Massachusetts Denial of Gun Rights Restoration Reversed by Appellate Court

From In the Matter of K.P., decided June 26, 2024 by the Massachusetts District Court Appellate Division (Judge Thomas L. Finigan, joined by Judges Kevin J. Finnerty and Jean M. Curran) but only recently posted on Westlaw:

In the fall of 2016, the appellant’s addiction to painkillers and fentanyl led to the filing by his mother of a “section 35″ petition in the District Court. General Laws c. 123, § 35 (“section 35″) authorizes the involuntary civil commitment of a person for care and treatment where “there is a likelihood of serious harm as a result of the person’s alcohol or substance use disorder.” After examination by a court clinician and a subsequent hearing, a District Court judge committed the appellant (“K.P.”) to a substance abuse treatment facility for a period not to exceed ninety days. K.P. did not appeal his commitment and was discharged from the facility approximately one month later.

A civil commitment under section 35 has a collateral consequence—it disqualifies an individual from holding a license to carry a firearm. The bar is not absolute. Rather, after the passage of five years, a person may file a petition with the District Court that ordered the commitment, seeking relief from the disqualification to obtain or restore a license to carry. In this case, K.P. did so and was denied. K.P. now appeals that denial….

The court [in a section 35 restoration proceeding] may grant relief “in accordance with the principles of due process” if the person’s circumstances, record, and reputation are such that “(i) the person is not likely to act in a manner that is dangerous to public safety; and (ii) the granting of relief would not be contrary to the public interest.” In so doing, the court may consider the opinion of a licensed physician or clinical psychologist that the person is “no longer suffering from the disease or condition that caused the disability or that the disease or condition has been successfully treated for a period of 3 consecutive years.”

Roughly six and a half years following his commitment, K.P. filed a petition in the court that ordered his commitment seeking to restore his right to possess a firearm. In support of his petition, K.P. submitted letters from his father, mother (the original petitioner under section 35), and his girlfriend, as well as a letter and affidavit from K.P. himself, which included copies of clean drug screenings mandated by his employer. The supporting materials described K.P. as an individual who had overcome his addiction, maintained employment as a commercial truck driver, obtained his real estate salesperson’s license, and was in a long-term relationship with his girlfriend while parenting his children. Nonetheless, a District Court judge denied K.P.’s petition without a hearing.

Beyond the requirement that a court may grant relief “in accordance with the principles of due process,” section 35 is silent as to how such petitions should be considered….

At a minimum, due process requires notice and an opportunity to be heard. Because a constitutional right is at stake, we find that a court faced with a petition to restore a license to possess a firearm following a section 35 commitment should conduct a hearing with testimony under oath. This will permit the judge to assess credibility and question the petitioner, at what is essentially a one-sided, non-adversarial proceeding. Such a hearing will allow the petitioner to offer, as suggested by the statute but not required, the opinion of a licensed physician or clinical psychologist as described above.

The focus of the hearing, understandably, should be whether the petitioner has satisfied the provisions of section 35 that would warrant relief, namely, whether the person is not likely to act in a manner that is dangerous to public safety and the granting of relief would not be contrary to the public interest. Lastly, because section 35 provides a de novo avenue of appeal to this Appellate Division for a petitioner who is denied relief, such a hearing will provide a record upon which review can be made. For those reasons, we return this matter to the District Court for a hearing in accordance with this decision.

Because the issue may arise at the hearing, we address the issue of the standard of proof required. Section 35 is silent on the topic, but we note that under somewhat analogous hearings held before the firearms review board (the “board”), the petitioner must prove by “clear and convincing evidence” that the petitioner is a suitable person to be a license to carry holder. By statute, an applicant for a license to carry who has been previously convicted of an offense punishable by two and one half years or less may, after five years from the date of final disposition, petition the board for review of eligibility to be a license to carry holder. Such hearings are to be conducted in an informal manner but according to the rules of evidence and with witnesses sworn. On return of this case, the court should follow the same procedure.

Charles H. Basler (Law Office of Adam M. Bond) represented plaintiff.

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