McDONOUGH, J.
Concerned for his safety and the protection of his property, the plaintiff, Richard Phipps, a victim of an armed robbery at his small retail business, successfully applied to the police commissioner (commissioner) of the city of Boston (city) for a license to carry a firearm pursuant to G. L. c. 140, § 131. However, the commissioner, through the city police departments (department) licensing unit, restricted Phippss license to target practice and hunting only, uses not germane to his activities or intended purposes. At a meeting with the commander of the departments licensing unit, Phipps sought to persuade the commander to remove the restriction; instead, based upon their conversation, the commander revoked Phippss license, deeming him no longer a suitable person to possess a license. A judge of the Dorchester Division of the Boston Municipal Court Department (BMC) denied Phippss request for judicial review of the license revocation and restriction. Phipps sought further review in the Superior Court where, on cross motions for judgment on the pleadings, the revocation was affirmed. Because Phippss license was restricted and then revoked based upon a generalized, subjective determination of unsuitability rather than specific, reliable information as required by our case law, and because Phipps demonstrated a proper purpose in seeking an unrestricted license, we reverse.
Background. 1. Facts. We summarize the relevant facts from the record as follows. Phipps is a resident of Boston, where he is part owner and operator of a small retail business located at Dudley Square in the Roxbury section of Boston. Phippss duties at the store include closing the store at night and making cash deposits at a nearby bank. Previously, while closing his store one night, Phipps had been robbed at gunpoint.
In April, 2013, Phipps applied to the licensing unit of the department for a license to carry a firearm. His initial contact at the police station in the Dorchester section of Boston was Officer Angela Coleman of the firearms licensing unit, who briefly interviewed him to ascertain whether he was suitable to hold a firearms license. Officer Coleman took Phippss handwritten application and created a new application on her computer. Despite Phipps telling Officer Coleman he needed a license for protection, Officer Coleman, on her own, typed in sport and target as Phippss reason for requesting a license. In doing so, Officer Coleman explained to Phipps that because the city was not really giving out license[s] to carry, the department issued most licenses with restrictions, and that after he received his license, he could then apply to the commander of the licensing unit to have the restriction removed. Phipps accepted this explanation and signed the application.
About five months later, Phipps received a Class A license to carry a firearm. The license was restricted to target and hunting. On September 30, acting on Officer Colemans earlier advice, Phipps wrote a letter to the commander of the licensing unit, Lieutenant Detective John McDonough, requesting removal of the target and hunting restriction. In his letter, Phipps explained he needed an unrestricted license because (1) he is a business owner, (2) he regularly makes deposits of large sums of money, (3) he frequently must visit high crime areas in Roxbury and Dorchester, and (4) he had been the victim of crime in the past in the vicinity of his business after closing the store. By letter dated October 8, 2013, Detective McDonough denied Phippss request, stating without explanation that Phipps had not demonstrated a proper purpose for holding an unrestricted license.
According to the record of the BMC evidentiary hearing, Phipps thereafter telephoned Detective McDonough and again requested removal of the license restriction. Detective McDonough agreed to meet with Phipps at the police station so that they could speak further and directed Phipps to bring his license with him. Later that day, Phipps met with Detective McDonough in the latters office at the police station in Dorchester. When Phipps arrived, Detective McDonough asked him for his license. Phipps handed it to McDonough, who put it in his pocket. Phipps began the meeting by telling Detective McDonough that he had written to him on Officer Colemans recommendation as to how to remove the restriction on his license. Detective McDonough concluded that Phipps was giving [him] the impression that Officer Coleman had authorized him to have an unrestricted license, that, in essence, he was all set, and that his letter to McDonough was just a formality.
