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.