DASILVEIRA v. POLICE COMMISSIONER OF BOSTON (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

The plaintiff, Vargas I. DaSilveira, applied for a license to carry a firearm.³ After an investigation conducted by his designee, Lieutenant Detective John McDonough, the Boston Police Commissioner (commissioner) denied the application on the basis that DaSilveira was “unsuitable,” pursuant to G. L. c. 140, § 131. DaSilveira appealed, pursuant to G. L. c. 140, § 131 (f), to the Boston Municipal Court. After a hearing, a Boston Municipal Court judge affirmed. DaSilveira then filed a complaint for certiorari in Superior Court, pursuant to G. L. c. 249, § 4. A hearing was held after the parties submitted cross motions for judgment on the pleadings. A Superior Court judge ruled in favor of the commissioner. On appeal from the Superior Court judgment, DaSilveira contends that the commissioner's decision was arbitrary and capricious because it was based on a twenty-five year old charge that was ultimately dismissed. We affirm.

Discussion. When reviewing a denial of an application for a license to carry, a Boston Municipal Court judge, after an evidentiary hearing, may direct the licensing authority to issue a license only if the judge finds that the licensing authority had “no reasonable ground” for denying the license and that the applicant “is not prohibited by law from possessing [the same].” G. L. c. 140, § 131 (f). See Chardin v. Police Comm'r of Boston, 465 Mass. 314, 317 (2013). A finding that the licensing authority lacked any reasonable ground to deny the license “is warranted only upon a showing by the applicant that the licensing authority's ‘refusal [to grant ․ the license] was arbitrary, capricious, or an abuse of discretion.’ ” Godfrey v. Chief of Police of Wellesley, 35 Mass. App. Ct. 42, 46 (1993), quoting Chief of Police of Shelburne v. Moyer, 16 Mass. App. Ct. 543, 546 (1983).

“On certiorari review, a Superior Court judge may ‘correct only a substantial error of law, evidenced by the record, which adversely affects a material right of the plaintiff.’ ” Nichols v. Chief of Police of Natick, 94 Mass. App. Ct. 739, 744 (2019), quoting Chardin, 465 Mass. at 321 n.15. Our review is governed by the same standard.⁴ See Nichols, supra, quoting Frawley v. Police Comm'r of Cambridge, 473 Mass. 716, 729 (2016) (“Judicial review ․ proceeds under the same standard whether conducted by [the appellate] court or ․ the Superior Court”). Thus, our task is to review the facts as found by the Boston Municipal Court judge to determine whether a substantial error of law was made when she affirmed the commissioner's denial of DaSilveira's application. See Nichols, supra at 745.

The commissioner denied DaSilveira's application for a license to carry a firearm on the ground that DaSilveira was “unsuitable” based on a police report stating he had “obtained a firearm for revenge” and had a “lengthy criminal history includ[ing] firearm charges.” DaSilveira argues this was arbitrary and capricious because the only firearm charge on his record was twenty-five years old and resulted in a continuance without a finding (CWOF), which was ultimately dismissed. DaSilveira claims that the commissioner's decision effectively imposes a lifetime bar on DaSilveira even though he is not a categorically prohibited person under the statute.

“The goal of firearms control legislation in Massachusetts is to limit access to deadly weapons by irresponsible persons.” Ruggiero v. Police Comm'r of Boston, 18 Mass. App. Ct. 256, 258 (1984). The licensing statute, G. L. c. 140, § 131, sets forth certain categories of individuals who are automatically barred from obtaining a license to carry. In addition, it allows a licensing authority to deny an application “if, in a reasonable exercise of discretion, the licensing authority determines that the applicant or licensee is unsuitable to be issued ․ a license to carry.” G. L. c. 140, § 131 (d). Thus, “a person may be found unsuitable for a variety of reasons, including conduct that falls outside of the enumerated disqualifiers and conduct that falls short of criminal behavior.” Firearms Records Bur. v. Simkin, 466 Mass. 168, 180 (2013). The statute aims to prevent firearms from being in the hands of those who are not categorically disqualified, e.g., convicted felons, but who nevertheless pose a palpable risk to public safety. See Chief of Police of Worcester v. Holden, 470 Mass. 845, 854 (2015). DaSilveira bore the burden to produce substantial evidence that he was suitable to carry a firearm. See Moyer, 16 Mass. App. Ct. at 546.

