The Volokh Conspiracy

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Gun Carry Licenses, Self-Defense, and Sealing


From Montaquila v. Neronha, decided today by the Rhode Island Supreme Court, in an opinion by Justice Melissa Long:

On October 28, 2020, Providence police officers arrested Mr. Montaquila for misdemeanor simple assault after an incident involving his firearm at his place of business…. Eventually the government dismissed the charge against him.

On or after November 2, 2020, Mr. Montaquila applied to renew license No. 9012031, his concealed-carry license which was scheduled to expire on December 30, 2020. The application form questioned whether the applicant had "ever been arrested or charged for any offense[.]" Mr. Montaquila marked both the "yes" and "no" boxes and wrote "see letter attached."

In the undated letter attached to his application, Mr. Montaquila explained the incident as follows:

"[A] gentleman came into my business, which is a gas station and auto detailing facility[,] and became immediately combative and aggressive toward my staff because they would not perform certain work for free. He was clearly under the influence of drugs at the time. He began to throw items off the desk and act very threatening in my store.

"I came out of my office at my employees' request to mediate the situation. I told the gentleman he would have to leave the premises, and at that time he got very close to my face and shoved me away. At that point, I put my arms around his shoulders and walked him out the door. At no point did I strike, hit, or assault this person.

"The man then called the Providence Police, falsely reported that I assaulted him without reason, and I was arrested."

In closing his letter, he stated that the government had already dismissed the charge and that his record was set to be sealed on January 6, 2021.

Mr. Montaquila authorized the Attorney General to investigate his background and to disclose and review "all records and any other information concerning [Mr. Montaquila] whether such records and other information are public, private, privileged, or confidential." The police report describing the October 28, 2020 incident (incident report) included information that Mr. Montaquila did not disclose in the undated letter attached to his application.

Specifically, the incident report stated that the man who called the police told them that after Mr. Montaquila pulled him out of the store, Mr. Montaquila pulled a black gun from his waistband and pointed it at the man's head. When the police arrived at the scene, they found Mr. Montaquila's loaded black gun tucked into his waistband. The incident report also noted that Mr. Montaquila stated that he brandished his firearm because he feared the other man was attempting to retrieve a weapon from his car. Finally, the incident report stated that the allegation that Mr. Montaquila pointed the gun at the other man was "still under investigation."

On December 7, 2020, the case against Mr. Montaquila was dismissed pursuant to Rule 48(a) of the District Court Rules of Criminal Procedure. The Attorney General subsequently notified Mr. Montaquila that it required additional information, including motions or orders of expungement. Additionally, on December 26, 2020, the Attorney General asked then-Providence Police Chief Hugh Clements if he knew of any reason why Mr. Montaquila's application should be denied.

On January 6, 2021, the District Court granted Mr. Montaquila's motion to seal his record, and Mr. Montaquila sent the order to the Attorney General. Thereafter, on January 25, 2021, Chief Clements indicated that he knew of no reason why the Attorney General should deny the application.

By letter dated March 4, 2021, the Attorney General denied Mr. Montaquila's application. The letter stated:

"It has been decided by this Office, in its broad discretion to issue a permit to carry a pistol or revolver, to deny your application [d]ue to the last incident report CCR# 2020-89706 and arrest. In the police report you stated that you pulled you[r] firearm from your back area and brandished it. Your letter explaining the incident does not include the brandishing of your firearm." …

The clear, unambiguous language of [the sealing statute] plainly does not mandate the destruction of all records …. Nevertheless, we must assess whether the incident report and stated rationale suffice as adequate to support the denial….

The Attorney General argues that it did not rely on the sealed incident report, and states that in any case, the record reflects that Mr. Montaquila acknowledged the circumstances surrounding his arrest, as well as the propriety of the revocation of his prior license immediately following his arrest. The Attorney General further argues that it had broad discretion to consider these facts and how they bear upon whether Mr. Montaquila demonstrated that he had not, and would not, use his firearm for any unlawful or improper purpose; or whether Mr. Montaquila engaged in unlawful, dangerous, or violent conduct that justified denying his application.

We are unpersuaded by the arguments of the Attorney General regarding the denial letter and the inferences drawn from the evidence in the record. First, the denial letter, dated more than sixty days after the dismissal of the assault charge, clearly relies on the incident report. Specifically, it notes that the incident report included facts that Mr. Montaquila did not divulge in his license application and bases the denial on Mr. Montaquila's failure to state that he brandished the firearm. However, the omission of the word "brandished" in describing the incident is not legally competent evidence to support the denial.

Additionally, our examination of the record reveals no evidence to support the denial of Mr. Montaquila's license application. Nothing contained in the record demonstrates any investigation of Mr. Montaquila's fitness to carry beyond contacting Chief Clements on December 26, 2020. Having received the District Court order that reflects dismissal of the assault charge pursuant to Rule 48(a), as well as the January 25, 2021 notification from Chief Clements that he was not aware of any basis for denying the application, nothing before the Attorney General suggested that Mr. Montaquila acted in anything other than self-defense during the incident. Without any other evidence or rationale justifying the denial, Mr. Montaquila's omission is, at best, mere scintilla. We therefore conclude that there is no legally competent evidence to support the Attorney General's decision….

This case is remanded to the Attorney General with direction to renew the petitioner's concealed-carry permit.

Justice William Robinson dissented:

The fact that Mr. Montaquila's letter omitted an important and material fact relative to what occurred on October 28, 2020 is troubling in its own right. But the fact that the incident report indicated that Mr. Montaquila had "brandished" his firearm during the incident constituted, in my judgment, more than enough of a reasonable basis upon which the Attorney General could make his discretionary decision not to approve Mr. Montaquila's application. That decision was based on legally competent evidence, and the quantum of that evidence was far more than a scintilla.

The granting of the motion to seal resulted in the documents referenced in said motion being sealed. However, the facts recounted in those documents (of which the Attorney General was aware prior to the granting of the motion to seal) were not somehow nullified—nor could they be. The sealing statute brings about the sealing of records; it does not mandate the erasure from consciousness of factual knowledge concerning events that took place and were known prior to the issuance of the sealing order….

For these reasons, I heartily disagree with the majority's conclusion that "there is no legally competent evidence to support the Attorney General's decision." …

Congratulations to Frank Saccoccio, who represents plaintiff.