The final compromise on firearms licensing rules (7 Responses)

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.

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    Will Brownsberger
    State Senator
    2d Suffolk and Middlesex District