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September 18, 2010

Can dismissed domestic violence complaint justify revoking gun permit?

This local story from Massachusetts provides an interesting spin on both "sentencing" based on dismissed charges and the Second Amendment rights of those accused of violent behavior.  The piece is headlined "Man challenges state gun law: Constitutionality of 2005 permit revocation questioned," and here are the details:

Citing a recent U.S. Supreme Court decision, a Shrewsbury man is challenging the constitutionality of a state law under which his license to carry a firearm was revoked five years ago by Police Chief Gary J. Gemme.  Lawyer Mel L. Greenberg, who represents Raymond J. Holden, filed an amended petition in Central District Court Sept. 10 appealing Chief Gemme’s 2005 revocation of Mr. Holden’s firearms license based on a determination that Mr. Holden was not a “suitable person” to carry a gun.

In a memorandum of law accompanying his amended petition, Mr. Greenberg said the term “suitable person,” as it appears in the law, is unconstitutionally vague given the Supreme Court’s June 28 ruling in the case of McDonald v. Chicago.  The nation’s highest court ruled in a 5-4 decision in that case that the Second Amendment grants citizens a fundamental right to bear arms that cannot be infringed upon by state and local governments.

Mr. Holden, who has a place of business in Worcester, had been granted a license to carry a firearm in 2001, but the license was suspended by Chief Gemme on Sept. 14, 2005, four days after Mr. Holden was arraigned in Westboro District Court for an alleged assault on his wife. The assault and battery complaint was dismissed Oct. 3, 2005, after Mr. Holden’s wife recanted a statement in a Shrewsbury Police Department incident report.

Judge Dennis J. Brennan, since retired, then ordered the reinstatement of Mr. Holden’s license in light of the dismissal of the assault charge. Chief Gemme followed the court’s order, but then revoked the license, saying he could consider underlying evidence that a crime had occurred even if a charge had been dismissed....

“The McDonald ruling adds the Second Amendment right to bear arms to the list of fundamental rights guaranteed to all citizens.  Consequently, any state statute or regulation which restricts or regulates such a right is subject to the strictest judicial scrutiny to insure that it reasonably regulates without infringement of that right and that its application does not result in a denial of due process rights,” Mr. Greenberg wrote.

Vague laws violate due process “because citizens do not receive fair notice of the conduct proscribed by the statute and because they do not limit the exercise of discretion by officials, creating the possibility of arbitrary and discriminatory enforcement,” the lawyer said in his memorandum.

As regular readers know, the Supreme Court and lower courts have repeatedly upheld the constitutionality of enhancing an offender's criminal sentence based on acquitted and dismissed conduct.  But, of course, in those cases the offender has been duly found guilty of some other offense. 

Here, Mr. Holden has not been convicted of anything at all.  But, of course, he also is not being sentenced, just having his gun permit revoked.  And if Police Chief Gary Gemme has a sound basis for concluding that Mr. Holden did in fact beat his wife, his permit revocation decision would seem to accord with Congress's basic view (which finds expression in federal criminal law) that a person who commits even a minor form of domestic violence should never be allowed to possess a firearm under any circumstances.

September 18, 2010 at 02:50 PM | Permalink


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I'd imagine it would depend on whether it's a "Shall issue" or "May issue" community.

Posted by: Adrian | Sep 18, 2010 5:55:06 PM

And I would argue that "may issue" is in tension with Heller's command to D.C. that unless the city could find a valid reason to deny the permit it had to issue it. Especially when placed in the context of warning against arbitrary and capricious denials. Those two words are very apt descriptors for how most may issue jurisdictions I've read about operate.

Posted by: Soronel Haetir | Sep 18, 2010 6:51:11 PM

sounds to me like they have a police chief who thinks' he's a reborn adolf hitler...time to open that head and let in some air!

If the courts refuse to over turn this illegal stupidity...time for a few of them to get the same treatment.

Posted by: rodsmith | Sep 19, 2010 2:51:05 AM

Again this question is all about risk. Many factors go into this consideration. The commission of a crime may or may not be a factor. Think of it as something like insurance.

Posted by: Tom McGee | Sep 19, 2010 1:26:22 PM

this does seem like a arbitrary system that is hard to justify in light of the newfound existence/fundamentalness of personal 2d amendment rights. (although i wouldn't advocate "open[ing]" anyone's head over it)

when judges rely on aquitted conduct they are nevertheless required to determine that the conduct actually occurred by a preponderance or clear and convincing evidence, in an adversary proceeding where the defendant has an ability to challenge the evidence against him. also judges, while paid by the state, are more independent and less associated with the state than administrative officers like police chiefs. i wonder what kind of due process accompanies the police chief's determination in cases like this?

