Chief of Police of the City of Worcester v. Holden , 470 Mass. 845 ( 2015 )

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SJC-11682
CHIEF OF POLICE OF THE CITY OF WORCESTER vs. RAYMOND J.
HOLDEN, JR.
Worcester. November 6, 2014. - March 11, 2015.
Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, &
Hines, JJ.
Firearms. License. Constitutional Law, Right to bear arms,
Vagueness of statute. Due Process of Law, Revocation of
license, Vagueness of statute. Words, "Suitable person."
Civil action commenced in the Superior Court Department on
December 6, 2011.
The case was heard by James R. Lemire, J., on motions for
judgment on the pleadings.
The Supreme Judicial Court granted an application for
direct appellate review.
Mel L. Greenberg for the defendant.
Kevin M. Gould, Assistant City Solicitor (David M. Moore,
City Solicitor, with him) for the plaintiff.
Julia Kobick, Assistant Attorney General, for the
Commonwealth, amicus curiae.
The following submitted briefs for amici curiae:
Jonathan E. Lowy, Kelly Sampson, Elizabeth Burke, Jonathan
L. Diesenhaus, James W. Clayton, & Anna M. Kelly, of the
District of Columbia, & Kathy B. Weinman for Brady Center to
Prevent Gun Violence.
2
Ben T. Clements & Lila E. Slovak for Massachusetts Chiefs
of Police Association, Inc., & others.
Edward F. George, Jr., & Susan Chu for Gun Owners' Action
League, Inc.
Karen L. MacNutt for Commonwealth Second Amendment, Inc.
SPINA, J. This case mounts a challenge under the Second
Amendment to the United States Constitution1 to the
constitutionality of the "suitable person" standard in G. L.
c. 140, § 131 (d) and (f), as amended through St. 1998, c. 180,
§ 41, by which licenses to carry firearms were issued,
suspended, or revoked between 2005 and 2010.2 The chief of
police of the city of Worcester (chief) determined, based on the
history of domestic violence of Raymond J. Holden, Jr., against
his wife, that Holden was not a suitable person to have such a
license. Holden sought judicial review of three separate
adverse decisions of the chief: suspension of his license, then
revocation of his license, and finally denial of his application
for a new license to carry. After a complex history of District
Court litigation that was consolidated and resolved largely in
favor of Holden, the chief sought certiorari review in the
Superior Court. On cross motions for judgment on the pleadings,
1
The Second Amendment to the United States Constitution
states: "A well regulated Militia, being necessary to the
security of a free State, the right of the people to keep and
bear Arms, shall not be infringed."
2
The statute was further amended in 2014. See notes 5, 6,
8, and 10, infra.
3
a judge in the Superior Court ruled in favor of the chief.
Holden appealed, and we granted his petition for direct
appellate review. On appeal, Holden argues that (1) the
"suitable person" standard violates the Second Amendment, both
facially and as applied; (2) the statutory scheme as to the
suspension and revocation of licenses and the denial of license
applications violates procedural due process because it is
devoid of any provision for a hearing before the chief, and
because it makes no provision for an aggrieved person to
confront and cross-examine witnesses in the District Court; (3)
the "suitable person" standard is unconstitutional as applied to
him because it allows the chief to disqualify him permanently
from licensure as an unsuitable person without current cause;
and (4) the decisions of the chief were not supported by
substantial evidence. We reject Holden's claims, and we affirm
the judgment of the Superior Court.3
1. Background. On the evening of September 10, 2005,
Holden's daughter telephoned the Shrewsbury police department
911 dispatch to report that her father had just beaten her
3
We acknowledge the amicus briefs of the Attorney General;
Brady Center to Prevent Gun Violence; and Massachusetts Chiefs
of Police Association, Inc.; Stop Handgun Violence; Educational
Fund to Stop Gun Violence; and Jewish Alliance for Law & Social
Action, in support of the chief of police of the city of
Worcester (chief), and the amicus briefs of Commonwealth Second
Amendment, Inc., and Gun Owners Action League, Inc., in support
of Raymond J. Holden, Jr.
4
mother and thrown her out of his vehicle in front of the
daughter's house in Shrewsbury. She reported that her mother
was crying and that she was requesting police assistance.
Police arrived at the daughter's home. Holden's wife prepared
and signed a written statement, witnessed by her daughter, in
which she described what occurred. She indicated that she and
Holden were at a restaurant that evening. After consuming a few
cocktails they began to argue. She did not want to create a
scene, so she asked the bartender to arrange for a taxicab to
take her home. Eventually she left with Holden, who verbally
assaulted her and said he was going to leave her at their
daughter's home. Upon arrival, Holden punched his wife in the
face, walked around to the passenger's side door, and pulled her
out of the vehicle. He threw her to the pavement and then drove
away. She suffered a swollen lip, a scratch over her right eye,
and scrapes and bruises on her left arm.
On September 12, 2005, Holden was arraigned in the
Westborough Division of the District Court Department
(Westborough District Court) on a complaint alleging assault and
battery on his wife. On September 14, 2005, the chief, acting
in his capacity as licensing authority for the city of
Worcester, suspended Holden's license on the ground that he was
not suitable to carry firearms. His decision was based on
Holden's arraignment on the assault and battery complaint. The
5
complaint was dismissed two weeks later at the request of the
complainant, Holden's wife.
