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Phipps v. Police Commissioner of Boston

Appeals Court of Massachusetts, Suffolk

January 30, 2019

RICHARD PHIPPS
v.
POLICE COMMISSIONER OF BOSTON.

          Heard: September 28, 2017

         Civil action commenced in the Supreme Judicial Court for the county of Suffolk on July 29, 2014. After transfer to the Superior Court Department, motions for judgment on the pleadings were heard by Mary K. Ames, J.

          James A. Reidy for the plaintiff.

          Katherine Sarmini Hoffman, Special Assistant Corporation Counsel, for the defendant.

          Present: Vuono, Agnes, & McDonough, JJ.

          McDONOUGH, J.

         Concerned for his safety and the protection of his property, the plaintiff, Richard Phipps, a victim of an armed robbery at his small retail business, successfully applied to the police commissioner (commissioner) of the city of Boston (city) for a license to carry a firearm pursuant to G. L. c. 140, § 131. However, the commissioner, through the city police department's (department) licensing unit, restricted Phipps's license to target practice and hunting only, uses not germane to his activities or intended purposes. At a meeting with the commander of the department's licensing unit, Phipps sought to persuade the commander to remove the restriction; instead, based upon their conversation, the commander revoked Phipps's license, deeming him no longer a suitable person to possess a license. A judge of the Dorchester Division of the Boston Municipal Court Department (BMC) denied Phipps's request for judicial review of the license revocation and restriction. Phipps sought further review in the Superior Court where, on cross motions for judgment on the pleadings, the revocation was affirmed. Because Phipps's license was restricted and then revoked based upon a generalized, subjective determination of unsuitability rather than specific, reliable information as required by our case law, and because Phipps demonstrated a proper purpose in seeking an unrestricted license, we reverse.

         Background.

         1. Facts.

         We summarize the relevant facts from the record as follows. Phipps is a resident of Boston, where he is part owner and operator of a small retail business located at Dudley Square in the Roxbury section of Boston. Phipps's duties at the store include closing the store at night and making cash deposits at a nearby bank. Previously, while closing his store one night, Phipps had been robbed at gunpoint.[1]

         In April, 2013, Phipps applied to the licensing unit of the department for a license to carry a firearm. His initial contact at the police station in the Dorchester section of Boston was Officer Angela Coleman of the firearms licensing unit, who briefly interviewed him to ascertain whether he was suitable to hold a firearms license. Officer Coleman took Phipps's handwritten application and created a new application on her computer. Despite Phipps telling Officer Coleman he needed a license for protection, Officer Coleman, on her own, typed in "sport and target" as Phipps's reason for requesting a license. In doing so, Officer Coleman explained to Phipps that because the city was "not really giving out license[s] to carry," the department issued most licenses with restrictions, and that after he received his license, he could then apply to the commander of the licensing unit to have the restriction removed. Phipps accepted this explanation and signed the application.[2]

         About five months later, Phipps received a Class A license to carry a firearm. The license was restricted to "target and hunting."[3] On September 30, acting on Officer Coleman's earlier advice, Phipps wrote a letter to the commander of the licensing unit, Lieutenant Detective John McDonough, requesting removal of the target and hunting restriction. In his letter, Phipps explained he needed an unrestricted license because (1) he is a business owner, (2) he regularly makes deposits of large sums of money, (3) he frequently must visit high crime areas in Roxbury and Dorchester, and (4) he had been the victim of crime in the past in the vicinity of his business after closing the store. By letter dated October 8, 2013, Detective McDonough denied Phipps's request, stating without explanation that Phipps had not demonstrated a "proper purpose" for holding an unrestricted license.

         According to the record of the BMC evidentiary hearing, Phipps thereafter telephoned Detective McDonough and again requested removal of the license restriction. Detective McDonough agreed to meet with Phipps at the police station so that they could speak further and directed Phipps to bring his license with him. Later that day, Phipps met with Detective McDonough in the latter's office at the police station in Dorchester. When Phipps arrived, Detective McDonough asked him for his license. Phipps handed it to McDonough, who put it in his pocket. Phipps began the meeting by telling Detective McDonough that he had written to him on Officer Coleman's recommendation as to how to remove the restriction on his license. Detective McDonough concluded that Phipps "was giving [him] the impression" that "Officer Coleman had authorized him to have an unrestricted license," that, in essence, he was "all set," and that his letter to McDonough was "just a formality."

