Heard: March 8, 2017.
action commenced in the Superior Court Department on July 14,
2015. The case was heard by James F. Lang, J., on motions for
judgment on the pleadings.
Michael Sacco for the plaintiff.
C. Fallon for John Swallow.
Present: Grainger, Blake, & Neyman, JJ. 
plaintiff, Essex Regional Retirement Board (board), appeals
from a judgment allowing a motion for judgment on the
pleadings in favor of defendant John Swallow. The board
determined that Swallow's convictions of various criminal
offenses committed in October, 2012, while on administrative
leave, render him ineligible to receive a retirement
allowance pursuant to G. L. c. 32, § 15(4). We agree,
and conclude that Swallow's convictions fall within the
purview of § 15(4). We remand the case for consideration
of the constitutionality of the assessed penalty under the
Eighth Amendment to the United States Constitution.
summarize the procedural history and the underlying relevant
facts which are undisputed. In June, 2012, Swallow was placed
on administrative leave from his duties as a sergeant in the
Manchester police department. At that time he was also
suspended from a second job he held as a paramedic with
Northeast Regional Ambulance Service. Although Swallow left
his badge and his service handgun at the police station, his
license to carry a firearm was not suspended at that point.
After being placed on administrative leave, Swallow
experienced significant depression and began drinking heavily
on a daily basis.
afternoon of October 26, 2012, Swallow was at home with his
wife, Lauren Noonan. He was drinking heavily and the couple
began arguing, initially because Noonan was concerned that
Swallow might drive his car. The quarrel escalated; Noonan
went to her bedroom and sat on the bed with one of her dogs.
Swallow then entered the room with a .45 caliber handgun, and
grabbed Noonan by the shirt. He began screaming at her, and
waved the gun in her face. He then pointed the gun at the dog
and threatened to kill it. Noonan stood up, pushed past
Swallow and left the house, walking to her next door
neighbors' house. While in the neighbors' driveway,
she heard a gunshot and telephoned the police from the
apparently had fired the gun into a door, then put the gun
down, walked outside, and sat on the front steps of the
house. The Beverly police arrived in response to Noonan's
summons and placed Swallow under arrest. The police recovered
the fired bullet in the upstairs bedroom. A search of the
house revealed numerous guns and other weapons in the
result of this incident, Swallow admitted to sufficient facts
on the following charges: (1) assault and battery, in
violation of G. L. c. 265, § 13A(a), (2)
discharge of a firearm within 500 feet of a building, in
violation of G. L. c. 269, § 12E, (3) assault
by means of a dangerous weapon, in violation of G. L. c. 265,
§ 15B(b), (4) three counts of improper storage of a
firearm, in violation of G. L. c. 140, § 131L(a) and
(b), and (5) intimidation of a witness, in violation of G. L.
c. 268, § 13B.
board determined that Swallow's criminal convictions were
violations of laws applicable to the office or position of a
police officer as defined in G. L. c. 32, § 15(4), thus
requiring forfeiture of his pension. Swallow appealed the
board's decision to the District Court; on cross motions
for judgment on the pleadings, the District Court judge
reversed the board's decision, finding that there was
"no evidence of any direct link" between
Swallow's criminal convictions and his employment. The
board's petition to the Superior Court was certified
pursuant to G. L. c. 249, § 4. A judge of the Superior