Finding Phippss story very unusual and seeking clarification, Detective McDonough called Officer Coleman into the room. After Coleman joined them, Phipps claimed that McDonough was misunderstanding it, and that Officer Coleman had only instructed him to write the letter. McDonough then accused Phipps of chang[ing] his story. Detective McDonough then turned the conversation to Phippss criminal court history. Phipps had never been convicted of a crime. Between 2005 and 2010 he was charged with various crimes, mostly nonviolent, including violations for possession or possession with intent to distribute a class D controlled substance, and various automobile violations, each charge eventually dismissed. McDonough testified that Phipps downplayed his record, quoting Phipps as saying at the meeting: Oh, its really not that bad. Its only a little thing, minor. Its all squashed [sic ]. Not -- its all, you know, no convictions, no nothing. Its not a bad record. With a printout of Phippss history of dismissed charges in front of him, Detective McDonough -- without showing the printout to Phipps -- asked him his number of arraignments. Phipps answered, [F]our or five times. After Detective McDonough explained to Phipps the difference between an arrest and an arraignment, Phipps claimed he had been arraigned three or four times. Detective McDonough testified that Phipps had been arraigned on twenty different charges.
Dissatisfied with Phippss responses during their meeting, Detective McDonough informed Phipps he was no longer a suitable person to hold a firearms license. McDonough concluded that Phipps spoke inaccurately in their meeting by (1) leaving the impression with McDonough that Officer Coleman had already approved him for an unrestricted license and then changing [his] story when Coleman joined the meeting, (2) downplay[ing] his [criminal] record, and (3) inaccurately reporting his criminal history. The meeting ended with Detective McDonough keeping Phippss license. Thereafter, Phipps received a letter from the commissioner informing him that his license to carry a firearm had been revoked based on a determination that he was an unsuitable person. As reasons therefor, the letter stated that (1) Phipps inaccurately said [to Detective McDonough] that [Officer] Coleman had recommended that he receive an unrestricted [license to carry], and in a meeting with both McDonough and Coleman, Phipps changed his account, stating that [Officer] Coleman had told him to write a letter to McDonough; (2) Phipps inaccurately understated the number of [his criminal] charges; and (3) Phipps again understated the content of his record.
Pursuant to G. L. c. 140, § 131(f ), Phipps filed a petition in the BMC for judicial review of both the commissioners decision to revoke his license and the imposition of the target and hunting restriction. Following an evidentiary hearing in which Phipps, his business partner Wayne Atkinson, and Detective McDonough testified, a judge denied Phippss petition without making any findings of fact or rulings of law. Phipps then filed an action in the nature of certiorari pursuant to G. L. c. 249, § 4, in the Supreme Judicial Court, which transferred the action to the Superior Court. On cross motions for judgment on the pleadings, a judge of the Superior Court upheld the license revocation. This appeal followed.
2. Standard of review. a. License revocation. Any applicant or holder aggrieved by a denial, revocation or suspension of a license [to carry] ... may ... file a petition to obtain judicial review in the district court having jurisdiction in the city or town wherein the applicant filed for, or was issued, such license. G. L. c. 140, § 131(f ). If relief is denied in the District Court, the petitioner may then file an action in the nature of certiorari pursuant to G. L. c. 249, § 4, in the Superior Court. Frawley v. Police Commr of Cambridge, 473 Mass. 716, 727, 46 N.E.3d 504 (2016), quoting Firearms Records Bur. v. Simkin, 466 Mass. 168, 179-180, 993 N.E.2d 672 (2013). A District Court judge may overturn a firearms licensing decision as arbitrary or capricious where no reasonable ground exists to support the decision. G. L. c. 140, § 131(f ). Simkin, supra at 179, 993 N.E.2d 672. On certiorari review, the Superior Courts role is to examine the record of the [BMC] and to correct substantial errors of law apparent on the record adversely affecting material rights (quotation omitted). Id. at 180, 993 N.E.2d 672.