On December 6, 2005, Holden filed a complaint for judicial
review of his suspension in the Worcester Division of the
District Court Department (Worcester District Court), pursuant
to G. L. c. 140, § 131 (f). After an evidentiary hearing, the
judge ordered the restoration of Holden's license because the
sole ground for the suspension was the pending charge of assault
and battery, which had been dismissed. The judge ruled that the
suspension was "arbitrary and capricious in that the withholding
of the license [was] not predicated upon any factual
determination by [the licensing authority]." On January 30,
2006, the chief reinstated the suspended license.
However, on that same day, immediately after restoring
Holden's suspended license, the chief revoked the license.
Instead of relying on Holden's arraignment on the then-dismissed
complaint for assault and battery, the chief's written decision
set forth specific findings based on the police incident report
of September 10, 2005, which contained details of the assault
and battery as reported by Holden's wife. The chief explained
that the credible information in the incident report, and not
the mere existence of a criminal charge, were the grounds on
which he determined Holden to be unsuitable. On March 1, 2006,
Holden filed a complaint for judicial review in the Worcester
6
District Court. A different judge found facts and ruled,
without an evidentiary hearing, that the subsequent action by
the chief was based on the same evidence that was presented in
the earlier action. He ordered the license reinstated. The
chief filed a complaint for certiorari in the Superior Court.
On May 21, 2007, a judge of the Superior Court determined that
the failure to conduct an evidentiary hearing was error, and he
remanded the case to the District Court for an evidentiary
hearing on the revocation. Holden sought appellate review, but
the appeal was dismissed by the Appeals Court on June 30, 2008,
on the ground that the Superior Court's order of remand was
interlocutory, from which there was no right of appeal.
The case lay dormant for nearly two years. On June 17,
2010, Holden requested a hearing.4 On September 21, 2010,
Holden's revoked license to carry firearms expired. On
October 18, 2010, Holden applied to the Worcester police
department licensing division for a new license to carry
firearms. On November 18, 2010, the chief denied the
application on the ground that Holden was not a suitable person
to hold such a license. The chief relied upon and cited details
from the police incident report of September 10, 2005; the
4
Although Holden's motion regarding this request does not
appear on the Worcester District Court docket, the docket states
that a memorandum and order issued on that motion on August 10,
2010.
7
statement signed by Holden's wife on September 10, 2005; and the
911 dispatch call from Holden's daughter. On January 6, 2011,
Holden filed a complaint for judicial review of the denial of
his application, pursuant to G. L. c. 140, § 131 (f), in
Worcester District Court. He also filed a motion to consolidate
all three cases, which was allowed. It is not clear why the
first case was included, as it had been decided and no notice of
appeal had been filed.
A full evidentiary hearing was held before a third judge of
the District Court on February 7 and 9, 2011. On October 21,
2011, the judge ruled that the chief had a reasonable ground to
suspend and revoke Holden's license in 2005 and 2006,
respectively, based upon the reported domestic assault and
battery by Holden on his wife on September 10, 2005,
notwithstanding dismissal of the criminal charges in the
Westborough District Court on October 3, 2005. The judge
concluded that the chief had authority to rely on reported
behavior of a licensee, even if there had not been any criminal
charges. However, the judge vacated the November 18, 2010,
denial of Holden's application for a license to carry a firearm
and directed that a license to carry be issued to Holden. The
judge determined that the chief did not have a reasonable ground
for denying the 2010 application where there had been a
significant passage of time with no intervening incidents. He
8
further ruled that a 2006 directive of the chief to the effect
that a revocation of license operated as a "permanent loss"
constituted an abuse of discretion.
On December 6, 2011, the chief filed a complaint for
certiorari review in the Superior Court. The parties filed
cross motions for judgment on the pleadings. After a hearing, a
judge of the Superior Court granted the chief's motion for
judgment on the pleadings, and he denied Holden's motion. The
judge reasoned that "[t]he passage of time without interaction
with the law . . . does not preclude a finding of unsuitability
. . . [but is a] factor that [a licensing authority] is entitled
to take into consideration. . . . [I]t is not appropriate
grounds for the District Court to overrule [the chief in this
case]." The judge also concluded that the District Court judge
erred in relying on the 2006 directive where there was no
evidence that the chief had relied on the directive or that a
revoked license actually would result in a lifetime ban.
Finally, the judge determined that the "core of the Second
Amendment, the right of an individual to keep and bear arms in
the home, was not implicated in [Holden's] case."
2. As-applied challenge. Holden argues that the Second
Amendment secures for him the right to carry a handgun for self-
defense outside the home, and that this right cannot be made
subject to a determination by the chief that he is a suitable
9
person to carry a handgun. He contends that the "suitable
person" standard in G. L. c. 140, § 131 (d) and (f), violates
the Second Amendment, and that it violates constitutional
principles of vagueness. There are several parts to this
challenge, which we address in turn.
As an initial matter, it is important to note that the
record is silent as to whether Holden had held a Class A license
or a Class B license, and whether he applied for a Class A or a
Class B license after his revoked license expired. For purposes
of this appeal the relevant difference between the two types of
licenses is that a Class A license entitles a holder to possess
and carry a concealed firearm for all lawful purposes, subject
to such restrictions as the licensing authority deems proper.