In 1992, DaSilveira was charged with carrying a firearm without a license, pursuant to G. L. c. 269, § 10 (a). He was found guilty of that charge after a bench trial. If nothing else had occurred, DaSilveira would have been automatically disqualified from obtaining a license to carry a firearm. See G. L. c. 140, § 131 (d) (i) (A), (B), (D).

Following his conviction, however, DaSilveira filed a motion for a new trial, which was allowed. He was convicted of the reduced charge of illegal possession of a firearm, pursuant to G. L. c. 269, § 10 (h).⁵ The conviction was revised and revoked to a CWOF, which was dismissed in 1995. As a result of the dismissal, DaSilveira was not categorically prohibited under G. L. c. 140, § 131 (d).

The dismissal of the charge, however, did not prohibit McDonough from considering the underlying facts of his charge. See Holden, 470 Mass. at 856, 864; DeLuca v. Chief of Police of Newton, 415 Mass. 155, 159-160 (1993). An arrest report indicated that the charge arose from DaSilveira's desire to avenge his brother's stabbing. From this investigation, the commissioner reasonably could conclude that allowing DaSilveira a license to carry presents a palpable risk to public safety.⁶ See Ruggiero, 18 Mass. App. Ct. at 259 (“In performing its task, the licensing authority is given considerable latitude”). See, e.g., Godfrey, 35 Mass. App. Ct. at 47-48 (reasonable to find unsuitability based on applicant's refusal to cooperate with police investigation on shots fired near school); MacNutt v. Police Comm'r of Boston, 30 Mass. App. Ct. 632, 636 (1991) (not abuse of discretion to base suitability on required firing test); Moyer, 16 Mass. App. Ct. at 545-546 (applicant's ultimately dismissed charge of illegal possession of marijuana could properly be considered by commissioner as reasonable grounds to deny license even after conviction ordered sealed).

DaSilveira did not contest the police report underlying his charge, and argued only that the charge was twenty-five years old -- a fact McDonough considered despite his conclusion that DaSilveira was unsuitable. Alone, this does not render the commissioner's denial arbitrary. See Nichols, 94 Mass. App. Ct. at 746 (“licensing authorities are not required to provide denied applicants a definitive time period in which a past act will no longer render the applicant unsuitable”). Simply because the commissioner could have decided in favor of DaSilveira does not mean that the commissioner's denial was not based on reasonable grounds. See Chief of Police of Taunton v. Caras, 95 Mass. App. Ct. 182, 187 (2019) (District Court judge improperly reversed chief's revocation for unsuitability even though “chief, in his discretion, could have taken the same view of the circumstances as the District Court judge and could have chosen not to revoke [the petitioner's] license” where record showed petitioner held valid license to carry for about fifty years without problems and one incident could have merely been “aberration” in his life).

Judgment affirmed.

FOOTNOTES

3.   Class A large capacity.

4.   In view of our standard of review, we need not reach DaSilveira's contention that the Superior Court judge exceeded her authority under G. L. c. 249, § 4, by questioning the validity of the continuance without a finding (CWOF). We note that the CWOF was not challenged at the Boston Municipal Court, and docket entries are presumptively reliable. See Commonwealth v. MacDonald, 435 Mass. 1005, 1007 (2001) (“Docket entries are prima facie evidence of the facts recorded therein”). See also Nichols, 94 Mass. App. Ct. at 745 (Superior Court judge erred in making factual finding where District Court already made them). Similarly, the Superior Court judge's factual error referring to DaSilveira's amended charge as “G. L. c. 269, § 10 (b), also a felony” is immaterial to our review.

5.   DaSilveira's conviction of illegal possession of a firearm under G. L. c. 269, § 10 (h), although no longer a felony or misdemeanor that would have automatically disqualified him, still would have been “a violation of any law regulating the use [or] possession ․ of weapons” that categorically prohibits an individual from obtaining a license to carry a firearm. G. L. c. 140, § 131 (d) (i) (D).

6.   Although DaSilveira offered other licenses and character reference letters to show his suitability, these documents were not submitted to the commissioner as part of DaSilveira's application.