WBUR

In Mass., Gun Permit Standards Vary By Location

BOSTON — As the Legislature takes up reforms to the state’s gun control laws, policymakers are taking a close look at the authority local police chiefs exercise over gun permits.

While some lawmakers want to expand that authority, courts are raising new legal questions about whether it may be too arbitrary — and even unconstitutional.

Varied Standards

David Martineau, deputy chief at the police department in the small town of Avon, says there are some basics to getting an unrestricted Class A gun license in his community: You must complete a certified gun safety course, pay a $100 fee, provide fingerprints and submit two letters of reference attesting to your suitability to own firearms.

“Just that you’re a standup guy and they have no reservations about you having a gun,” Martineau explained.

An unrestricted Class A license is the broadest of three types available under state law. It allows a resident to have rifles, shotguns and large-capacity handguns.

State and federal law can bar firearm ownership on several grounds. Those exclusions include, for instance, any conviction on charges that carry maximum penalties of two years or more, or an involuntary commitment to a mental institution.

But other than the specific statutory prohibitions, Martineau says, determination of an Avon resident’s suitability to own a handgun is really his call.

“I’m pretty lenient,” he said. “I figure statutorily if you’re allowed to have it, who am I?”

But if there are doubts about someone’s history, licensing authorities such as Martineau may consult arresting officers, victims, family and friends.

“I mean, domestic abuse. If I get the reports and I read you smacked your old lady around or whatever and she refused to testify — which happens a lot of times — then I might preclude you from getting it,” Martineau explained.

Deputy Chief Martineau may be lenient as a matter of course, but some of his colleagues are not. Some police departments don’t make any checks beyond the statutory exclusions. In others, they won’t even consider an unrestricted license for a first-time gun owner.

Lt. John McDonough oversees the Boston Police Department’s licensing authority. He says his department is one of only a few in the state that require an applicant to pass a live-fire test.

“A lot of first-time applicants, they come, they sit for the process, they go through it. And then they don’t go to the range,” McDonough said. “That’s probably the overwhelming reason that we deny folks” – denials that wouldn’t happen in most other Massachusetts jurisdictions, which do not have the live-fire test.

Defining Suitability 

Now, a special gun control task force appointed by Massachusetts House Speaker Robert DeLeo wants to provide more uniformity in the way suitability decisions are made. The group is proposing a special panel of police chiefs and regulators to come up with new standards.

That doesn’t sit well with the Gun Owners’ Action League of Massachusetts. The NRA affiliate doesn’t like the police’s authority over suitability in the first place. But its executive director, Jim Wallace, doesn’t like the new panel either.

“Some chiefs put roadblocks in front of you on purpose knowing you can’t get over those hurdles in order to get your unrestricted license,” Wallace said. “So we’re asking people who have abused the system to actually come up with the definitions and I think that’s a backwards way of looking at things.”

Even the Massachusetts Chiefs of Police Association acknowledges that suitability can vary depending on geography.

“Suitability is not well-defined in the statute,” said Jack Collins, the group’s legal counsel. Most license denials, he says, are legitimate responses to a local chief’s detailed knowledge of his or her own community, and the circumstances which might make someone a poor bet for gun ownership.

“Some people have had ideas about suitability that quite frankly are a little less defensible than others,” Collins said. “So working over the years with the Legislature, we’ve gotten the message that if we don’t keep people in line, if they don’t use some common sense on suitability, then quite frankly the Legislature might take it away.”

Or maybe the courts will. Just a month ago, a Superior Court judge ordered New Bedford’s police chief to issue a license to carry to a man he had determined “unsuitable.” A former anti-abortion activist, Jonathan Hill’s record included a string of misdemeanor civil disobedience arrests back in the 1980s, and an assault and battery charge that was dismissed.

Today, Hill is a business owner, and he says he needs a gun to protect his laundromat where there’s been an armed robbery and a stabbing.

“Just last Thursday near the laundromat a cab driver was pulled out of his cab and was stabbed and robbed,” Hill said. “So it is a high-crime area and I would like the option to carry the gun — just for deterrence primarily and I really don’t want to have to hurt anyone. But you know, you do what you have to do.”

Hill challenged the license denial in light of a 2008 U.S. Supreme Court decision, District of Columbia v. Heller, which established an individual right to bear arms in cases of confrontation.

