The Effects of Suppressed Evidence, Dismissed Charges, and Confidential Informants in Consideration of an Application for License to Carry

In Chief of Police of Wakefield v. DeSisto (Massachusetts Appeals Court No. 20-P-1052, June 21, 2021), the Massachusetts Appeals Court considered the relevance of dismissed criminal charges and suppressed evidence with respect to an application for a license to carry a firearm. 

Facts: Adam DeSisto was issued a License to Carry (LTC) in 2006. In 2011 Wakefield police officers observed DeSisto participate in two transactions involving Percocet, a controlled substance, with a confidential informant. DeSisto was not charged as a result of those incidents.

In 2012 the police stopped a vehicle DeSisto was driving after a passenger in the vehicle engaged in what appeared to the police to be a drug transaction. The passenger explained that he was helping DeSisto who was “drug sick." DeSisto was charged with possession of one-half gram of heroin that was found on the ground near the vehicle. Ultimately that charge was dismissed after a motion to suppress the heroine was allowed by agreement of DeSisto and the Commonwealth.

That year the relevant licensing authority revoked DeSisto's LTC after determining that DeSisto was not suitable to possess a firearm.

In 2019 DeSisto reapplied for a LTC. The licensing authority concluded that DeSisto remained unsuitable because “nothing has changed since 2012,” and denied the application.
 
A judicial review followed and the reviewing judge observed that DeSisto had “been gainfully employed for at least the last seven years, had no record of mishandling any type of weapon, had no record of violence, and had no record of any mental health issue.” In reaching these conclusions the judge reasoned that the 2012 heroin charge should not be considered because the heroine evidence had been suppressed. Based upon the amount of time that had passed since the conduct at issue and the lack of any indication that DeSisto presently was unsuitable, the judge ordered the the license to issue. The licensing authority appealed to the Appeals Court.

Decision on Appeal: The Appeals Court began by observing that “[t]he purpose of [the Massachusetts firearms licensing statute] is to limit access to deadly weapons by irresponsible persons.” Chief of Police of Worcester v. Holden, 470 Mass. 845, 853 (2015). 

Uncharged Criminal Conduct and Dismissed Charges: As to the uncharged drug transactions and the dismissed possession charge, the Appeals Court noted: [t]he fact that there was no conviction removes the incidents in 2011 and 2012 as a license disqualifier, but it does not remove the [licensing authority]'s consideration of the incident[s] on the question of DeSisto's suitability [to possess a firearm].” Chief of Police of Worcester v. Holden, 470 Mass. 845, 856 (2015). The Appeals Court noted that in similar contexts it has been recognized, when evaluating suitability, that a licensing authority may consider the contents of police reports and even the facts of pardoned offenses.

Suppressed Evidence: As to suppressed evidence, the Appeals Court noted that in the absence of government misconduct, “[t]he general rule is that evidence suppressed in a criminal proceeding may be used in a subsequent [legal proceedings].” Government misconduct might arise, for instance, if evidence is illegally seized with the intention of using the evidence in a (non-criminal) proceeding, for instance, to revoke a license to carry. Noting of the sort occurred here.

Confidential Informant: Some of the evidence against DeSisto required consideration of information obtained from a confidential informant whose identity necessarily was withheld during the proceedings. The Appeals Court found nothing improper about the licensing authority's consideration of this information.

Suffice it to say, unfavorable information is difficult exclude from consideration during the LTC application process. The applicant may be best served by arguing that the evidence does not demonstrate unsuitability. For instance, the DeSisto case does observe that “the licensing authority must take into consideration efforts at rehabilitation.” If the authority must take into consideration efforts a rehabilitation, convincing evidence of rehabilitation must overcome evidence of prior substance abuse or dependency, otherwise the “mandatory” consideration is meaningless. Any explanation that overcomes unfavorable information should be strongly emphasized. The applicant should not, however, stretch the truth: the Appeals Court noted that lack of candor during the application process and|or application appeal may be considered unfavorably to an applicant.

Applicant's Suitability for License to Carry (Part the Second)

In Nichols v. Chief of Police of Natick, 94 Mass. App. Ct. 739 (2019), discussed below, the point was made that an appeal of a licensing authority's denial of an application for license to carry is limited to whether the authority acted reasonably in determining that an applicant is “unsuitable”--not whether the judge deciding the appeal reaches a different conclusion. Stated differently, to overturn the licensing authority, a reviewing judge must concluding that the licensing authority's denial was “arbitrary, capricious, or an abuse of discretion." 

In Chief of Police of Wakefield v. DeSisto (Massachusetts Appeals Court No. 20-P-1052, June 21, 2021), the licensing authority denied Adam DeSisto's a license to carry based upon some scant and remote drug activity. A reviewing judge “evaluated the evidence and decided that it was ‛too thin' and ‛too stale' to [demonstrate that DeSisto posed] a . . . risk [to the public].” Nevertheless, the Appeals Court took the position that the licensing authority acted reasonably and that the reviewing judge acted impermissibly in substituting her judgment for that of the licensing authority.