Judicial review of the commissioners decision [by this court] proceeds under the same standard as a review conducted by the Superior Court. Frawley, supra at 729, 46 N.E.3d 504. We stand in the same position as the [Superior Court] judge below in making that determination. Id. at 729-730, 46 N.E.3d 504. The decision by a reviewing court is a ruling of law that does not require findings of fact, determinations of credibility, or the application of administrative expertise. Id. at 729, 46 N.E.3d 504. [A] reviewing court simply must determine whether the commissioner, on the basis of the evidence before him, abused his discretion in a manner that adversely affected [Phippss] material rights. Id., citing Simkin, supra at 179-180, 993 N.E.2d 672.
b. License restriction. In determining whether to issue a license with restrictions, G. L. c. 140, § 131, outlines a two-step inquiry the licensing authority must undertake when evaluating an applicant. Ruggiero v. Police Commr of Boston, 18 Mass. App. Ct. 256, 259, 464 N.E.2d 104 (1984). First, as discussed above, the licensing authority must ascertain whether the applicant is a suitable person to possess a firearm. [If so,] the licensing authority then must inquire whether the applicant [has] a proper purpose for carrying a firearm. Id. This inclusion of a proper purpose requirement demonstrates the Legislatures intention that the licensing authority have the power to limit licenses to a specified purpose. Id. at 260, 464 N.E.2d 104. In performing its task, the licensing authority is given considerable latitude. Id. at 259, 464 N.E.2d 104. See Chardin v. Police Commr of Boston, 465 Mass. 314, 316, 989 N.E.2d 392 (2013), citing Ruggiero, supra at 259, 464 N.E.2d 104 (licensing authority has considerable latitude or broad discretion in making a licensing decision). A reviewing court must determine, on the basis of the evidence, whether limiting the license to a specified purpose would ... make arbitrary, capricious or an abuse of discretion the commissioners decision to deny the plaintiff a license for self-protection. Ruggiero, supra at 261, 464 N.E.2d 104.
3. Statutory scheme. The historical aim of licensure generally is preservation of public health, safety, and welfare by extending the public trust only to those with proven qualifications. Leduc v. Commonwealth, 421 Mass. 433, 435, 657 N.E.2d 755 (1995), cert. denied, 519 U.S. 827, 117 S.Ct. 91, 136 L.Ed.2d 47 (1996). Anyone wishing to lawfully carry a firearm in Massachusetts must either obtain a license to carry firearms pursuant to G. L. c. 140, § 131, or be exempt from the licensing requirements. Chardin, 465 Mass. at 315, 989 N.E.2d 392. A [l]icensing authority, defined as the chief of police or the board or officer having control of the police in a city or town, or person authorized by them, G. L. c. 140, § 121, as appearing in St. 1998, c. 180, § 8, issues the firearms license. G. L. c. 140, § 131(d ). The Class A license, at issue here, authorizes the holder to possess and carry firearms, including large capacity firearms, and feeding devices and ammunition therefor, for all lawful purposes, subject to such restrictions relative to the possession, use or carrying of firearms as the licensing authority deems proper. G. L. c. 140, § 131(a ). The licensing authority, in this case the commander of the licensing unit, is vested with considerable latitude or broad discretion in making a licensing decision. Chardin, supra at 316, 989 N.E.2d 392, quoting Ruggiero, 18 Mass. App. Ct. at 259, 464 N.E.2d 104. If the licensing authority determines that the holder is no longer a suitable person to possess the license, it may be revoked or suspended, provided that the revocation or suspension is in writing and states the reasons therefor. G. L. c. 140, § 131(f ).
