LTC Suitability

[ShaysMASS]

With the Belchertown and other LTC suitability cases currently in the works does anyone know if the suitability part of the LTC in MA go away?

 

[Parker Schreiber]

The Commonwealth still takes the position that “determination of unsuitability shall be based on reliable, articulable 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 a risk of danger to self or others” and that’s defensible with current Suprene Court rulings.

You and I may disagree with that, as does at least one trial judge, but it’ll take a higher court ruling to get rid of it.

 

[Rob Boudrie]

The Commonwealth still takes the position that “determination of unsuitability shall be based on reliable, articulable 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 a risk of danger to self or others” and that’s defensible with current Suprene Court rulings.

You and I may disagree with that, as does at least one trial judge, but it’ll take a higher court ruling to get rid of it.

Does the trial judge object to the requirement that the info be reliable and articulable

 

[556USER]

Does the trial judge object to the requirement that the info be reliable and articulable

Do trial judges in Massachusetts ever require reliable and articulable info when it comes to their advocacy of the ever popular anti second amendment agenda?

 

[Parker Schreiber]

Does the trial judge object to the requirement that the info be reliable and articulable

Apologies in advance for a serious response.

I can't speak for those trial judges, but my primary objection is to the complete lack of standards on what information is sufficient to uphold a denial. That's what turns "suitability" or "good moral character" into a de facto "may issue" standard.

In the Belchertown case, the judge appears to object to the conclusion that a single incident of alleged negligence resulting in criminal charges but not convictions (or CWOF) made someone unsuitable. In the Boston case, articulation was not at issue but credibility may have been -- the conclusion based on his estranged wife's testimony that he threatened to commit suicide but took no actions in furtherance of that threat.

We do allow the police to impose on our 4th amendment rights based on "specific and articulable facts" without a judicial ruling for a "Terry stop." But when carving out that exception, courts set limits on the amount and duration of that intrusion. For "suitability," there is no such limit, and not only isn't an expedited hearing available, it's actually harder to appeal "suitability" than for a misdemeanor conviction.

As Kavanaugh and Roberts pointed out in their Bruen concurrence, licensing requirements are not per se unconstitutional, and some of the "shall issue" states mentioned noted in that opinion have similar processes in place. For example, an Arkansas statute reads:

The director may deny a license to carry a concealed handgun if the county sheriff or chief of police, if applicable, of the applicant's place of residence or the director or the director's designee submits an affidavit that the applicant has been or is reasonably likely to be a danger to himself or herself or others or to the community at large, as demonstrated by past patterns of behavior or participation in an incident involving unlawful violence or threats of unlawful violence, or if the applicant is under a criminal investigation at the time of applying for a license to carry a concealed handgun.

But as things stand, as the Belchertown case shows, getting a questionable denial reversed can not only take 6 months or more, but forces the applicant to incur considerable unreimbursed expense.

 

[ShaysMASS]

But as the cases are going to the SJC, which is a superior court to trial court, does that alter the law for Massachusetts?

 

[Rob Boudrie]

But as the cases are going to the SJC, which is a superior court to trial court, does that alter the law for Massachusetts?

No, but it can alter how the law is interpreted and applied.

 

[Parker Schreiber]

But as the cases are going to the SJC, which is a superior court to trial court, does that alter the law for Massachusetts?

So far, an appeal has only been filed in the Belchertown case, which will likely go to the appeals court first. Should one or more cases make it to the SJC, and should the SJC uphold the ruling, then the law would change.

 

[Rob Boudrie]

So far, an appeal has only been filed in the Belchertown case, which will likely go to the appeals court first. Should one or more cases make it to the SJC, and should the SJC uphold the ruling, then the law would change.

Technically no, unless the legislature changed the law in response. It would, however, change how the law is applied or, depending on the ruling, prevent a specific law from being applied.

For example, MGL 272§36 is still on the books and specifies a fine of up to $300 and up to one year in jail for blaspheming the holy name of God or denying God's existence. It even punishes contemptuously reproaching the Holy Ghost (WTF?). But, you will not find a MA court enforcing it even though the law has not been changed.

 

[Parker Schreiber]

Technically no, unless the legislature changed the law in response. It would, however, change how the law is applied or, depending on the ruling, prevent a specific law from being applied.

"The law" in Massachusetts (as well as 48 other states) consists of both case law and statutory law. An SJC ruling wouldn't magically make the statute disappear, but it would change the law.

 

[Rob Boudrie]

"The law" in Massachusetts (as well as 48 other states) consists of both case law and statutory law. An SJC ruling wouldn't magically make the statute disappear, but it would change the law.

Nicely put. I was thinking "statutory law".