See G. L. c. 140, § 131 (a).5 A Class B license entitles a
holder to "possess and carry . . . non-large capacity firearms
. . . for all lawful purposes, subject to such restrictions
. . . as the licensing authority deems proper; provided,
however, that a Class B license shall not entitle the holder
thereof to carry or possess a loaded firearm in a concealed
5
General Laws c. 140, § 131 (a), was amended by St. 2014,
c. 284, § 47, effective January 1, 2021. Under the amended
statute there will be no Class A and Class B licenses, but a
unitary license to carry.
10
manner in any public way or place." G. L. c. 140, § 131 (b).6
The analysis is somewhat different for each type of license. We
begin with the Class A license.
a. Class A license. Holden's argument begins with a
statement from District of Columbia v. Heller, 554 U.S. 570
(2008), made applicable to the States by McDonald v. Chicago,
561 U.S. 742, 791 (2010), where the United States Supreme Court
declared self-defense to be "the central component of the
[Second Amendment] right itself" (emphasis in original).
Heller, supra at 599. The Court was addressing, and rejected,
Justice Breyer's dissent where he described individual self-
defense as being merely a "subsidiary interest" to the Second
Amendment's right to keep and bear arms. Id. at 714 (Breyer,
J., dissenting). Holden acknowledges that the Supreme Court
also said in Heller that the "need for defense of self, family,
and property is most acute" in the home, id. at 628, but he
maintains nevertheless that the right of self-defense is the
core holding of Heller. He reasons that nothing in Heller
suggests that the right to bear arms for self-defense is limited
to the home. Relying on Moore v. Madigan, 702 F.3d 933, 942
(7th Cir. 2013), Holden maintains that the right to keep and
bear arms to defend oneself is at least as important outside the
6
General Laws c. 140, § 131 (b), was amended by St. 2014,
c. 284, § 47, effective January 1, 2021. See note 5, supra.
11
home as it is inside the home. His argument culminates in the
following statement: "By noting that restrictions on carrying
firearms 'in sensitive places such as schools and government
buildings' . . . were 'presumptively lawful' under the Second
Amendment . . . the Court at least suggested that restrictions
on carrying firearms outside the home in less 'sensitive' places
would violate the right to keep and bear arms," quoting Heller,
supra at 626, 627 n.26.
In Heller, 554 U.S. at 635, the Court held that the
District of Columbia's total ban on handgun possession in the
home violates the Second Amendment. The Court did not say or
imply, as Holden argues, that the right of self-defense is as
great outside the home as it is inside the home. Indeed, the
Court expressed something to the contrary. It said "the need
for defense of self, family, and property is most acute" in the
home. Id. at 628. The United States Court of Appeals for the
First Circuit has observed that, with respect to this language
from Heller, "[c]ourts have consistently recognized that Heller
established that the possession of operative firearms for use in
defense of the home constitutes the 'core' of the Second
Amendment." Hightower v. Boston, 693 F.3d 61, 72 (1st Cir.
2012).
Moreover, mindful of the problem of handgun violence
throughout the country, the Supreme Court said that "[t]he
12
Constitution leaves the District of Columbia a variety of tools
for combating that problem, including some measures regulating
handguns, see supra at 624-627, and n.26." Heller, 554 U.S. at
636. As to those measures, the Court observed that "[l]ike most
rights, the right secured by the Second Amendment is not
unlimited. From Blackstone through the [Nineteenth Century]
cases, commentators and courts routinely explained that the
right was not a right to keep and carry any weapon whatsoever in
any manner whatsoever and for whatever purpose." Id. at 626.
The Court identified a nonexhaustive list of prohibitions and
restrictions on the Second Amendment right, including
"prohibitions on carrying concealed weapons[,] . . .
longstanding prohibitions on the possession of firearms by
felons and the mentally ill, . . . laws forbidding the carrying
of firearms in sensitive places such as schools and government
buildings, . . . [and] laws imposing conditions and
qualifications on the commercial sale of arms." Id. at 626-627.
Conspicuously absent from Holden's argument is the Supreme
Court's inclusion of "prohibitions on carrying concealed
weapons" among the "tools" available to combat gun violence.
Heller, 554 U.S. at 626, 636. This particular prohibition
applies to the possession of firearms outside the home.
Significantly, the Court referred to this tool as a
"prohibition" on carrying firearms, not merely a restriction.
13
Moreover, the Court emphasized that prohibitions on carrying
concealed weapons and other prohibitions specifically mentioned
(and others not specified) were "presumptively lawful." Id. at
626-627 & n.26. See Hightower, 693 F.3d at 73.
Because a prohibition against carrying concealed weapons is
presumptively lawful, it follows that licensing the carrying of
such weapons, a less restrictive measure, also must be
presumptively lawful. See id. at 74. "Presumptively lawful"
prohibitions and regulations do not burden conduct protected by
the Second Amendment. As such, they fall outside the scope of
the Second Amendment and are not subject to heightened scrutiny.
See Commonwealth v. McGowan, 464 Mass. 232, 239, 244 (2013).
For these reasons, we conclude that the denial of a Class A
license to carry a concealed firearm, or the revocation or
suspension of a Class A license, falls outside the Second
Amendment and is subject only to rational basis analysis, as a
matter of substantive due process. See id.
i. Rational basis. Those who challenge the
constitutionality of a statute that neither burdens a suspect
group nor a fundamental constitutional right bear a heavy burden
in overcoming the presumption of constitutionality in favor of a
statute's validity. See English v. New England Med. Ctr., Inc.,
405 Mass. 423, 427 (1989), cert. denied, 493 U.S. 1056 (1990).
Under the Federal Constitution, the rational basis test under
14
principles of due process is "'whether the statute bears a
reasonable relation to a permissible legislative objective'
. . . and, under the . . . State Constitution [is] whether the
statute 'bears real and substantial relation to public health,
safety, morals, or some other phase of the general welfare'"
(citations omitted). Id. at 430. Holden offers nothing to
overcome the presumption of constitutionality with respect to
the regulation of concealed weapons. He relies exclusively on
the application of strict scrutiny. Nevertheless, we undertake
the analysis.