Discussion. 1. Revocation of Phippss license. At the time of Phippss application, the firearms licensing statute did not define unsuitable person. See G. L. c. 140, § 131. Nor was the term defined in any regulation promulgated by the Executive Office of Public Safety and Security, see Simkin, 466 Mass. at 180, 993 N.E.2d 672, or by the Boston police department. Furthermore, the limits of unsuitability have not been clearly established by our case law. Id. It is clear, however, that an individual may be deemed unsuitable to possess a firearms license for reasons other than the specifically enumerated disqualifiers set out in G. L. c. 140, § 131(d ). Simkin, supra at 180, 993 N.E.2d 672. Phipps submits that the decision to revoke his license on suitability grounds based on his conversation with Detective McDonough was completely arbitrary, because it was based on Detective McDonoughs subjective belief after a 10-15 minute conversation that Phipps was unsuitable, a belief at odds with Detective McDonoughs initial decision to issue Phipps the license. The commissioner counters that McDonough reasonably exercised his discretion to deem Phipps unsuitable and revoke his license because [Phipps] inaccurately represented his prior communications with Officer Coleman and characterized the contents of his [r]ecord in a misleading manner. Relying principally on the decision of the United States Court of Appeals for the First Circuit in Hightower v. Boston, 693 F.3d 61, 74-76 (1st Cir. 2012), the commissioner submits that Detective McDonough properly revoked Phippss license because he provided inaccurate information during the application process, which is a valid consideration in the suitability determination. We are not persuaded.
While the commissioner is correct that a license holder need not violate the law or be statutorily disqualified to be deemed unsuitable, the discretion to make a suitability determination is not without limits. Simkin, 466 Mass. at 181, 993 N.E.2d 672. The goal of firearms control legislation in Massachusetts is to limit access to deadly weapons by irresponsible persons. Ruggiero, 18 Mass. App. Ct. at 258, 464 N.E.2d 104. As previously noted, while the statute as then in effect did not define unsuitable person, cases addressing the term have generally upheld the denial or revocation of licenses where a person has a documented risk to public safety. In this way, G. L. c. 140, § 131, achieves its purpose of keep[ing] firearms out of the hands of persons who are not categorically disqualified, e.g., convicted felons, but who nevertheless pose a palpable risk that they would not use a firearm responsibly if allowed to carry in public. Chief of Police of Worcester v. Holden, 470 Mass. 845, 854, 26 N.E.3d 715 (2015). In fact, the statute passes muster under the United States and Massachusetts Constitutions precisely because it bears a reasonable, as well as a real and substantial, relation to public health and safety. Id.
Viewed as a whole, we conclude that Phippss statements to Detective McDonough did not provide a reasonable ground for the revocation of his license. The commissioners stated reasons for revoking Phippss license -- Phippss mischaracterization to McDonough of his conversation with Coleman about the process to seek removal of the target and hunting restriction on his license, and his failure to accurately recite to McDonough the number of charges and the arraignments from his court history -- are not reasonably related to the statutes goal of keeping firearms out of the hands of persons who could cause a risk to public safety. Put another way, even if Detective McDonoughs testimony about his meeting with Phipps is accurate, nothing in the record reveals any reasonable nexus between what Phipps said in that meeting and a risk to public safety. While Detective McDonough may well have found Phippss account of his conversation with Officer Coleman [v]ery unusual, that is not a sufficient reason to revoke his license. See Simkin, 466 Mass. at 181-183, 993 N.E.2d 672 (license holders use of false name to check into medical appointment and employees fear and alarm upon learning he was carrying concealed weapons, while arguably unusual but otherwise innocuous actions, held not sufficient grounds to revoke license to carry).
The same holds true for Phippss understated opinion about the seriousness of his court history, and his imperfect memory of the number of times he had been arrested and arraigned, going back a number of years. We find it significant that in his BMC testimony, Detective McDonough downplayed Phippss inaccurate answers to these questions. Referring to the printout of Phippss history of dismissed charges, McDonough stated: In fairness to [Phipps], he had not seen it. It was on my desk and [Phipps] had not seen it in fairness to him. Furthermore, in his testimony, Detective McDonough acknowledged that there can be a difference between the number of arrests, the number of appearances for arraignment, and the number of charges.
Phippss personal opinion that the dismissed charges against him were minor and that his record with no convictions was really not that bad had no bearing on Detective McDonoughs ability to fully assess Phippss history of dismissed charges to determine whether he was suitable. Even if Phipps unduly downplayed his history, that falls short of a misrepresentation, which, [i]n general, ... must concern a fact, and not an opinion or belief. Marram v. Kobrick Offshore Fund, Ltd., 442 Mass. 43, 57 n.24, 809 N.E.2d 1017 (2004).