Perhaps had the reviewing judge characterized the “evidence” the licensing authority relied upon as insufficient of itself to lead to a conclusion of unsuitability (given other evidence of consistent gainful employment and lack of any other evidence of unsuitability) and thus the determination of the licensing authority amounted to an abuse of discretion, the Appeals Court may have considered the matter differently.

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Applicant's Suitability for License to Carry

The Massachusetts firearms licensing statute prohibits certain persons from possessing a firearms license--most prohibitions arising from convictions for specified crimes. * An non-prohibited person seeking a license must additionally satisfy the local licensing authority that he or she is not  “unsuitable.” In most instances the “licensing authority” is the local chief of police and, for much of the history of the licensing statute, what made a person suitable or unsuitable was undefined.

Massachusetts General Laws, chapter 140, § 131 (d), provides that a licensing authority may decline to grant a license to carry a firearm on the ground that the applicant is “unsuitable.” The licensing authority may also suspend or revoke a previously issued license “if , . . the licensing authority determines that the . . . licensee is unsuitable . . . to continue to hold a license to carry.” General Laws, chapter 140, § 131 (f). Massachusetts General Laws, chapter 140, § 131 (f), was amended in 2015 to provide some guidance to the licensing authority in determining unsuitability:

“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.”

If an applicant is denied a license due to unsuitability or a license is revoked due to unsuitability, the aggrieved person may appeal to the district court. Massachusetts General Laws, chapter 140, § 131 (f). A district court judge may order the grant or reinstatement of the license if the judge finds, after a hearing, “that there was no reasonable ground for denying, suspending, revoking or restricting the license and that the [aggrieved person] is not prohibited by law from possessing a license.” Massachusetts General Laws, chapter 140, § 131 (f).

Before the district court the aggrieved person “may present relevant evidence tending to show that he or she is a proper person to hold a license to carry a firearm, or that the action of the licensing authority was arbitrary or capricious, or an abuse of discretion.” ** Chief of Police of Worcester v. Holden, 470 Mass. 845, 862 (2015).The district court judge, “after an evidentiary hearing, may find facts and direct the licensing authority to issue a license if the judge finds that the licensing authority had ‘no reasonable ground’ for denying the license.” Nichols v. Chief of Police of Natick, 94 Mass. App. Ct. 739, 743-744 (2019). A judge must bear in mind, however, that “[t]he ‘suitable person’ standard gives the licensing authority . . . ‘considerable latitude’ or broad discretion in making a licensing decision.” Chardin v. Police Commissioner of Boston, 465 Mass. 314, 316 (2013).

Prior challenges to license denials or revocations provide some–though not thorough--guidance on what is a reasonable denial due to unsuitability. In Firearms Records Bureau v. Simkin, 466 Mass. 168, 182 (2013), a revocation was found to be unreasonable where the revocation was based upon the licensee’s providing a false name when seeking medical treatment: such conduct did not implicate public safety concerns. Similarly, in Phipps v. Police Commissioner of Boston, 94 Mass. App. Ct. 725, 733-735 (2019), an applicant’s minor and immaterial inaccuracies in responses to questions in a face-to-face meeting with the commander of the licensing unit did not amount to grounds to deny a license. 

On the other hand, denial was found to be reasonable in Chief of Police of Worcester v. Holden, 470 Mass. 845, 855 & n.8 (2015), where “specific and reliable information established that [the applicant] had assaulted and beaten his wife” five years earlier. In Nichols v. Chief of Police of Natick, 94 Mass. App. Ct. 739, 747 (2019), the licensing authority was found to have acted properly in denying a license to an applicant with a fifteen-year history of prescription drug abuse. In Chief of Police of Taunton v. Caras, 95 Mass. App. Ct. 182, 186-187 (2019), the licensee’s failure to secure a firearm, allowing his drug-addicted grandson to abscond with the firearm, was sufficient reason to revoke a license.

Some takeaways: A licensing authority’s adverse action need only be reasonable--that reasonable minds may reach different conclusions is not sufficient to overcome an adverse determination. In a district court appeal, the applicant or licensee bears the burden of proving that the denial or revocation was unreasonable. The role of the district court judge is merely to determine if the determination is reasonable--not to substitute his or her judgment for that of the licensing official. The licensing authority’s conclusions need not be based upon criminal prosecutions or criminal investigations: any credible information is sufficient. Chief of Police of Worcester v. Holden, 470 Mass. 845, 855 & n.8, 856 (2015). Finally, what amounts to unsuitability remains unclear: the cases elaborating on the subject seem to be at the extremes, providing little guidance for conduct in the middle. Finally still, the law provides that one may reapply for a license if the reason causing unsuitability has been overcome. Massachusetts General Laws, chapter 140, § 131 (f).

* Massachusetts General Laws, chapter 140, § 131 (d) (i)-(x) provides a list of disqualifying conditions that prohibit a person from obtaining a license to carry, such as certain criminal convictions, prior involuntary commitment for mental illness, being younger than twenty-one years of age, and renunciation of United States citizenship.

** Use of the word “or” suggests that the applicant may obtain a separate suitability determination from the district court judge, though the Massachusetts Appeals Court has not interpreted the statute as such. Chief of Police of Taunton v. Caras, 95 Mass. App. Ct. 182 (2019).