The purpose of G. L. c. 140, § 131, is to "limit access to
deadly weapons by irresponsible persons." Ruggerio v. Police
Comm'r of Boston, 18 Mass. App. Ct. 256, 258 (1984). "From a
realization that prevention of harm is often preferable to
meting out punishment after an unfortunate event, [§ 131] was
enacted as a first-line measure in the regulatory scheme. It
has been said about § 131 that it was intended 'to have local
licensing authorities employ every conceivable means of
preventing deadly weapons in the form of firearms [from] coming
into the hands of evildoers.'" Id. at 258-259, quoting Rep.
A.G., Pub. Doc. No. 12, at 233-234 (1964). Section 131, in
addition to excluding certain classes of persons from licensure,
requires that the licensing authority ascertain whether an
applicant is a "suitable person" to carry firearms and has a
15
proper purpose for carrying a firearm, and that someone who has
been issued such a license remains suitable. G. L. c. 140,
§ 131 (d), (f). The Supreme Court acknowledged precisely the
need for such determinations when it said of the Second
Amendment, "whatever else it leaves to future evaluation, it
surely elevates above all other interests the right of law-
abiding, responsible citizens to use arms in defense of hearth
and home" (emphasis added). Heller, 554 U.S. at 635. Although
the statute has been amended,7 the "suitable person" standard
still confers upon a 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, 134 S. Ct. 525 (2013), quoting
Ruggiero, supra at 259. Specifically, it allows licensing
authorities to keep 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. The statute,
broadly speaking, bears a reasonable, as well as a real and
substantial, relation to public health and safety. As such, the
"suitable person" standard passes muster under the United States
and the Massachusetts Constitutions under rational basis
analysis.
7
See note 8, infra.
16
Even if Holden had a Second Amendment interest in carrying
a concealed weapon, the suspension and revocation of his
license, and the denial of his application for a new license,
would survive heightened scrutiny, which we discuss infra.
ii. Vagueness. Holden also contends that the "suitable
person" standard is inherently subjective and unconstitutionally
vague. "A law is void for vagueness if persons 'of common
intelligence must necessarily guess at its meaning and differ as
to its application,'" Caswell v. Licensing Comm'n for Brockton,
387 Mass. 864, 873 (1983), quoting Connally v. General Constr.
Co., 269 U.S. 385, 391 (1926), or if it "subjects people to an
unascertainable standard." Brookline v. Commissioner of the
Dep't of Envtl. Quality Eng'g, 387 Mass. 372, 378 (1982), S.C.,
398 Mass. 404 (1986). The degree of vagueness that is
permissible under principles of due process varies with the
interests involved. See Hoffman Estates v. Flipside, Hoffman
Estates, Inc., 455 U.S. 489, 498-499 (1982); Brookline, supra.
Flexibility in a statute is necessary to respond to individual
cases. See Custody of a Minor (No. 2), 378 Mass. 712, 719
(1979) (to survive vagueness challenge Legislature need not
"anticipate and codify every parental shortcoming or handicap
that might place an exposed child in danger"). "Ambiguities
. . . may be clarified by resort to the administrative process
so as to cure a vagueness claim." Brookline, supra.
17
The term "suitable person" is not defined in the statute as
it existed prior to 2015.8 Nor is it defined by any regulation
promulgated by the Executive Office of Public Safety and
Security or its designee, despite the Appeals Court's
suggestions that guidelines would be beneficial. See MacNutt v.
Police Comm'r of Boston, 30 Mass. App. Ct. 632, 636 n.6 (1991);
Ruggiero, 18 Mass. App. Ct. at 261 n.7. Other States have
"suitable person" standards in their firearms licensing laws.
See, e.g., Conn. Gen. Stat. § 29-28(b); Hawaii Rev. Stat. Ann.
§ 134-9(b)(2); N.H. Rev. Stat. Ann. § 159:6(I); R.I. Gen. Laws
§ 11-47-11(a). Our decisions have served to help clarify the
meaning of the term and limit the scope of discretion of a
licensing authority.
For example, in DeLuca v. Chief of Police of Newton, 415
Mass. 155, 159-160 (1993), this court held that a finding of
unsuitability properly could be made based on acts underlying
convictions even after pardon. The court reasoned that although
a pardon removed the disqualifying feature of a conviction,
because "character is a necessary qualification and the
8
General Laws c. 140, § 131 (d), was amended by St. 2014,
c. 284, § 48, effective January 1, 2015, and now provides in
relevant part: "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 license may create a
risk to public safety."
