Interesting New Gun Case from Massachusetts’ Highest Court

From Firearms Records Bureau v. Simkin (Mass. Aug. 8, 2013):

Simkin is a New Hampshire resident and a federally licensed firearms dealer who is engaged in the “buying and selling [of] firearms in the region, from private parties, at gun shows, and at auctions.” Since 2002, he has held a temporary nonresident Class A unrestricted license to carry firearms in Massachusetts. In February, 2009, Simkin applied to the bureau for a renewal of his license, stating as his purpose for requesting the renewal that he traveled in and through Massachusetts for business purposes, carrying firearms, ammunition, and cash, and carried concealed firearms for personal protection. The bureau renewed his license.

On November 6, 2009, Simkin traveled to Stoneham for a medical appointment. At the medical office, and in order to protect his privacy, Simkin used a pseudonym (“Horace Jones”) and registered under a Maryland address. He also declined to provide a phone number, and, at the conclusion of the medical examination, paid the $1,500 bill in cash. Prior to disrobing in the examination room, Simkin informed the medical assistant that he was armed and proceeded to secure his weapons (two firearms, ammunition, and four knives) in a locked briefcase for the duration of the examination. Employees of the medical office were “alarmed” and “concerned for their safety” based on Simkin’s conduct, and one of the employees contacted Stoneham police much later that day to report their concerns….

By letter dated November 13, 2009, [Firearms Records Bureau] director Jason A. Guida informed Simkin that his license was thereby revoked because, on the basis of the information provided to him by McKinnon and the manager of the medical office regarding the incident on November 6, Guida determined that Simkin was no longer a “suitable person” to possess a firearm in Massachusetts. Specifically, Guida made this determination on the basis that (1) Simkin’s visit to the medical office while “heavily armed” fell outside the “business activity” of buying and selling firearms that Simkin indicated on his license application as the reason he sought the license; (2) Simkin caused “fear and alarm” at the medical office; and (3) Simkin used a false name in order to conceal his identity.

The Massachusetts Supreme Judicial Court unanimously reversed the denial of Simkin’s license (some paragraph breaks added):

Although the bureau is correct that a license holder’s conduct need not constitute a violation of the law or statutorily disqualify the license holder in order to form the basis for a revocation on unsuitability grounds, the bureau’s discretion to make a suitability determination is not without limits. A revocation will be overturned as arbitrary or capricious where “no reasonable ground” exists to support it.

Even when viewed in their totality, Simkin’s arguably unusual but otherwise innocuous actions did not provide a “reasonable ground” to deem him no longer a “suitable person” to carry firearms. This is particularly the case where the Executive Office of Public Safety and Security or its designee has not promulgated any regulations governing suitability, and therefore has provided applicants and license holders with little guidance on what it means to be a “suitable person.” In the absence of any such regulations, individual suitability determinations become more susceptible to attack on the ground that they are arbitrary and capricious.

Simkin held an unrestricted Class A license to carry firearms. Although Simkin indicated on his license application that he sought the license for reasons of personal protection related to his business activities, the license itself carried no restrictions; it entitled Simkin to carry firearms “for all lawful purposes.” The argument that Simkin’s carrying of firearms to his medical appointment demonstrated unsuitability because the appointment was not related to his business activities is therefore meritless.

The contention that Simkin’s being “heavily armed” contributed to his unsuitability is similarly meritless, where that characterization originated with the manager of the medical office (of unknown expertise with firearms), and where Simkin’s license permitted him to carry more than one firearm. [FN: Simkin vehemently objects to the bureau’s contention that he was “heavily armed.” He insists that he was “adequately armed,” taking into account the risk that one or more of his firearms might malfunction. As his counsel articulated at oral argument, “‘The rule’ is: One gun, no gun; two guns, one gun; three guns, two guns.”]

Next, we suspect that the average Massachusetts resident may become “alarmed” on learning that someone other than a law enforcement officer is carrying concealed weapons in his or her presence. However, Simkin is not responsible for alarm caused to others by his mere carrying of concealed weapons pursuant to a license permitting him to do exactly that.

Although the bureau claims that Simkin “went out of his way to show and inform certain staff members that he was … armed,” the record indicates otherwise. Simkin concealed his weapons until he was in the examination room and was about to disrobe, at which time he notified the medical assistant that he was carrying concealed weapons and was going to secure them, presumably so that she would not be alarmed. Further, he had disclosed the fact that he was armed immediately prior to disrobing during a previous visit to the same medical office, albeit to a different practitioner, and had received no objection to his behavior either during or after the visit.

Finally, there is the matter of Simkin’s concealment of his true identity at the medical office. The record shows that Simkin used a pseudonym and provided indirect contact information for the purpose of protecting his medical privacy. There is no suggestion that Simkin was attempting to commit a crime or perpetrate a fraud. Once he learned that the authorities (specifically, Detective McKinnon) wished to speak to him regarding his license, he was compliant and forthright. This is therefore not a case where an applicant or license holder has attempted to mislead the licensing authority.