LTC Application Denied, Appeal Forfieted

Tyrone Calloway, who claimed he was a private investigator, failed to accurately complete his LTC application. Specifically, he answered “no” to “question 10,” which asks if he had ever previously appeared in court as a criminal defendant.

The Quincy, Massachusetts Police Chief denied Calloway’s LTC Application, alleging that he was untruthful in filling out the application. The Quincy Police Department investigated Calloway’s responses and they found that he had actually appeared as a criminal defendant 5 times in Massachusetts and once in New York.

In accordance with G.L. c. 140 § 131, Calloway filed a petition for judicial review in the Quincy District Court. He was not represented by counsel and Judge Coven ruled against Calloway and in favor of the licensing authority. Calloway filed for 4 motions for reconsideration, again without a lawyer, and all of motions were denied.

Calloway tried to appeal in Norfolk Superior Court. However, he made numerous substantive and procedural errors such that he forfeited his right to appeal the District Court’s decision to uphold the License to Carry denial. The Massachusetts Appeals Court ruled that “[a]n action that ends in a final judgment from which no appeal was taken cannot be resurrected by bringing an entirely new (and late) action in the Superior Court-as Calloway sought to do here…”  The Mass. Appeals Court affirmed the Superior Court’s denial of Calloway’s appeal.

The outcome in this case shows how important it is to have legal representation if your License to Carry Firearms Application is denied or your LTC is suspended or revoked. This case also demonstrates the importance of correctly answering “Question 10.”

Virginia LTC Process Criticized

Today the Boston Herald reported how the State of Virginia accepts on-line classes for non-resident firearms permits. The article implies that applicants for these permits are skirting the requirements for residents, which require that the License to Carry Applicant complete a “live fire” course. What the article fails to recognize is that those who are applying for non-resident licenses to carry firearms are generally proficient with firearms and licensed in their home state. Thus, they’ve already demonstrated that they are suitable to be licensed and carry firearms, as they have met the qualifications and requirements of their home state.

In Massachusetts, applicants must have taken and passed a basic firearms safety course (BFS), which is provided by a licensed instructor, using an approved curriculum.  In addition to this statewide requirement, some Massachusetts cities and Towns, such as Boston, require that the LTC applicant demonstrate his or her proficiency by passing a live “qualification course,” which is designed to test the LTC applicant’s safe handling abilities and basic accuracy.

Incidentally, the State of Massachusetts should streamline the firearms licensing process by using an on-line statewide application which could be completed via a secure website and payments could be made by credit card on-line. Once the application is submitted, the applicant could present himself or herself to his or her local police department for fingerprinting, interviews, etc… This would streamline the licensing process and hopefully reduce the “turnaround” time when it comes to processing applications.

CWOFs & Massachusetts Firearms Licensing

 

There is considerable confusion regarding whether a criminal case which was continued without a finding can be used to deny issuance of a license to carry firearms in Massachusetts. Some licensing authorities mistakenly believe that a charge which was resolved by a CWOF counts as a conviction. While the facts which underlie a CWOF might be able to be used to show that an applicant is not a suitable person to hold a license to carry firearms, the disposition itself does not render an applicant statutorily disqualified from being issued a LTC. Such is the case because nowhere in the definition of “conviction,” which is set forth in G.L. c. 140 § 121, is there any mention of a case which was continued without a finding (CWOF’ed.) Furthermore, an admission to sufficient facts followed by a continuance without a finding does not constitute substantial evidence that the underlying offense occurred. For example, in Wardell v. Director of Div. of Empl. Sec., 397 Mass. 433, 436-37 (1986), the Supreme Judicial Court held that

An admission to sufficient facts, absent a subsequent finding of guilt, does not constitute substantial evidence from which a finder of fact in a collateral civil proceeding can determine that the alleged misconduct has indeed occurred. Factors other than consciousness of guilt – including expedience or avoidance of publicity – may motivate a defendant to admit to sufficient facts in exchange for a continuance and eventual dismissal. Criminal charges not resulting in conviction do not provide adequate or reliable evidence that the alleged crime was committed.

See Fire Chief of East Bridgewater v. Plymouth Co. Ret. Bd., 47 Mass. App. Ct. 66, 71 N13 (1999), citing Commonwealth v. Jackson, 45 Mass. App. Ct. 666 (1998). (Admission not akin to a guilty plea). See also Burns v. Commonwealth, 430 Mass. 444, 449-451 (1999) (State Police trial board’s discipline based on officer’s admission to sufficient facts and resulting CWOF on the underlying charges was reversed as legal error); Santos v. Director of Div. of Empl. Sec., 398 Mass. 471, 474 (1986) (“The record reflects that the plaintiff claimed he was innocent; for all that is shown in the record, he may have admitted to sufficient facts to avoid the expense, publicity, and notoriety which a full trial might engender.”)

Accordingly, a CWOF is not a conviction for Massachusetts firearms licensing purposes and there are many legitimate reasons why a License to Carry Applicant may have agreed to a CWOF as a sensible means to dispose of a criminal charge.