18
commission of a crime would disqualify even though there had
been no criminal prosecution for the crime, the fact that the
criminal has been convicted and pardoned does not make him any
more eligible" (citations omitted). Id. In Howard v. Chief of
Police of Wakefield, 59 Mass. App. Ct. 901, 902 (2003), the
Appeals Court upheld a finding of unsuitability based on an
abuse prevention order that had expired. Moreover, in Godfrey
v. Chief of Police of Wellesley, 35 Mass. App. Ct. 42, 43, 47-48
(1993), the Appeals Court upheld a finding of unsuitability
based on a licensee's refusal to cooperate with a police
investigation in the face of what the police chief reasonably
deemed to be a continuing and serious danger to public safety,
particularly young children, where police had reason to believe
that a gun used to fire bullets into a school, a private
residence, and an automobile might have belonged to the
licensee. These cases provide adequate guidance to persons of
common intelligence that conduct which is criminal and violent,
regardless whether it has resulted in a criminal conviction, is
grounds for denial, revocation, or suspension of a license to
carry a firearm on the basis of unsuitability.
Holden's license was revoked, and his application for
renewal of his license was denied, based not on a generalized,
subjective determination of unsuitability, but on specific and
reliable information that he had assaulted and beaten his wife.
19
The information on which the chief relied was the type of
information on which judges rely when revoking a criminal
defendant's probation. See Commonwealth v. Durling, 407 Mass.
108, 120-122 (1990). The punishment for assault and battery
includes imprisonment of up to two and one-half years. See
G. L. c. 265, § 13A. Had Holden been convicted of this offense,
he would have been disqualified from firearm licensure. See
G. L. c. 140, § 131 (d) (i), (f). 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 Holden's suitability. Whatever ambiguities may
be imbedded in the term "suitable person," our jurisprudence
puts people on notice that uncharged and untried criminal
conduct amounting to an assault and battery is not among them.
See Deluca, 415 Mass. at 159-160; Howard, 59 Mass. App. Ct. at
902. See also G. L. c. 140, § 121 (definition of "violent
crime"). A person of common intelligence would understand that
an assault and battery could render him or her unsuitable for
purposes of § 131. As applied to a Class A license holder in
Holden's situation, his vagueness challenge fails.
b. Class B license. Practical wisdom cautions that the
law of possession of firearms outside of the home is a "vast
terra incognita that courts should enter only upon necessity and
only then by small degree." Hightower, 693 F.3d at 74, quoting
20
United States v. Masciandaro, 638 F.3d 458, 475 (4th Cir.),
cert. denied, 132 S. Ct. 756 (2011). After acknowledging that
the Constitution allows "some measure [for] regulating
handguns,"9 in one of the few definitive statements in Heller,
the Supreme Court said "certain policy choices [are] off the
table. These include the absolute prohibition of handguns held
and used for self-defense in the home" (emphasis added).
Heller, 554 U.S. at 636. In the instant case we have neither an
absolute prohibition of handguns in the home nor the regulation
of handguns in the home. We also are not faced with an absolute
ban on carrying ready-to-use firearms in public. See Moore, 702
F.3d at 940. Although the exact parameters of the Second
Amendment are far from clear with respect to openly carrying
firearms outside the home, and the law is similarly unsettled as
to which standard of scrutiny applies, we may nevertheless
engage in a meaningful analysis based on some assumptions.
To begin, if we assume that Holden had a Class B license or
that he had applied for a Class B license, and if we further
assume that he had an interest protected by the Second
Amendment, in that context that interest would not necessarily
enjoy the same level of protection as keeping and bearing a
handgun for self-defense in the home, which has been
9
The prefatory clause of the Second Amendment ("well
regulated Militia") anticipates some regulation.
21
increasingly recognized as the "core" of the Second Amendment.
See Hightower, 693 F.3d at 72. We said recently that some
measure of regulation is permissible even in the home "to
prevent those who are not licensed to possess or carry firearms
from gaining access to firearms." McGowan, 464 Mass. at 244.
In that case, we held that G. L. c. 140, § 131L (a), was
"consistent with the right of self-defense in the home because
it does not interfere with the ability of a licensed gun owner
to carry or keep a loaded firearm under his immediate control
for self-defense," but requires him to store the firearm in a
locked container or apply a safety device that renders the
weapon inoperable by someone who is not lawfully authorized when
not being carried or kept under the direct personal control of
the owner or a lawfully authorized user. Id. at 243. Where the
Commonwealth has not totally banned the open carrying of
firearms in public but has subjected such activity to licensing,
the question becomes not whether any regulation is permissible
under the Second Amendment but whether the particular regulation
is permissible. See Hightower, 693 F.3d at 73.
Federal Circuit Courts of Appeals that have considered the
question of regulation of firearms in public have observed that
historically such regulation has been more prevalent than
regulation of firearms in the home, and that the right to carry
in public implicates more peripheral Second Amendment concerns
22
than keeping and bearing arms in the home. See, e.g., Drake v.
Filko, 724 F.3d 426, 430 n.5 (3d Cir. 2013), cert. denied sub
nom. Drake v. Jerejian, 134 S. Ct. 2134 (2014); Kachalsky v.
County of Westchester, 701 F.3d 81, 96 (2d Cir. 2012), cert.
denied sub nom. Kachalsky v. Cacace, 133 S. Ct. 1806 (2013);
Hightower, 693 F.3d at 72; Masciandaro, 638 F.3d at 470. A
majority of those courts has applied intermediate scrutiny to
laws regulating firearms in public because the regulating
authority did not totally prohibit carrying firearms in public
and because the right to carry a firearm in public was not at
the core of the Second Amendment. See Drake, supra at 436;
Woollard v. Gallagher, 712 F.3d 865, 876 (4th Cir.), cert.
denied, 134 S. Ct. 422 (2013); Kachalsky, supra at 93-96.