         Finding Phipps's story "very unusual" and seeking clarification, Detective McDonough called Officer Coleman[4] into the room. After Coleman joined them, Phipps claimed that McDonough was "misunderstanding it," and that Officer Coleman had only instructed him to write the letter. McDonough then accused Phipps of "chang[ing] his story." Detective McDonough then turned the conversation to Phipps's criminal court history. Phipps had never been convicted of a crime. Between 2005 and 2010 he was charged with various crimes, mostly nonviolent, including violations for possession or possession with intent to distribute a class D controlled substance, and various automobile violations, each charge eventually dismissed.[5]McDonough testified that Phipps "downplayed his record," quoting Phipps as saying at the meeting: "Oh, it's really not that bad. It's only a little thing, minor. It's all squashed [sic]. Not -- it's all, you know, no convictions, no nothing. It's not a bad record." With a printout of Phipps's history of dismissed charges in front of him, Detective McDonough -- without showing the printout to Phipps -- asked him his number of arraignments. Phipps answered, "[F]our or five times." After Detective McDonough explained to Phipps the difference between an arrest and an arraignment, Phipps claimed he had been arraigned "three or four times." Detective McDonough testified that Phipps had been arraigned on twenty different charges.[6]

         Dissatisfied with Phipps's responses during their meeting, Detective McDonough informed Phipps he was no longer a suitable person to hold a firearms license. McDonough concluded that Phipps spoke inaccurately in their meeting by (1) leaving the "impression" with McDonough that Officer Coleman had already approved him for an unrestricted license and then "changing [his] story" when Coleman joined the meeting, (2) "downplay[ing] his [criminal] record", and (3) inaccurately reporting "his criminal history." The meeting ended with Detective McDonough keeping Phipps's license. Thereafter, Phipps received a letter from the commissioner informing him that his license to carry a firearm had been revoked based on a determination that he was an unsuitable person. As reasons therefor, the letter stated that (1) Phipps "inaccurately said [to Detective McDonough] that [Officer] Coleman had recommended that he receive an unrestricted [license to carry]," and in a meeting with both McDonough and Coleman, Phipps "changed his account," stating that "[Officer] Coleman had told him to write a letter to" McDonough; (2) Phipps "inaccurately understated the number of [his criminal] charges"; and (3) Phipps "again understated the content" of his record.

         Pursuant to G. L. c. 140, § 131 (f_), Phipps filed a petition in the BMC for judicial review of both the commissioner's decision to revoke his license and the imposition of the target and hunting restriction.[7] Following an evidentiary hearing in which Phipps, his business partner Wayne Atkinson, [8]and Detective McDonough testified, a judge denied Phipps's petition without making any findings of fact or rulings of law. Phipps then filed an action in the nature of certiorari pursuant to G. L. c. 249, § 4, in the Supreme Judicial Court, which transferred the action to the Superior Court. On cross motions for judgment on the pleadings, a judge of the Superior Court upheld the license revocation.[9] This appeal followed.

         2. Standard of review.

         a. License revocation.

         "Any applicant or holder aggrieved by a denial, revocation or suspension of a license [to carry] . . . may . . . file a petition to obtain judicial review in the district court having jurisdiction in the city or town wherein the applicant filed for, or was issued, such license." G. L. c. 140, § 131 (f_) . If relief is denied in the District Court, the petitioner may then file "an action in the nature of certiorari pursuant to G. L. c. 249, § 4," in the Superior Court. Frawley v. Police Comm'r of Cambridge, 473 Mass. 716, 727 (2016), quoting Firearms Records Bur, v. Simkin, 466 Mass. 168, 179-180 (2013) . "A District Court judge may overturn a firearms licensing decision as arbitrary or capricious where 'no reasonable ground' exists to support the decision. G. L. c. 140, § 131 (f) ." Simkin, supra at 179. "On certiorari review, the Superior Court's role is to examine the record of the [BMC] and to correct substantial errors of law apparent on the record adversely affecting material rights" (quotation omitted) . Id. at 180.

         "Judicial review of the commissioner's decision [by this court] proceeds under the same standard" as a review conducted by the Superior Court. Frawley, supra at 729. "We stand in the same position as the [Superior Court] judge below in making that determination." Id. at 729-730. "The decision by a reviewing court is a ruling of law that does not require findings of fact, determinations of credibility, or the application of administrative expertise." Id. at 729. "[A] reviewing court simply must determine whether the commissioner, on the basis of the evidence before him, abused ...


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