Superior Court Judge Richard Moses relied on state law, though, when he found that the license denial was arbitrary, and ordered the police chief to issue it. Still, Judge Moses also repeatedly referenced the federal Heller decision, and Collins, the counsel for the police chief association, says that may be a signal the issue isn’t decided.

“Unless they have a mental health problem or a criminal conviction that bars them, the judge is speculating that Massachusetts no longer can impose suitability as a standard. That’s a possibility and he’s right about that,” Collins said.

Police officers such as McDonough and Martineau hope it doesn’t come to that. It’s unclear when the next test may come — New Bedford did not submit an appeal by Monday’s deadline.

But gun rights group Comm2A, which helped Hill in his case, is assisting in several federal suits that challenge the constitutionality of Massachusetts’ license to carry laws.

Correction: Poor wording in an earlier version of this report made it seem that Class A licenses allow for conceal-carry of rifles and shotguns. That is not the case and we regret the error.

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  • StevieP65

    “An unrestricted Class A license is the broadest of three types available
    under state law — it allows a resident to carry a concealed weapon,
    including rifles, shotguns and high-capacity handgun.”

    Copy editor asleep at the wheel there at WBUR? The LTC allows people to BUY rifles, shotguns, and handguns. But no, people are not allowed to conceal carry their rifle or shotgun. Nobody does this, and the statement as written will only serve to scare the sheeple.

    • aj

      Besides that mess up, it was still a well written article. I’m a huge 2a supporter for the record. Reading the defining suitability paragraph gave me optimism that suitability may be coming to an end. Plus they gave a shout out to comm2a.

      • fun bobby

        we are in MA, given the report this taskforce has already produced it looks like they want to double down on insane gun laws

    • WBUR

      Thanks for catching our poor wording. We have fixed the copy.

      • StevieP65

        Thank you. Overall, this was a very positive article. I didn’t mean to come across as snarky. Just wanted to make sure it was accurate. Thanks again.

        • fun bobby

          its nice they covered this at all

  • X-Ray

    Chiefs in some towns have a policy of not issuing any new LTC permits for
    qualified individuals except under severe and unwarranted restrictions, such as
    having the weapons stored only at gun clubs or restricting their use only for
    target practice. That was not the intention of the State licensing statutes, and
    certainly is not compliant with the 2nd Amendment. It also makes licensing
    non-uniform across the State and is unlawfully discriminatory. It should not
    require the expense and delay of bringing a legal proceeding to get a LTC.

  • Full Name

    The Supreme Court struck down arbitrary standards as used in California: http://www.reuters.com/article/2014/02/14/us-usa-guns-california-idUSBREA1D03D20140214

    • PaulD

      Unfortunately, that was not the Supreme Court. It was the 9th Circuit Court of Appeals.

  • Kimber_TLE

    You must complete a certified gun safety course, pay a $100 fee..

    Ah, racism at its finest!

    Seriously. Those on the Left complain that “voter ID” is racist because it places burdens on the low-income and minorities – and often claim it’s because of the cost even if the ID is issued free.

    So how can forcing a citizen to (1) pay for a certified gun safety class and (2) pay a fee, be directed at anyone other than low-income, minority citizens? This is clearly an attempt to disarm the very people who need weapons for self defense the most.

    Where are the Reverend Jessie Jackson and Al Sharpton? Why aren’t they screaming at the top of their lungs? This is discrimination, plain and simple!

    ______________________________________________________________
    We return you now to the reality of your choice, already in progress…

    • Richard Hussong

      I can’t speak for Jesse Jackson or Al Sharpton, of course, but I am free to speculate, and I would hazard a guess that they are not taking your side on this issue because they don’t believe that it would actually improve the life of those they represent if it became easier for people, including low-income and minority people, to acquire firearms. I don’t care enough to do it, but I’m sure there is a way to get your question to them or their spokesmen; maybe they would even answer.

      • PaulD

        You mean that Al and Jesse would be fine with putting up expensive monetary barriers to a law abiding person of limited income to exercising their constitutional rights? That would seem at odds with their basic charters.

        • Richard Hussong

          They may not think that the second amendment is a good thing; who knows? If you thought that one of our constitutional rights was harmful, you might be fine with putting up barriers to its exercise, as well. I certainly don’t know this to be the case with Jackson and Sharpton, but it surely is not impossible.