Compare Hightower, supra at 74 (plaintiff's "claim fails
whatever standard of scrutiny is used"). Under intermediate
scrutiny the question is whether the challenged statute is
"substantially related to an important governmental objective."
Clark v. Jeter, 486 U.S. 456, 461 (1988). See Brackett v. Civil
Serv. Comm'n, 447 Mass. 233, 246 (2006).
The governmental objective here has been stated variously
as the promotion of public safety by "limit[ing] access to
deadly weapons by irresponsible persons," Ruggiero, 18 Mass.
App. Ct. at 258; assuaging "the societal concern with weapons
reaching the hands of unauthorized users," Jupin v. Kask, 447
23
Mass. 141, 154 (2006); and "prevent[ing] the temptation and the
ability to use firearms to inflict harm, be it negligently or
intentionally, on another or on oneself." Commonwealth v. Lee,
10 Mass. App. Ct. 518, 523 (1980). General Laws c. 140, § 131,
"was enacted as a first-line measure in the regulatory scheme,"
arising from the obvious and unassailable "realization that
prevention of harm is often preferable to meting out punishment
after an unfortunate event." Ruggiero, supra at 258-259. The
Supreme Court has recognized that the government interest in
public safety is both "compelling," United States v. Salerno,
481 U.S. 739, 745 (1987), and "significant." Schenck v. Pro-
Choice Network of W. N.Y., 519 U.S. 357, 376 (1997). The
Commonwealth's interest in firearms control regulation is of the
"utmost importance, as the statute governing who may lawfully
carry a firearm directly affects the physical safety of the
citizenry." Dupont v. Chief of Police of Pepperell, 57 Mass.
App. Ct. 690, 693 (2003).
The suitable person standard in G. L. c. 140, § 131 (d) and
(f), is substantially related to these important governmental
interests. As the Attorney General explained in 1926, this
standard ensures that "the traffic of firearms shall be exposed
to the scrutiny of the proper authorities and that criminals and
irresponsible persons shall be unable to obtain firearms
easily." Rep. A.G., Pub. Doc. No. 12, at 160 (1926). That
24
purpose remained essentially unchanged nearly forty years later,
when the Attorney General stated: "the intent of the General
Court is to have local licensing authorities employ every
conceivable means of preventing deadly weapons in the form of
firearms coming into the hands of evildoers." Rep. A.G., Pub.
Doc. No. 12, at 233-234 (1964). That purpose remains firm
today. As one Federal District Court judge observed about the
Connecticut counterpart to the suitable person standard in G. L.
c. 140, § 131 (d) and (f): "it is impossible for the
[L]egislature to conceive in advance each and every circumstance
in which a person could pose an unacceptable danger to the
public if entrusted with a firearm." Kuck v. Danaher, 822 F.
Supp. 2d 109, 129 (D. Conn. 2011). That standard, with
"circumscribed discretion," was deemed to be constitutional.
Id.
As discussed above with respect to the discussion of the
Class A license, there is nothing vague about the application of
the suitable person standard to Holden's circumstances. There
has been no showing that the chief's decision was arbitrary or
capricious. And there has been no showing of heavy-handedness
on the part of the chief. To the contrary, the District Court
judge found after an evidentiary hearing that in approximately
six years since 2006, the chief granted approximately 3,200
25
applications for licenses to carry and denied or suspended
approximately 200 such applications and licenses.
As previously discussed, Holden's conduct in punching his
wife in the face, dragging her out of his vehicle, and throwing
her to the ground constitutes criminal conduct that would have
disqualified him from licensure had he been convicted. The
absence of a conviction does not prevent such conduct from
consideration by the chief on the question of Holden's
suitability. Holden's acts of domestic violence provide
precisely the kind and quality of evidence that rationally
support a finding of unsuitability. The suitability standard
works in tandem with the disqualifying provisions of the statute
to reasonably prevent lethal firearms from falling into the
hands of persons likely to misuse them. This standard is
substantially related to the Commonwealth's important interests
in promoting public safety and preventing violence. For these
reasons Holden's as-applied challenge fails.
3. Facial challenge. Holden's facial challenge, on Second
Amendment grounds, focuses on the discretion conferred by the
"suitability" requirement. He contends that G. L. c. 140, § 131
(d) and (f), is unconstitutionally vague on its face because it
confers excessive discretion in determinations of suitability.
Holden maintains that the statute permits determinations of
unsuitability that are inherently subjective. For his facial
26
attack to succeed Holden "would have to establish 'that no set
of circumstances exists under which [the suitability standard]
would be valid,' United States v. Salerno, 481 U.S. at 745, or
that the statute lacks any 'plainly legitimate sweep,'
Washington v. Glucksberg, 521 U.S. 702, 740 n.7 (1997)." United
States v. Stevens, 559 U.S. 460, 472 (2010). Although which of
these standards controls is a question that is unresolved, see
id., Holden's challenge fails under both.
A "plaintiff who engages in some conduct that is clearly
proscribed cannot complain of the vagueness of the law as
applied to the conduct of others." United States v. Williams,
553 U.S. 285, 304 (2008). "[E]ven when the outer boundaries of
a law are imprecise, such imprecision does not permit a facial
attack on the entire law by one whose conduct 'falls squarely
within the "hard core" of the [law's] proscriptions.'"
