M.G.L. c. 140, § 129B formerly permitted a licensing authority to deny a firearm identification card (FID) only if the applicant was a “prohibited person” under the statute. The statute was amended effective January 1, 2015, to add subsection 129B (1½) to provide for another grounds for denial – a finding that the applicant is an “unsuitable person.” The denial cannot be made by the licensing authority, however. The licensing authority must petition the District Court for a finding that the applicant is unsuitable.
A subsection of the statute (§129B (3)) requires that the licensing authority either approve or deny the FID under the prohibited person standard within 40 days. In Town of Plymouth v. Power, 18-P-1362 (Appeals Court May 29, 2020), the Town petitioned the District Court for a finding that the applicant was unsuitable, but not until over 100 days had passed since the applicant filed for his card. The question, then, was whether the petition to the District Court required by Section 129B(1½) must also be filed within 40 days and if it is not, what is the effect of the untimely filing?
The District Court held that the 40 day deadline applied to the filing of the petition and the consequence was constructive approval of the card. It further held, in the event another court disagreed with its remedy, that the Town’s petition setting forth the reasons that the applicant was unsuitable were neither arbitrary nor capricious. The Superior Court agreed that the 40 day deadline applied, but disagreed that the card had been constructively approved. It further agreed that the Town’s decision was not arbitrary or capricious.
The Appeals Court disagreed with both lower courts. It stated that the statute means the following:
Regardless whether the petition to the District Court must be filed within 40 days of the filing of the application for an FID, a question that the Appeals Court did not need to answer for its decision in this case, the remedy if the Town fails to file the petition is not constructive approval of the FID. The applicant’s remedy is to petition for relief with the District Court pursuant to G.L. c. 140, § 129B(5).
The District Court is required to make the finding whether the applicant is suitable or unsuitable. It does not apply the “arbitrary and capricious” standard to the assertions included in the Town’s petition.
If your municipality wishes to petition for a finding of unsuitability of an applicant for an FID card, it is best not to delay. But you should still file the petition even if more than 40 days have elapsed since the application for an FID card was filed.