          • PaulD

            Well, first, I think that both Al Sharpton and Jesse Jackson are so intellectually dishonest, hypocritical and generally unintelligent that I don’t care what they think. As for the BoR, I celebrate the whole thing. If I wanted to put up barriers to any of the rights therein, I’d pursue it via the channels that were put in place when the country was founded, that being the Constitutional Convention.

            In any event, poor, law abiding people should be able to exercise their rights just as rich, law abiding people can.

    • fun bobby

      not to mention that there is a total of one public range in the state and its not accessible by public transit. what if only people who could drive halfway across the state a spend a few hundred bucks to apply to vote and then have to wait a year or two to find out if he decides he feels like giving it to them

  • PaulD

    The wording in this article relating to the Heller decision is a bit off. The Heller decision stated that a person has a right to keep a handgun in the home for self defense. There are other cases going through the court systems that will address the right to bear arms outside the home, including the recent 9th Circuit case.

    That said, MA isn’t truly compliant with Heller. The licenses this article is talking about, LTCs, are the ones required to own a handgun and those licenses are at the discretion of the local chief of police. If a person has a right to own a handgun per the 2nd Amendment (as determined in Heller), there needs to be due process to take that right away and we don’t have that in MA. A chief can take that right away for basically any reason he or she deems appropriate. No judge, no jury.

    Our Supreme Judicial Court came up with an absolutely bizarre decision stating we are in compliance with Heller due to a “permit to purchase”. This is a permit that allows an FID holder to purchase one handgun per issuance. There’s no record of one of these ever having been issued. So that means that any legal handgun owner in MA can have his right to own that handgun taken away at any moment, for any reason, by the local chief.

    • D. G.

      There should also be a process in place whereby an applicant can, by request of the applicant, secure a face-to-face interview with the Licensing Authority (the local Police Chief) at the time of application, so as to jointly review any issues of concerning the applicant’s history such that the applicant is then apprised of what proactive steps he can take to achieve suitability. The very notion of “suitable/non-suitable” is an absurdly rigid dichotomy which does not in fact serve the public interest. Being labeled “no-suitable” in MA is to some extent, a difficult to escape scarlet letter, which brand a person as a 2nd class citizen. To have a category known a “non-suitable”, but to not have a clear-cut path out of that status, is, I would say, unacceptable in a system where rights (not privileges) are at issue.

      • PaulD

        The licensing process already includes a face to face interview with the licensing authority, which is usually a subordinate designated by the local chief. However, I think it’s quite inadvisable to ask for legal advice or review from a police officer. There are lawyers in MA who specialize in this area of law and they would be a much better resource for this.

        To my knowledge, there’s no real way to “achieve suitability” anyway. As a practical matter, you need to achieve the pre-requisites (take a course, get letters of reference, etc) and if you have something in your past that the local chief wants to hold against you (such as a restraining, something you did as a minor or other arrest history) you’re done. You’re not going to get a license unless, possibly, you move to another town and that chief has different standards.

        The problem with that line of thinking though is that this IS A RIGHT. It has been found to be a right by the US Supreme Court. Nobody would accept that for any other right. Rule of law says there should be due process, instead of what is essentially an appointed bureaucrat taking away your rights on a whim with no true recourse.

        • D. G.

          The current scheme of “suitability” would be valid if there were a clearly articulated, reasonable path to attaining suitability – one which is formulated at the state level, and followed by all Licensing Authorities (Police Chiefs). The idea that a local chief has a boots on the ground viewpoint is not without merit. The problem is the lack of intellectual honesty as to how it’s implemented and the variations from town to town.

          • PaulD

            It’s still not valid without due process. The Heller decision was incorporated against the states and says a person has an individual right to own a handgun. In Massachusetts, the LTC is issued at the approval of a police officer and can be rescinded solely on his decision. Even if the state publishes standards for the chiefs to follow, there still has to be due process (ie. a trial) before that right can be removed for due process to have been followed.

            As for “boots on the ground”, we should really stay away from military analogies when talking about police, but no, a chief does not have intimate knowledge of every person in the town or city (s)he serves. If (s)he can make a character judgement on that level, why do we have courts?

          • D. G.