Commonwealth v. Orlando, 371 Mass. 732, 734 (1977), quoting
Broadrick v. Oklahoma, 413 U.S. 601, 608 (1973). As discussed
supra, people of common intelligence are on notice that
uncharged and untried criminal conduct amounting to an assault
and battery may render someone unsuitable for purposes of G. L.
c. 131, § 131 (d) and (f). Holden's domestic abuse of his wife
falls squarely within the hard core of the suitability standard,
and it renders him unsuitable to carry firearms in public.
Because Holden's as-applied vagueness challenge fails, his
27
facial vagueness challenge necessarily fails both standards
identified in Stevens. See Hoffman Estates, 455 U.S. at 497.
See also Hightower, 693 F.3d at 76-80.
Holden also makes a facial challenge based on the
overbreadth doctrine. Under this doctrine a law may be
invalidated under the First Amendment "as overbroad if 'a
substantial number of its applications are unconstitutional,
judged in relation to the statute's plainly legitimate sweep.'"
Stevens, 559 U.S. at 473, quoting Washington State Grange v.
Washington State Republican Party, 552 U.S. 442, 449 n.6 (2008).
We need not dwell on this point because "every court to have
expressly considered the issue" has rejected the applicability
of the overbreadth doctrine in the context of the Second
Amendment (citations omitted). Hightower, 693 F.3d at 81-83
(citations omitted). The reason for this is that the Supreme
Court has recognized facial attacks alleging overbreadth in
limited circumstances that do not include the Second Amendment
context. See id. at 82. Holden's facial attack fails.
4. Due process. Holden raises a number of procedural due
process claims that we now address. First, he claims that G. L.
c. 140, § 131 (f), is flawed because it does not provide for a
prerevocation or presuspension hearing before the licensing
authority. Generally, such a hearing is required, but not
always. The Supreme Court has recognized that "on many
28
occasions . . . where a State must act quickly, or where it
would be impractical to provide predeprivation process,
postdeprivation process satisfies the requirement of the Due
Process Clause." Gilbert v. Homar, 520 U.S. 924, 930 (1997).
"Protection of the health and safety of the public is a
paramount governmental interest which justifies administrative
action. Indeed, deprivation of property to protect the public
health and safety is '[one] of the oldest examples' of
permissible summary action." Hodel v. Virginia Surface Mining &
Reclamation Ass'n, 452 U.S. 264, 300 (1981), quoting Ewing v.
Mytinger & Casselberry, Inc., 339 U.S. 594, 599 (1950). The
Court has "traditionally accorded the [S]tates great leeway in
adopting summary procedures to protect public health and
safety." Mackey v. Montrym, 443 U.S. 1, 17 (1979). In such
circumstances, full predeprivation process is not required,
provided "prompt postdeprivation review is available for
correction of administrative error." Id. at 13. We conclude
that revocation of a license to carry without a predeprivation
hearing is justified by concerns of public health and safety.
See Kuck v. Danaher, 600 F.3d 159, 166 (2d Cir. 2010); Rabbitt
v. Leonard, 36 Conn. Supp. 108, 111, 115-116 (1979).
General Laws c. 140, § 131 (f), provides that an "applicant
or holder aggrieved by a denial, revocation or suspension of a
license . . . may, within . . . 90 days after receiving notice
29
of such denial, revocation or suspension . . . , file a petition
to obtain judicial review in the district court having
jurisdiction. . . . A justice of such court, after a hearing,
may direct that a license be issued or reinstated to the
petitioner if such justice finds that there was no reasonable
ground for denying, suspending or revoking such license and that
the petitioner is not prohibited by law from possessing same."
The Appeals Court has interpreted the statute to require an
evidentiary hearing. See Godfrey, 35 Mass. App. Ct. at 44-45;
Chief of Police of Shelburne v. Moyer, 16 Mass. App. Ct. 543,
547 (1983). Section 131 (f) affords prompt, comprehensive
postdeprivation review. Contrary to Holden's assertion,
unsupported by any authority, a District Court judge is not
limited to review of an administrative record established by the
summary action of the licensing authority. In this respect,
review under § 131 (f) is broader than review under G. L.
c. 30A, § 14. An aggrieved person 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. Moyer, supra at 546. Indeed, the evidentiary
hearing in this case was extensive, and new evidence was
offered.
30
Holden contends that the burden of proof in cases under
G. L. c. 140, § 131 (f), shifted from the applicant or the
license holder to the licensing authority as a result of the
Supreme Court's decision in McDonald, 561 U.S. at 791, which
made Heller applicable to the States. His reliance on Highland
Tap of Boston, Inc. v. Boston, 26 Mass. App. Ct. 239, 244
(1988), is misplaced. That was a case involving the First
Amendment, and we see no reason to extend the holding in the
Highland Tap decision beyond the facts of that case.
Significantly, the Supreme Court has said that "[o]utside the
criminal law area, where special concerns attend, the locus of
the burden of persuasion is normally not an issue of [F]ederal
constitutional moment." Schaffer ex rel. Schaffer v. Weast, 546
U.S. 49, 58 (2005), quoting Lavine v. Milne, 424 U.S. 577, 585
(1976). As the United States Court of Appeals for the First
Circuit said on precisely this issue, "[t]he Massachusetts
legislature could have reasonably concluded that, on review in
the district court, the burden should be placed on the aggrieved
individual, who would be in the best position to present
relevant evidence as to the suitability requirement."