Posted by: Anon | Sep 19, 2010 3:46:10 PM

no actualy tom this is about using a so-called crime that he was NOT convicted of! under our constitution last time i looked NO GUILTY CONVICTION....NO CRIME. It never happened kind of hard to use something that NEVER HAPPEND to justify some action.

Would be the same thing as if some idiot came up to you and kept bugging you about someting YOU DIDN'T DO and demand you fix the problem caused by something you DIDN'T DO! Now me i'd be nice the first few times i informed them i didnt' do what they are taking about and they needed to leave me along...now if they kept it up i'd have no problem shoving my fist down their throat to get their attention.

Posted by: rodsmith | Sep 20, 2010 2:02:12 AM


You need not be convicted to lose some sort of benefit. The point here should be that given we are talking constitutional rights, the procedure here is too lax. This sort of thing should be prime material for a follow-up case to give Heller/McDonald some actual teeth.

Posted by: Joe | Sep 20, 2010 9:09:45 AM

sorry joe i suggest you use your computer and download a copy of the U.S. Constitution and then READ IT. Sorry under that document if your not CONVICTED your LEGALLY INNOCENT! i.e. IT DIDNT' HAPPEN! you CANNOT punish someone or strip them of either a right or a benefit based on something that legally DIDN'T HAPPEN. the problem we have is too many of the idiots we have now as lawyers and judges and even politicians managed to skip school the days this was taught.

Posted by: rodsmith | Sep 20, 2010 6:28:47 PM

Individuals have the right to possess weapons as they see fit for protection, food production and recreation.
Guns function as more than recreation for many families in rural communities throughout the world and even the US. The right to posses weapons is guaranteed under the Second Amendment in the US. It is also an ancient human right to protect oneself and have the ability to provide food using such weapons. The use of firearms is a question of personal responsibility and not a political scapegoat for failing infrastructure in urban areas

Posted by: YJ Draiman | Jan 14, 2011 7:47:49 PM

This mickey and i had got in the same prodictament i went to jail but when i went to court he told me time served and let me go but i was in jail for 6or7days he didnt say guilty or he dismissed the charges let me know what u think please thank u and i just a citizen

Posted by: mickey | Dec 15, 2012 4:51:44 PM

I am a retired law enforcement officer, until recently I have learned to look at the law completely different, lets say from an ordinary citizens position. I think the Domestic Violence Law needs to be revamped with in depth plain language that a two year old would understand. I had a CDV charge back in 2000 and as a law enforcement officer I did exactly what the law says I am to do. I notified my Capt. and explained the issue of a disgruntled ex. More over I explained that I was going to file for an restraining order. Well the day came for the court appearance. I was so shocked that the judge reversed the restraining order and gave my ex a temp restraining order. I need not say how pissed I was. My saving grace was that I informed my superiors on the incident and was able to keep my job with restrictions. My point is this every poor guy that has a gun and a girlfriend beware, it can take years for you to clear this issue up; at least to a degree were you can walk with your head up. Every poor sap that is dragged in handcuffs into a station has become the subject of a long bout with the state courts. I know from experience I had knife cuts, busted head, and had to crawl through the swamps of South Carolina just to get away from this crazy women. This is a true story and if you want your rights to carry a weapon never tell a girlfriend that you have guns or a permit to carry one. Now understand dealing with the wife is a lot different when she raises her voice you HIT THE DAME DOOR. Good luck Men from a old cop!!!

Posted by: Gerald | Mar 3, 2014 11:12:43 PM

A misdemeanor lost constitutional right is Bullshot. The DV and loss of second amendment is a Clinton gun grab and needs repealed. Is a torn shirt domestic violence. Anyone can retaliate against there partner with this law. I do not believe a person should be arre

Posted by: joe tast | Jan 28, 2017 4:59:04 PM

A misdemeanor lost constitutional right is Bullshot. The DV and loss of second amendment is a Clinton gun grab and needs repealed. Is a torn shirt domestic violence. Anyone can retaliate against there partner with this law. I do not believe a person should be arre

Posted by: joe tast | Jan 28, 2017 4:59:04 PM

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