After a full two-year session of discussion, a bill to improve gun safety now sits on the Governor’s desk. The bill has come a long way since the beginning of the session — it has become a bill about improving gun safety as opposed to a bill about taking away guns or making it harder to legally own guns.
Yet, while there was broad agreement on a wide range of safety measures in the two versions, at the end of the process, the final negotiations did stick on the point of lawful access to firearms. Both the House and the Senate included provisions designed to give applicants for licenses to carry handguns (LTCs) more protection from arbitrary denials by police chiefs. The crucial language appears in the rewrite of Section 131(d) of Chapter 140. The new language appears below with key new phrases bolded.
The licensing authority may deny the application or renewal of a license to carry, . . . .if, in a reasonable exercise of discretion, the licensing authority determines that the applicant or licensee is unsuitable to be issued or to continue to hold a license to carry. A determination of unsuitability shall be based on: (i) reliable and credible information that the applicant or licensee has exhibited or engaged in behavior that suggests that, if issued a license, the applicant or licensee may create a risk to public safety; or (ii) existing factors that suggest that, if issued a license, the applicant or licensee may create a risk to public safety. Upon denial of an application or renewal of a license based on a determination of unsuitability, the licensing authority shall notify the applicant in writing setting forth the specific reasons for the determination in accordance with paragraph (e).
The new language includes three important ideas — a license denial must be a “reasonable exercise of discretion”, must be based on specific criteria, and must be explained in writing. These three concepts give an applicant a much stronger hand in a appeal to a court of the denial.
While agreeing in their approach to handgun licenses, the House and Senate differed in their approach to rifle licenses: the Senate preserved the right to a rifle license without any police discretion (provided the licensee did not have a serious criminal record, a record of mental illness, etc.). The House subjected rifle licenses to a regime similar to the new regime for handgun licenses — channelled discretion. In the final compromise bill, Senator Timilty and the conferees worked out a creative intermediate approach — police chiefs will have no discretion to deny a rifle license (Firearms ID card) on their own, but may petition a court to deny an FID card. Section 30 of the bill adds this petition concept into Section 129B of Chapter 140:
. . . the licensing authority may file a petition to request that an applicant be denied the issuance or renewal of a firearm identification card, or to suspend or revoke such a card in the district court of jurisdiction. If the licensing authority files any such petition it shall be accompanied by written notice to the applicant describing the specific evidence in the petition. Such petition shall be founded upon a written statement of the reasons for supporting a finding of unsuitability pursuant to clause (iv).
(ii) Upon the filing of a petition to deny the issuance or renewal of such a card, the court shall within 90 days hold a hearing to determine if the applicant is unsuitable under clause (iv) of this paragraph. Such a petition shall serve to stay the issuance or renewal of such card pending a judicial determination thereon.
(iii) Upon the filing of a petition to suspend or revoke such a card, the court shall within 15 days determine whether there is sufficient evidence to support a finding that the applicant is unsuitable. Such petition shall serve to effect such suspension or revocation pending a judicial determination on the sufficiency of evidence. If a court determines that insufficient evidence exists to support a finding of unsuitability, the licensing authority shall not file a petition under this clause for the same applicant within 75 days of the licensing authority’s previous petition for that applicant. If a court determines that sufficient evidence exists to support a finding of unsuitability, the court shall within 75 days hold a hearing to determine if the applicant is unsuitable under clause (iv) of this paragraph; provided, further, that such initial suspension or revocation shall remain in effect pending a judicial determination thereon.
(iv) A determination of unsuitability shall be based on a preponderance of evidence that there exists: (A) reliable, articulable, and credible information that the applicant has exhibited or engaged in behavior to suggest the applicant could potentially create a risk to public safety; or (B) existing factors that suggest that the applicant could potentially create a risk to public safety. If a court enters a judgment that an applicant is unsuitable the court shall notify the applicant in a writing setting forth the specific reasons for such determination. If a court has not entered a judgment that an applicant is unsuitable under this clause within 90 days for petitions under clause (ii) or within 75 days under clause (iii), the court shall enter a judgment that the applicant is suitable for the purposes of this paragraph.
This formula won the support of both sides of the debate — police chiefs will be able to protect the public when they feel that someone who meets all legal criteria is nonetheless unsuitable, but will need to go to court to do so, a requirement which will certainly deter arbitrary FID denials. I was pleased to join in the broad support for the compromise bill, which includes a wide range of measures designed to better protect the public from gun violence.