Hightower, 693 F.3d at 87. For example, Holden could have shown
(but did not here) that he benefited from any number of
therapies, such as marital counselling, anger management, or
psychiatric or psychological counselling, in which he
31
successfully addressed whatever issues gave rise to the domestic
abuse that resulted in the finding of his unsuitability. See,
e.g., G. L. c. 140, § 131 (d) (ii), (iii) (allowing persons
confined for mental illness or treated for substance abuse to
present affidavit of physician indicating person is no longer
disabled, or is cured).10
Holden next argues that the chief's reliance on hearsay
evidence, both in his summary actions and in his testimony at
the evidentiary hearing, violates due process. In particular,
Holden contends he was deprived of the right to be heard "at a
meaningful time and in a meaningful manner." Armstrong v.
Manzo, 380 U.S. 545, 552 (1965). The hearsay evidence on which
the chief relied was reliable and relevant, and it was the kind
and quality of evidence on which judges often rely in probation
revocation hearings. See Durling, 407 Mass. at 120-122. The
chief testified, and he was subjected to lengthy cross-
examination. The police officer who responded to the domestic
abuse call testified to what he observed about the condition of
Holden's wife, as well as the information he received from
10
General Laws c. 140, § 131 (d) (ii) and (iii), was
amended by St. 2014, c. 284, § 48, effective January 1, 2015.
Section (d) (iii) now provides in part that a person committed
for mental illness or alcohol or substance abuse may, after five
years from the date of confinement, submit the affidavit of a
licensed physician or clinical psychologist stating that the
person is not disabled in a manner that shall prevent the
applicant from possessing a firearm, rifle, or shotgun.
Reference to the statute should be had for further details.
32
Holden's wife and daughter. He, too, was cross-examined. "The
full panoply of procedures usually available at a trial is not
required in the review by a District Court in a case of this
nature. The hearsay rule should not be applied to evidence
proffered by a chief of police in support of the reasonableness
of his denial. The test should be one of relevance." Moyer, 16
Mass. App. Ct. at 547. We discern nothing in the proceedings
before the District Court to suggest that Holden did not receive
a hearing conformably within the requirements of due process.
Holden's final claim is a reassertion of the argument that
the suitability standard permits unbridled discretion. For
reasons previously stated, we reject this claim.
5. Current cause. Holden argues that, as a matter of
substantive due process, the chief must show that he is
currently unsuitable, and that the chief's 2006 policy
impermissibly transforms the domestic abuse incident in question
into a permanent disqualification. Compare Commonwealth v.
Bruno, 432 Mass. 489, 503 (2000) (commitment of person as
sexually dangerous person turns on his "current mental
condition"); Acting Supt. of Bournewood Hosp. v. Baker, 431
Mass. 101, 105 (2000) ("aspect of immediacy of harm [in context
of civil commitment proceeding] arises from the imminency of
discharge as well as from the mental illness"); Hill,
petitioner, 422 Mass. 147, 154, cert. denied sub nom. Hill v.
33
Massachusetts, 519 U.S. 867 (1996) (continued commitment of
person as sexually dangerous requires proof that he is "still
sexually dangerous").
Although the chief denied Holden's application five years
after the domestic abuse incident, the basis for denial on the
ground of unsuitability was Holden's "violent proclivities,
anger management issues and poor decision-making." Based on the
chief's twenty-seven-year career as a police officer as of the
time he denied Holden's application in 2010, and based on
published estimates that suggest the recidivism rate among
domestic abusers ranges from forty per cent to eighty per cent,
"implying that there are substantial benefits in keeping the
most deadly weapons out of the hands" of abusers, a period of
five years following an incident of domestic abuse without
professional intervention is hardly stale evidence. United
States v. Skoien, 614 F.3d 638, 644 (7th Cir. 2010), cert.
denied, 131 S. Ct. 1674 (2011). See United States v. Booker,
644 F.3d 12, 26 (1st Cir. 2011), cert. denied, 132 S. Ct. 1538
(2012) ("Statistics bear out the Supreme Court's observation
that '[f]irearms and domestic strife are a potentially deadly
combination nationwide,'" quoting United States v. Hayes, 555
U.S. 415, 427 [2009]). We cannot say that the passage of five
years from Holden's domestic abuse of his wife, without
incident, automatically precluded the chief from relying on the
34
incident of September 10, 2005, when he denied Holden's
application on November 18, 2010. Had Holden been convicted of
assault and battery, that conviction would have disqualified him
from licensure permanently. See G. L. c. 140, § 131 (d) (i).
We are not prepared to determine, on this record, what period of
time must pass before the chief may no longer consider that
event. We note that it is within Holden's grasp to seek
appropriate professional evaluation, and, if necessary,
treatment, and provide the appropriate documentation to the
chief to alleviate his legitimate concerns about Holden's
unsuitability.
We offer no opinion about the validity of the chief's 2006
policy,11 but the issue concerning the application of that policy
was correctly disposed of by the Superior Court judge when he
concluded that there was no evidence that the chief relied on it
in his denial of Holden's application. We are satisfied that
the chief's determination of Holden's unsuitability was based on
current evidence.
6. Substantial evidence. We are also satisfied that the
decisions of the chief were based on substantial evidence. The
judgment of the Superior Court is affirmed.
So ordered.
11
Although not part of the record in this case, the chief
states in his brief that the 2006 policy is no longer in effect.