Phippss history of dismissed charges -- which only months earlier did not render him unsuitable -- cannot fairly be recast by the department based on Phippss personal opinions about that history. Neither Phippss inaccurate account of his conversation with Officer Coleman about the process for removing the target and hunting license restriction, nor his failure to accurately recite to McDonough the number of charges and arraignments from his court history, created an increased risk to public safety. Nor did any of Phippss responses constitute the withholding of facts material to a licensing decision.
The First Circuits decision in Hightower v. Boston, supra, upon which the commissioner principally relies, is not to the contrary. There, department policy required the plaintiff, a Boston police officer, to fill out an additional form and attach it to her application for renewal of her license to carry a firearm. Hightower, 693 F.3d at 68. One of the questions on that form asked whether she had any pending complaints or charges against her. She answered no when, according to the department, there were in fact several findings regarding rules violations pending against her arising out of an internal affairs investigation of another officer. Once the licensing authority discovered the undisclosed pending complaints, her license was revoked. Id. at 68-69. The court concluded that the revocation of a firearms license on the basis of providing false information as to the existence of pending complaints or charges on the firearms license application form is not a violation of the Second Amendment [to the United States Constitution] in this case. Id. at 74. Thus, the court concluded that the particular ground for unsuitability [was] not subjective, and it [did] not confer too much discretion on the licensing authority. Id. at 76. Detective McDonough, in contrast, based his decision to revoke Phippss license on his own impression that Phipps was changing [his] story about his conversation with Officer Coleman, and on McDonoughs perception that Phipps downplayed his history of dismissed charges -- both subjective determinations, unlike the applicants nondisclosure of material facts at issue in Hightower. Phipps did not provide any inaccurate or false information on his license application, and his entire criminal court history was known to Officer Coleman and Detective McDonough.
2. The target and hunting license restriction. The licensing authority must determine whether an applicant has valid reasons for being licensed, including good reason to fear injury to person or property. Ruggiero, 18 Mass. App. Ct. at 258-259, 464 N.E.2d 104. Phipps asserts that the target and hunting restriction placed on his license prior to its revocation violates G. L. c. 140, § 131. The commissioner responds that the restriction is a proper exercise of the licensing authoritys discretion to issue restricted licenses, pursuant to Detective McDonoughs unwritten policy of issuing only restricted licenses to every first-time applicant who is not either a police officer or an attorney.
Detective McDonough testified that the department had no written guidelines for use in determining whether an applicant has demonstrated a proper purpose for carrying a firearm. In determining whether to remove restrictions on a license, Detective McDonough testified that he considers the following factors: whether the applicant is a member of law enforcement, an attorney, or a business owner, whether the applicant can demonstrate a reason to fear for his personal safety, and the applicants criminal history. In response to Phippss detailed written request to Detective McDonough for removal of the target and hunting restriction, in which Phipps explained that he was a victim of crime and that his business required him to deposit large sums of money on a regular basis, Detective McDonough informed Phipps by letter that his request was denied because you could not show that you have a proper purpose to possess [an unrestricted] license. McDonoughs denial letter made no mention of Phippss history of dismissed charges, nor did it set forth any reasoning or explanation why he believed Phipps could not show [he had a] proper purpose. Here, even under Detective McDonoughs stated criteria for evaluating an applicants proper purpose in seeking an unrestricted license, Phipps demonstrated a proper purpose. He was a business owner who requested an unrestricted license to carry a firearm to protect himself and his property, in particular when closing his store at night and when carrying large amounts of cash to the bank, having already been a victim of robbery at gunpoint under that very circumstance. Thus, Phipps demonstrated a proper purpose for the issuance of an unrestricted license to carry a firearm. Contrast Ruggiero, 18 Mass. App. Ct. at 261, 464 N.E.2d 104.
