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.
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.
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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