Resources:
These seem like reasonable compromises. But all of these measures focus mainly on good guys, people already licensed or who want to be licensed. A much more important use of legislators’ time would be to focus on the bad guys, the guys acquiring guns for criminal purposes who have no use for any laws on the books. Of course, if legislators’ roles are only to pass laws rather than solve social problems, then perhaps we need to look elsewhere to solve the real problem about guns in Massachusetts.
HI Don,
I think I’ve managed to confuse you by reporting on the last sticking point. We definitely got the message that we shouldn’t be focused on the good guys. Please take a look at the links at the bottom of the post — there is much more in the bill that is targeted at the real problems, as opposed to the good guys.
Overall, this bill is a plus for lawful gun owners. That’s why GOAL supported it.
Compared to the original proposal, I am pleased with the final outcome of this bill and the process by which it evolved. It provides resolution to several longstanding issues and offers documented due process where none previously existed.
Will,
I think it’s worth pointing out that the FID covers a subset of long guns. Other types of long guns in common use require an LTC (what you call an handgun license). Further, the level of discretion the LTC hasn’t changed much. The chief must now put denials in writing and the applicant has an easier appeals process for denials.
However, f I’m reading the bill correctly, the chiefs still have the power to add restrictions to LTCs as they see fit. This means the licensing landscape will still vary significantly from town to town.
Matt, I’m not convinced that’s truly due process.
It’s also worth noting that the penalties for improper storage increased significantly.
This is, on the whole, a slight net gain for law abiding gun owners in MA. I’m, frankly, shocked that it wasn’t more similar to the NY SAFE act.
Paul,
The Heller Supreme Court ruling made the state’s FID card a non 2A compliant form of licensure. The MA Supreme Court doesn’t recognize this, and likely won’t until a case works its way up to the federal level. I suppose at that point the state will decide to split licensure into a home/target/hunting license (assuming the USSC doesn’t issue a ruling clarifying the right to bear arms outside the home) and a real LTC (no more “no carry” licenses to carry from Boston/Brookline/etc).
It is my understanding that a chief will now be required in writing to explain restrictions/denials of a LTC. Any restriction/denial may be challenged in court with the burden of proof being on the issuing authority and the judiciary given a limit 90 days to issue a decision or the plaintiff will be granted their LTC/restrictions removed automatically.
I consider shifting of decisions from an undocumented and potentially arbitrary process by a local chief to a documented court proceeding due process. Albeit still a gross civil rights violation for anyone that isn’t a convicted felon or clinically determined to be mentally ill.
As far as the penalties for improper storage, I don’t really mind those so much. A firearm should always be properly stowed in your hand, holster, or a safe. Not that criminals follow laws in the first place. But I suppose such penalties are a way of labeling this as a “safety” bill when is still primarily a “control” bill.
A real “safety” bill would have included:
Funding for the Eddie Eagle week in October for every elementary/middle school in the commonwealth.
Some sort of firearms ed/shooting sports/(JROTC?) in H.S. along the lines of drivers/sex ed/athletics.
Minimum standards/inspections for firing range construction, maintenance, air quality/cleanliness.
Defining ‘unintended incidents’ legally as “negligent” rather than “accidental”. (more of a peeve of mine)
&
In terms of public safety doing something about the revolving door for repeat offenders with a litany of weapons charges. This bill sort of attempts this with some tougher penalties, but I don’t think the changes in penalties alone will help significantly with the “catch & release” issue.
Matt,
I agree with all (or most) of that, especially the part about FIDs not being compliant with Heller (either before or after this new bill).
The increased penalties for storage violations aren’t the worst thing the legislature could have done, but I’m still not in favor of them for these reasons. One is that ammunition is also supposed to be stored in a locked container and that *includes components*. There was a case where a man in Lowell was away on vacation and his house was broken into. He had all his firearms stored in a very secure vault and the thieves spent days breaking into it. The owner of the guns was cited after on a storage violation because there was an empty brass casing sitting on his workbench. That’s simply “not right”.
I also don’t like the wording about “unforeseen trespass”. It’s too open to interpretation. Further, the whole part of the statute effectively punishes a person for failing to prevent a crime. I don’t agree with that sort of philosophy even though I agree that firearms should be locked in a safe to avoid unauthorized access.
It will be important to see how the new court processes for both FIDs and LTCs work out. We’ll have to live into all the changes a bit and see how they work in practice. We do the best we can with legislation like this, but it takes a few years to really be sure whether or not all the pieces work as intended.