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Essex Regional Retirement Board v. Justices of Salem Division of District Court Department of Trial Court

Appeals Court of Massachusetts, Essex

July 12, 2017

ESSEX REGIONAL RETIREMENT BOARD
v.
JUSTICES OF THE SALEM DIVISION OF THE DISTRICT COURT DEPARTMENT OF THE TRIAL COURT [1] & another. [2]

          Heard: March 8, 2017.

         Civil 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.

          Thomas C. Fallon for John Swallow.

          Present: Grainger, Blake, & Neyman, JJ. [3]

          GRAINGER, J.

         The 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.

         Background.

         We 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.

         On the 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 neighbors' house.

         Swallow 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 bedroom.[4]

         As a 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.

         The 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 Court ...


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