Conclusion. Because Phipps has demonstrated by substantial evidence his need to protect himself and his retail business, and because the department failed to show that it restricted and revoked his license to carry a firearm for objective reasons related to public safety, the department was without reasonable grounds to conclude he was an unsuitable person to possess a firearm for any lawful purpose. The actions of the commissioner challenged here were arbitrary and capricious, in that the reasons given for the revocation and restriction of Phippss license to carry a firearm bear no reasonable nexus to public safety. The exercise of administrative discretion, no less than judicial discretion, must be limited to a consideration of the factors relevant to the decision. L.L. v. Commonwealth, 470 Mass. 169, 185 n.27, 20 N.E.3d 930 (2014). Nothing we have said in this opinion should be read as diminishing in any way the broad discretion that the licensing authority has to determine whether an applicant for a firearms license is a suitable person and, if so, what restrictions, if any, should be imposed on such a license.
The judgment is reversed, and a new judgment shall enter in the Superior Court reinstating Phippss license to carry a firearm, without restriction, for any lawful purpose.
So ordered.
In addition, Phippss business partner, Wayne Atkinson, had been a victim of two armed robberies while working at one of the businesss other locations. The department issued Atkinson an unrestricted license to carry firearms. Because Atkinson was robbed twice at their business, and because Phipps was carrying large sums of money, Atkinson advised Phipps that it was a very good idea for him to apply for a license to carry a firearm.
At the BMC evidentiary hearing, Lieutenant Detective John McDonough confirmed that this was department policy, except for applicants who were either police officers or attorneys, who, once approved as suitable, were issued unrestricted licenses.
In his complaint and throughout the record, the restriction on Phippss license to carry is referred to as target and sport shooting, even though the wording on his license is target and hunting. The discrepancy is insignificant. In any event, there is nothing in the record suggesting that Phipps either engaged, or had an interest, in hunting or target or sport shooting.
The commissioner did not call Officer Coleman to testify at the BMC hearing. There is nothing in the record as to what, if anything, Coleman said after she joined the meeting.
A printout of Phippss board of probation report, admitted in evidence at the evidentiary hearing, revealed no convictions. The report reflected that charges in 2007 and 2010 for possession with intent to distribute a Class D controlled substance were dismissed following continuances without a finding; charges in 2005 and 2006 for simple possession or possession with intent to distribute a Class D substance were dismissed, as was a charge in 2006 for possession of a controlled substance in a school zone. Also, in 2006 Phipps was arraigned on charges of disturbing the peace, interfering with a police officer, disorderly conduct, and resisting arrest. On the latter charge, there was a disposition of no probable cause. The remaining charges were dismissed without conditions.
We discern from Phippss board of probation report that between May, 2005, and December, 2010, Phipps appeared in court for arraignment eight times covering an aggregate of twenty charges, all eventually dismissed.
As then in effect, G. L. c. 140, § 131(f ), did not explicitly provide for judicial review of license restrictions. Effective January 1, 2015, the right to appeal from license restrictions was made explicit. See St. 2014, c. 284, § 51. Unless otherwise noted, all references herein to G. L. c. 140, § 131, refer to the statute as in effect at the time of the events in this case, i.e., 2013. See St. 1998, c. 180, § 41. We do not suggest that our analysis or conclusions would be different under the current language of the statute.
Atkinson had accompanied Phipps to the meeting with Detective McDonough.
Having upheld the BMC judges denial of Phippss petition for review of the commissioners revocation of his license, the Superior Court judge did not reach the issue of the target and hunting restriction.
A person may also apply for a firearm identification card, which allows holders to own or possess a firearm, but only within their residence or place of business. See G. L. c. 140, §§ 129B, 129C.
In 2014, the Legislature amended § 131(d ), providing, inter alia, criteria for finding an applicant unsuitable based on
(i) reliable 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 (ii) existing factors that suggest that, if issued a license, the applicant or licensee may create a risk to public safety.
G. L. c. 140, § 131(d ), as appearing in St. 2014, c. 284, § 48.
Specifically, when asked at the BMC hearing who within the department makes the determination of suitability for ... a license to carry a firearm, Detective McDonough answered, I do. He further conceded that he alone, as the police commissioners designee, ... deemed Phipps unsuitable.
