 744, quoting G. L. c. 140, § 131 (f_) . "The petitioner is entitled to relief only if the licensing authority's denial was 'arbitrary, capricious, or an abuse of discretion.'" Chardin, 465 Mass. at 317, quoting Godfrey v. Chief of Police of Wellesley, 35 Mass.App.Ct. 42, 46 (1993).
"On certiorari review, the Superior Court's 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 review the Superior Court's decision de novo. See Nichols, 94 Mass.App.Ct. at 744.
2. Suitability.
In November 2010, the applicant admitted to sufficient facts to warrant a finding of guilty after a tender of plea and a full colloquy and accepted a continuance without a finding for assault by means of a dangerous weapon, G. L. c. 265, § 15B (b), in Chelsea District Court. A conviction for this crime would permanently render an applicant ineligible for a license. G. L. c. 140, § 131 (d) (i). See also 18 U.S.C. § 922(g)(1) (federal crime for felon to possess firearm in or affecting interstate or foreign commerce). Hours after being warned by the police to stay away from his mother, the applicant returned to her home, pulled out a folding knife, and "threatened to destroy her." It is reasonable for a licensing authority to believe that an applicant committed acts where he admitted to sufficient facts to warrant a finding of guilt and accepted a continuance without a finding. See Nichols, 94 Mass.App.Ct. at 741, 745.
The applicant asserted to the Boston Municipal Court that "he was a Minor" at the time, specifically testifying twice that he was sixteen years old. Obviously, a sixteen year old could not have been prosecuted in District Court. See G. L. c. 119, § 52, as amended by St. 1960, c. 353, § 1; G. L. c. 119, § 54, as amended by St. 1996, c. 200, § 2. In fact, the record reflects that he was eighteen years old.
The licensing authority (and the municipal court) was well justified in not crediting the mother's letter stating that "[t]he situation he was charged with was a misunderstanding that never occurred." It is hardly unusual for victims of domestic violence to recant, see Commonwealth v. King, 436 Mass. 252, 262 (2002) ("We recognize that victims of domestic violence often change their minds about whether to testify and whether to press charges in connection with a prior attack"), and the letter falsely states that applicant "has had no issues with the law since this incident in 2010," where in fact he had been charged with seven additional crimes since that incident, including armed robbery, G. L. c. 265, § 17. Similarly, the municipal court could reasonably not credit the applicant's testimony that he had not committed the crime, especially in light of the applicant's other false statements. See Motsis v. Ming's Supermarket, Inc., 96 Mass.App.Ct. 371, 380 (2019).
This odd phrasing was apparently supplied by the applicant; he testified that he asked his mother to write a letter "stating that that case was all a misunderstanding and it never happened."
"The goal of firearms control legislation in Massachusetts is to limit access to deadly weapons by irresponsible persons." Phipps v. Police Comm'r of Boston, 94 Mass.App.Ct. 725, 733 (2019), quoting Ruggiero v. Police Comm'r of Boston, 18 Mass.App.Ct. 256, 258 (1984). The applicant's threatening his mother with a knife provided reasonable ground to conclude that the applicant would pose a risk to public safety. Indeed, the applicant's criminal activity presented a far greater danger to public safety than merely failing to secure a weapon, which provides sufficient ground to revoke a license to carry. See Caras, 95 Mass.App.Ct. at 186-187. Accordingly, we see no basis to disturb the District Court's denial of the applicant's petition or the Superior Court's denial of certiorari.
Judgment affirmed.
The panelists are listed in order of seniority.