            You misunderstand. What I am saying is that “may issue” could be a valid scheme if and only if, there is a defined path to suitability. If not, then it’s an invalid scheme, but not mainly for due process reasons. “May issue”, as practiced in MA, is actually a de facto Bill of Attainder system and as such, it violates the Constitution at Article I, Section 9, Clause 3. Here’s how: The Licensing Authorities, because they must use some criteria (or at least one criterion) to weigh decisions against (non-arbitrary decisions are impossible without them), are, unless they use the same decision factors each time; promulgating an individualized law each time they make a suitability determination. And this also results in non-equal protection. If one set of standards is applied to you, and another to me… well you see. But a correct process could cure this, which is what I said. Giving a licensing authority some say over suitability to carry a loaded handgun in public is not unreasonable and is not an infringement. But shunting the “unsuitable” aside without a pre-specified pathway to suitability, that’s definitely not any good. But the real linchpin is that “may issue” is a de facto Bill of Attainder system.

          • PaulD

            What you’re saying is fine and how many other states work. The part you’re missing is that “LTC” is a misnomer. In MA, an LTC is required to *own* a handgun, period. So if the chief decides it, your right to own a handgun can be rescinded with no due process. If you keep a handgun in MA with no LTC, that is a felony. This is relatively unique to MA and is not compliant with Heller.

            If this were a question solely about concealed carry, and not ownership, I wouldn’t argue against your point nearly as much.

            That said, read the Peruta v. Gore decision.

          • winkelrotaryengine

            An LTC is not required to *OWN* a pistol. A LTC or License to Carry is a common term used to describe an unrestricted Class A (Large Capacity) firearms license. You can legally own a pistol with a Class B (Non-Large Capacity) firearms permit. A Class B restricts you from concealed carry. A restricted Class A also restricts you from concealed carry but does allow you to purchase and possess magazines that hold over 10 rounds, provided they were manufactured before 1994.

          • fun bobby

            class B is also a may issue license and therefor unconstitutional

          • PaulD

            No. LTC encompasses both A and B. Both are called “LTC” and both are subject to the discretion of the licensing authority (the local chief), which is the the real point. As mentioned in other posts, the only way to own a handgun with no LTC (A or B) is a “permit to purchase” which is a legal fiction. They simply don’t exist and allow someone to keep a handgun, but not actually use it at a gun range.

          • D. G.

            No, an LTC is not required to own a handgun. You can own one, but only in your home, with just an FID. But to buy one, or have one transferred to you by an in-state person or dealer, you need a “permit to purchase”. However, in MA, since 1998 (when they first came out), there has never once been any “permit to purchase” issued in all of MA.

          • PaulD

            Yes, I know that and I mentioned it in my first comment on this article. As a practical matter though, the permit to purchase is a complete legal fiction. As you mention they don’t exist in the wild and further, who would want to own a handgun with no ability to take it anywhere and practice? That’s completely at odds with the state’s philosophy of gun owners needing to be qualified.

            So, in reality, every single legal handgun owner in MA *does* own them via an LTC and that means the local chief can rescind that right at his discretion. Further, if an LTC does get rescinded, no other chief is going to give that person a permit to purchase.

            Once again, having a constitutionally guaranteed right granted only at the discretion of a bureaucrat (whether there’s a published standard or not) is not how things are supposed to work here. We would never accept it if it applied any of the others in the BoR, so why do we accept it for the 2nd?

          • D. G.

            In MA, it’s currently the law that a non-convicted person is “shall issue” for an FID. and, due to the Supreme Court cases of Heller (DC) and McDonald (Chicago), non-criminals have a Constitutional right (which trumps all state laws) to own a handgun in their homes. For this reason, I think that any FID holder who applied for a “permit to purchase” would have a winning case, if he were denied. The reason why the gun-grabbing Liberals are currently scrambling in MA, and they are talking about the recent NEU (Jack McDevitt committee) report is that they are looking to avoid any “shall issue” pistol permits. But based on the USSC, there’s no escaping them. Before you know it, MA is going to have a “shall issue” system, at least for in-home ownership of handguns (and of course, ammunition). And as soon as this happens, MA will be left defending the absurd proposition that a person who owns a handgun at home, should not be allowed to “carry” it to the gun range. Or from the gun range, somewhere else, and so on. Make no mistake about it: Heller and McDonald have turned the tables, and MA gun-grabbers no longer have the unilateral power they once had. You should read this:
            http://suffolklawreview.org/driscoll-firearms/

          • D. G.

