Court orders BPD to give Dudley Square business owner a gun license

The Massachusetts Court of Appeals ruled today a Boston Police detective had no real good reason to deny the co-owner of a Dudley Square store a gun license for personal protection and ordered the department to issue him one.

Richard Phipps, who co-owns Essential Body Herbs on Warren Street in Dudley Square, had applied for a license to carry in 2013 after he was robbed at gunpoint at the store, at the urging of his co-owner - who himself had a license to carry and who had been robbed twice.

BPD responded five months later by issuing him a license restricted to target practice and hunting, which he said did him no good, and appealed to have the restriction removed, at a time when BPD was limiting new unrestricted gun licenses to police officers and lawyers.

According to the court ruling, he appealed to the department licensing division to have the restrictions removed, saying he was in charge of closing the store at night and depositing the day's cash in a nearby bank and that he often traveled through high-crime areas in Roxbury and Dorchester. He also noted how he had been held up at the store.

Det. John McDonough, then in charge of licensing, agreed to meet Phipps. But he asked Phipps for his license and put it in his pocket. At the end of the meeting, he said he was revoking even that permit, after concluding that Phipps was unsuitable to own a gun because Phipps had a record of arrests - even though none had resulted in conviction - had failed to provide the correct number of times he had been arraigned and had "mischaracterized" an earlier conversation with the officer who had taken his initial license application. According to the court:

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 [marijuana], and various automobile violations, each charge eventually dismissed.

In its ruling, the court agreed that police have the right to ban "unsuitable" people from getting unrestricted gun licenses - in fact, in another case today, it upheld a license denial in Natick. But the court said BPD failed to prove Phipps fell into that category, that any mistakes he made in recounting his arrest and arraignment record were minor and inadvertent, especially because the detective had his entire court record in front of him, and that Phipps had proven a legitimate need to carry a gun.

The commissioner's stated reasons for revoking Phipps's license - Phipps's 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 statute's goal of keeping firearms out of the hands of persons who could cause a risk to public safety. Put another way, even if Detective McDonough's 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 Phipps's 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 (license holder's 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 Phipps's 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 Phipps's inaccurate answers to these questions. Referring to the printout of Phipps's 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.

The court continued that, unlike Phipps, who had shown ample reason for him to get a license, BPD's formal rejection letter, failed to explain the reasons for the rejection:

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 applicant's criminal history. In response to Phipps's 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." McDonough's denial letter made no mention of Phipps's 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 McDonough's stated criteria for evaluating an applicant's "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.

So, the court concluded:

The judgment is reversed, and a new judgment shall enter in the Superior Court reinstating Phipps's license to carry a firearm, without restriction, for any lawful purpose.