30 Mass. App. Ct. 632 | Mass. App. Ct. | 1991
When the plaintiff applied for renewal of her license to carry a firearm, she was required by the defendant’s agents to take a firing test and to pay a range fee in addition to a license fee. She challenged the test and the additional fee in the Superior Court and, after a trial without jury, appeals from a judgment of that court declaring that (1) the requirement of a firing test was a proper exercise, by the defendant, of his statutory duty under G. L. c. 140, § 131, (2) the test was conducted in a way which was within the discretion of the defendant, (3) the policies, procedures and methods established by the defendant were not arbitrary or capricious, but were “well calculated to determine suitability and to protect the safety of the public,” and (4) the establishment of a “range fee” by the defendant was a proper exercise of discretion. We conclude that the firing test is lawful, but that the range fee, lacking the authority of an ordinance, is not.
In 1982, the plaintiff, a resident of the city of Boston, applied to renew a license to carry a firearm which had been issued to her by the defendant under G. L. c. 140, § 131. The city of Boston, by ordinance (City of Boston Code, Ordinances, Title 14, § 450, cl. 120, as amended [1976]), had established a twenty-five dollar fee for the grant of a new license.
At the time of her renewal application, the plaintiff learned that the procedures for license grants had been changed and that she would be required to pass a firing test at the Moon Island firing range using a .38 caliber handgun provided by the defendant. She was also informed that she would be required to pay a range fee of six dollars for costs associated with the firing test. The plaintiff paid the range fee under protest.
At the time of the plaintiffs application, G. L. c. 140, § 131, as appearing in St. 1972, c. 415, stated in pertinent part:
“The chief of police or the board or officer having control of the police in a city or town, or the commissioner of public safety, or persons authorized by them, respectively, after an investigation, may, upon the application of any person. . . residing or having a place of business within their respective jurisdiction, except [certain minors, aliens, felons and persons convicted of drug offenses], issue a license to such applicant to carry firearms in the commonwealth. . . if it appears that he is a suitable person to be so licensed, and that he has good reason to fear injury to his person or property, or for any other proper purpose, including the carrying of firearms for use in target practice only. . . .”4
The firing test. “The goal of firearms control legislation in Massachusetts is to limit access to deadly weapons by irresponsible persons.” Ruggiero v. Police Commr. of Boston, 18 Mass. App. Ct. 256, 258 (1984). Among the principal measures adopted in furtherance of that goal are the provisions of G. L. c. 140, § 131, governing the licensing of persons to carry firearms. Id. at 258-259. That statute, in addition to excluding certain defined classes of persons, requires, before a license is issued, that the licensing authority ascertain that an applicant is a “suitable person” to carry firearms and has a “proper purpose” for doing so. Id. at 259. These statutory requirements do not present any question of infringement of any protected property right or liberty interest. Commonwealth v. Davis, 369 Mass. 886, 888 (1976). Chief of Police of Shelburne v. Moyer, 16 Mass. App. Ct. 543, 547 (1983).
As the officer having control of the police in the city of Boston, the defendant is the licensing authority under G. L. c. 140, § 131, and specifically is empowered to perform duties relating to licensure. St. 1962, c. 322, §§ 1(7) and (13). He has been given “considerable latitude” in the performance of his task. Ruggiero, supra at 259. The grant to him, without guidelines, of the general power and responsibility of determining a person’s suitability to carry firearms necessarily includes any incidental power reasonably related to effectuating the purposes of the granting statute. Commonwealth v. Slocum, 230 Mass. 180, 192 (1918). Town Taxi Inc. v. Police Commr. of Boston, 377 Mass. 576, 586 (1979). As a general proposition, we conclude that the imposition of a test focusing on the safe handling and proficient firing of a firearm is not an unreasonable exercise of that power.
The plaintiff introduced considerable expert evidence questioning the validity of the firing test in question. The judge,
Although G. L. c. 140, § 131, “does not require the licensing authority to ascertain an applicant’s skill at handling firearms,” Sampson v. Lynn, 405 Mass. 29, 32 n.3 (1989), it also does not prohibit a valid test for minimal competency, especially where the applicant’s firing of a handgun reasonably can be anticipated from the statement of purpose submitted in support of an application to carry. We do not venture any opinion as to the validity of such testing in circumstances in which the license to carry is solely for a limited purpose not likely to involve firing, such as collecting.* ***
The remaining question is whether the plaintiff has shown that the mechanics of the test reflected an abuse of discretion. The broad grant of discretion implicit in a statute which lacks guidelines
In the course of his testimony, the commanding officer of the licensing unit of the Boston police department stated that he, as a matter of discretion, determined on the basis of proffered credentials that some applicants qualified to be licensed without testing. The plaintiff did not allege arbitrary and selective application of the test in her complaint. She now argues that it was error for the judge not to declare the firing test to be invalid on the ground that it was selectively applied. The record contains no indication of the issue of selective testing having been addressed by the parties at trial. It was, therefore, well within the judge’s discretion not to issue a specific declaration on the subject.
The range fee. Except for certain licenses not pertinent to this decision, the city of Boston is authorized to establish by ordinance “the fees for all licenses and permits granted under the authority of statutes . . . and may likewise fix the charges to be paid for any services rendered or work performed by the city or any department thereof, for any person or class of persons. . . .” St. 1949, c. 222, § 1. The range fee here involved was established by the Boston police department on May 26, 1981. The defendant does not contend that it was in any way authorized by ordinance. Absent such authorization, the range fee is unlawful because the power of the city of Boston to charge for the services attendant to the issuance of a license to carry a firearm derives solely from St. 1949, c. 222, and may be exercised only by ordinance. Mosey Cafe, Inc. v. Licensing Bd. for Boston, 338 Mass. 199, 204
Accordingly, paragraph 1 of the judgment is vacated and the matter is remanded to the Superior Court for modification of the judgment to declare that the range fee implemented by the defendant on May 26, 1981, was established without proper authority and, therefore, was invalid. The remainder of the judgment is affirmed.
So ordered.
As of the time of the trial, the fee had been increased by ordinance to fifty dollars.
Applicants were required to fire thirty rounds at a bulls-eye target with graded rings — twelve rounds were to be fired from a distance of seven yards and eighteen rounds from a distance of fifteen yards. Some of the rounds had to be fired “double action, with a one hand hold.”
The plaintiff filed this action and was denied injunctive relief before taking the test. We conclude, as did the judge, that this case involves issues “capable of repetition, yet evading review,” and, therefore, should not be treated as moot. See Wolf v. Commissioner of Pub. Welfare, 367 Mass. 293, 298-299 (1975).
An initial license is issued for a period of not less than four years and not more than five years from the date of issue. A renewed license also expires no less than four years nor more than five years after its effective
At least three States have enacted statutes requiring that firing proficiency be demonstrated in connection with certain applications to carry firearms. See Minn. Stat. § 624.714 § 5(b) (1990); N.D. Cent. Code, § 62.1-04-03(1)(c) (Supp. 1989); and R.I. Gen. Laws § 11-47-15 (1981). Florida permits competence to be demonstrated by proof of completion of any of several designated courses or by proof of “equivalent experience with a firearm.” Fla. Stat. § 790.06, (2)(h) 5 (1989).
The suggestion by this court that a statutory statement of guidelines and restrictions might be helpful has not yet stimulated legislative action. See Ruggiero v. Police Commr. of Boston, supra at 261 n.7.
The judge’s findings specifically were addressed to whether the firing requirement was within the defendant’s authority and whether it was a valid test of suitability. We, therefore, determine that his declaration of lack of arbitrariness was limited to the issue of the suitability of the test.