            Your points are valid, but the correct wedge to push on would be “permit to purchase”. All previously LTC denied applicants in MA should now apply for a permit to purchased (if they have no criminal convictions). Then, if they are denied the PP, they can sue in district court and they will win (perhaps they might have to appeal to superior court) based on Heller/McDonald. It’s inescapable that in-home handgun is a undeniable right to a non-disqualified person. Once a person goes this route, the PP will get them a handgun for home and a year or so of handgun ownership will prove that they are not inclined to break the law with that gun. This proof of successful ownership will trump any subsequent arguments against at minimum, a class B. Then after having B for about a year, that would undercut arguments against A. What I am describing is the pathway which, if multiple people took it, would result in the case law which would end up deflating the current “may issue” system. What just described is clearly an “infringement” and would not be allowed to persist.

          • PaulD

            I do like your line of thinking here. Unfortunately it requires that someone volunteer to be the test case. That can be a very painful process to live through and I certainly wouldn’t envy that person. Also, most people who want to obtain a gun legally want to do so for practical purposes, like taking it to the range. So they go for the LTC.

            The cynic in me says the whole system was set up like this on purpose.

          • fun bobby

            are you a lawyer?

          • D. G.

            No. But I am in MA and I once used that exact argument to win an LTC denial in District Court (the initial denial was against me). The judge took one look at my papers, read my argument, and sent me and the Police Chief into the hallway for a conference. After a short conversation, the chief gave in and agreed to issue.

          • fun bobby

            count your lucky stars.

          • fun bobby

            and the idea that they know everyone in a big city is insane

        • fun bobby

          its also double jeopardy because you can be not convicted of anything then 20 years later a police chief can decide to take away your rights based on their whim

      • fun bobby

        you would think so. they violate the law in many ways and there is no effective recourse in MA

    • fun bobby

      I am pretty up on firearms laws in ma. I have never heard of that can you direct me to so me info about it?

  • Bill305

    Lt. John McDonough “And then they don’t go to the range” defines this as an excuse to deny a person his/her constitutional right. It’s not a MA or federal requirement to live-fire. Moreover, I’m willing to bet that the average gun owner goes to the range more often than the average police officer!

    • PaulD

      Certainly if the NYPD is any indication, police officers should practice a lot more.

      Also, how is a Boston resident supposed to practice for an upcoming live fire test when they don’t have an LTC? They can’t legally buy a gun or ammunition. Their only choice is to hopefully have a friend who will take them to the range, or go to a rental range and the closes ones are in Attleboro and Manchester NH. That’s quite a burden to put on someone who is trying to exercise a right.

      • fun bobby

        and that’s why they do it. its to keep poor (and consequently a disproportionate number of people of color) from getting their permit to exercise a fundamental right

    • Dana Seero

      A Boston resident often has restrictions on their LCF, while a resident of another city or town may carry a concealed firearm in Boston perfectly legally.

      The city bears the cost and ties up police resources testing thousands of LCF applicants per year at a time when those police resources might be better used to fight street crime.

    • fun bobby

      also they do not mention that there exists a total of one public range where someone could practice in the entire state. and its not exactly accessible by public transportation. that ought to keep poor people from exercising their rights right?

  • David F

    I was disappointed that the article did not point out that the police chiefs requiring a live fire qualification are in direct violation of MA law.

    Brookline is also notorious for requiring LTC first time applicants and those renewing to go through a live fire qualification, one which I have been told is extremely biased against the applicant.

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  • D. G.

    #352 is the Colonel of the Ma State Police, not the FRB.

  • D. G.

    No, it licenses you to buy large capacity handguns, rifles, shotguns of any manufacture date, and also high capacity magazines, if manufactured before 1994.

    • winkelrotaryengine

      Technically only magazines can be “high capacity”. Rifles, shotguns, and pistols fed with box type magazines do not have a capacity.

  • Hadris Ellsberg

    The ability to defend against domestic terrorists like Floyd Corkins is another key advantage of the 2nd Amendment: http://youtu.be/__pJvdr25P0

  • fun bobby

    WBUR does anyways. NPR failed to mention when the Chicago gun laws were overturned recently and when the California laws were overturned recently

  • fun bobby

    if everyone who listens to WBUR can see that what we are doing is insane and wrong maybe we do have a shot at ending this terrible injustice that has gone on far too long

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