See DeLuca v. Chief of Police of Newton, 415 Mass. 155, 158-160 [612 N.E.2d 628] (1993) (finding of unsuitability based on criminal convictions that were subject of governors pardon); Howard v. Chief of Police of Wakefield, 59 Mass. App. Ct. 901, 902 [794 N.E.2d 604] (2003) (finding of unsuitability based on prior issuance of then-expired abuse prevention orders); Godfrey v. Chief of Police of Wellesley, [35 Mass. App. Ct. 42,] 47-48 [616 N.E.2d 485 (1993) ] (finding of unsuitability based on license holders refusal to cooperate with prior police investigation); MacNutt v. Police Commr of Boston, 30 Mass. App. Ct. 632, 635 [572 N.E.2d 577] (1991) (proper for licensing authority to condition suitability determination on passing test of firearm handling and firing proficiency) .... See also Hightower v. Boston, 693 F.3d 61, 74-76 (1st Cir. 2012) (rejecting challenge under Second Amendment to United States Constitution to revocation of plaintiffs license on suitability grounds after she provided false information in license renewal application). Simkin, 466 Mass. at 180-181, 993 N.E.2d 672.
See note 13, supra.
At oral argument, counsel for the commissioner argued that Phipps lied to the detective during the interview. We discern no support in the record, either at the BMC hearing, or elsewhere, that either the department or the commissioner ever accused Phipps of making a false statement of material fact to either Coleman or McDonough, or of failing to disclose material information relevant to the questions of suitability and proper purpose.
According to the court, the parties disputed whether the status of [the] matter at the time Hightower filled out the form amounted to pending complaints or charges within the meaning of the form. Hightower did not appeal from the revocation. Nor did she ever contact the department to inquire as to whether she had in fact answered a question on the form untruthfully. Hightower, 693 F.3d at 69.
The Hightower court concluded that inaccurately answering no to a question about the existence of pending charges could, depending on the nature of the underlying [undisclosed] complaints, materially impact suitability because [a]n accurate answer to the question is important to allowing the licensing authority to investigate further and make an informed decision on the licensing application. Hightower, 693 F.3d at 76.
The commissioner maintains that Phippss inaccurate answers about his history of dismissed charges are the equivalent of providing false information in connection with a license application. The licensing statute provides a criminal penalty for anyone who gives false information concerning his criminal record in an application for any form of firearm license or permit, G. L. c. 140, § 129, and also criminalizes knowingly filing a license application containing false information, G. L. c. 140, § 131(h ). Without suggesting that the commissioners argument is precluded, we note that nothing in the record indicates that Phipps was subsequently charged with either of these offenses.
We find no language in the licensing statute that supports the departments apparent practice of denying unrestricted licenses to carry firearms to first-time applicants who, like Phipps, are neither police officers nor attorneys.
At the BMC hearing, when asked on cross-examination whether the commissioner had provided him with any regulations or guidelines ... for making a determination of what is a proper purpose, Detective McDonough answered, I dont think I have any.
At the BMC hearing, McDonough agreed that his decision to restrict Phippss license to target and hunting was his normal course of procedure when processing licenses to carry, specifically, to restrict all first-time applicants licenses to target and hunting except for police officers or attorneys, who, once approved as suitable, were issued unrestricted licenses. In explaining the license restriction at the hearing, McDonough did cite Phippss criminal history but without elaborating on any aspect of it. Phipps had applied for and been denied a license to carry in 2009 (by an officer other than McDonough), which McDonough testified was due to his criminal history. In referring to Phippss criminal history after the 2009 denial -- which, as noted, involved no convictions -- McDonough testified that it wasnt substantial. Phippss record showed three arraignments after 2009, all occurring in December, 2010. Two were for nonmoving motor vehicle violations; the third was for possession with intent to distribute a Class D substance, which was continued without a finding and then dismissed.