Massachusetts Denial of Gun Rights Restoration Reversed by Appellate Court

From In the Matter of K.P., decided June 26, 2024 by the Massachusetts District Court Appellate Division (Judge Thomas L. Finigan, joined by Judges Kevin J. Finnerty and Jean M. Curran) but only recently posted on Westlaw:

In the fall of 2016, the appellant's addiction to painkillers and fentanyl led to the filing by his mother of a "section 35" petition in the District Court. General Laws c. 123, § 35 ("section 35") authorizes the involuntary civil commitment of a person for care and treatment where "there is a likelihood of serious harm as a result of the person's alcohol or substance use disorder." After examination by a court clinician and a subsequent hearing, a District Court judge committed the appellant ("K.P.") to a substance abuse treatment facility for a period not to exceed ninety days. K.P. did not appeal his commitment and was discharged from the facility approximately one month later.

A civil commitment under section 35 has a collateral consequence—it disqualifies an individual from holding a license to carry a firearm. The bar is not absolute. Rather, after the passage of five years, a person may file a petition with the District Court that ordered the commitment, seeking relief from the disqualification to obtain or restore a license to carry. In this case, K.P. did so and was denied. K.P. now appeals that denial….

The court [in a section 35 restoration proceeding] may grant relief "in accordance with the principles of due process" if the person's circumstances, record, and reputation are such that "(i) the person is not likely to act in a manner that is dangerous to public safety; and (ii) the granting of relief would not be contrary to the public interest." In so doing, the court may consider the opinion of a licensed physician or clinical psychologist that the person is "no longer suffering from the disease or condition that caused the disability or that the disease or condition has been successfully treated for a period of 3 consecutive years."

Roughly six and a half years following his commitment, K.P. filed a petition in the court that ordered his commitment seeking to restore his right to possess a firearm. In support of his petition, K.P. submitted letters from his father, mother (the original petitioner under section 35), and his girlfriend, as well as a letter and affidavit from K.P. himself, which included copies of clean drug screenings mandated by his employer. The supporting materials described K.P. as an individual who had overcome his addiction, maintained employment as a commercial truck driver, obtained his real estate salesperson's license, and was in a long-term relationship with his girlfriend while parenting his children. Nonetheless, a District Court judge denied K.P.'s petition without a hearing.

Beyond the requirement that a court may grant relief "in accordance with the principles of due process," section 35 is silent as to how such petitions should be considered….

At a minimum, due process requires notice and an opportunity to be heard. Because a constitutional right is at stake, we find that a court faced with a petition to restore a license to possess a firearm following a section 35 commitment should conduct a hearing with testimony under oath. This will permit the judge to assess credibility and question the petitioner, at what is essentially a one-sided, non-adversarial proceeding. Such a hearing will allow the petitioner to offer, as suggested by the statute but not required, the opinion of a licensed physician or clinical psychologist as described above.

The focus of the hearing, understandably, should be whether the petitioner has satisfied the provisions of section 35 that would warrant relief, namely, whether the person is not likely to act in a manner that is dangerous to public safety and the granting of relief would not be contrary to the public interest. Lastly, because section 35 provides a de novo avenue of appeal to this Appellate Division for a petitioner who is denied relief, such a hearing will provide a record upon which review can be made. For those reasons, we return this matter to the District Court for a hearing in accordance with this decision.

Because the issue may arise at the hearing, we address the issue of the standard of proof required. Section 35 is silent on the topic, but we note that under somewhat analogous hearings held before the firearms review board (the "board"), the petitioner must prove by "clear and convincing evidence" that the petitioner is a suitable person to be a license to carry holder. By statute, an applicant for a license to carry who has been previously convicted of an offense punishable by two and one half years or less may, after five years from the date of final disposition, petition the board for review of eligibility to be a license to carry holder. Such hearings are to be conducted in an informal manner but according to the rules of evidence and with witnesses sworn. On return of this case, the court should follow the same procedure.

Charles H. Basler (Law Office of Adam M. Bond) represented plaintiff.

Comments

[not guilty]

Judge Kevin Finnerty? I recall that that was the name of a character played by James Gandolfini on an episode of The Sopranos -- the patio furniture salesman alter ego of Tony Soprano during a coma dream after being shot by Junior. One line that stuck with me was "Kevin Finnerty? Yeah, he drives a Lexus."

[darkknight9]

Yeah, he was a heating systems salesman from Arizona. The monks in those dreams were priceless.

[John F. Carr]

Will federal law recognize the restoration of rights if he wins? In the past the federal government has refused to recognize restoration of the right to carry a long gun and restoration of rights following Massachusetts misdemeanors that are considered federal law felonies.

[BrianB_NY]

If I read that correctly, he was never convicted of a crime, rather he was involuntarily committed to a treatment facility. Do you have a citation that says drug/alcohol treatment is a federal felony?

[Dr. Ed 2]

I think the bigger question here is what the impact will be on Massachusetts chapter 123.
https://www.mass.gov/info-details/civil-commitment-and-hospital-admissions-forms

IANAA but have sat through student affairs, training sessions taught by purported attorneys and what they said was it while it takes an actual civil commitment with a judicial process for someone to lose federal gun rights, the mere 12 a process by a registered nurse or social worker is enough for the person to lose Massachusetts gun rights FOR LIFE.

In Siri one can get a licensed psychiatrist to state in writing that he knows the reason for the section 12 and is no longer concerned about that however no psychiatrist ever sign that because of the liability it would expose him to and thus we were told the 12 a is a lifetime ban.

And the question I raise is that if a constitutional right can be arbitrarily revoked without redress, Legal, or otherwise, what value is the right and how long will it be before Massachusetts extends this to other rights such as free speech?

[John F. Carr]

The Appellate Division of the District Court hears appeals from minor civil cases, like traffic court. I think criminal cases go straight to the regular Appeals Court.

The Appellate Division of the Superior Court hears only appeals from criminal sentences. A felony defendant can ask to be resentenced by a panel of three judges. Appeals from the underlying conviction go directly to the Appeals Court (or Supreme Judicial Court in the case of first degree murder).

[darkknight9]

I know its a broad, sweeping generalization but does Massachusetts do anything simply or without needing sat nav to guide you through? 🙂

[Dr. Ed 2]

Think 400 years of lawyers, all building on the work of their predecessors.

[Dr. Ed 2]

https://www.cnn.com/2026/02/14/americas/canada-shooting-gun-buyback-criticism-latam-intl

This may result in the province of Alberta succeeding from Canada, and under the Canadian constitution they can unilaterally do that if the international community recognizes the breakaway province as a separate country. The province Quebec repeatedly threatened to do that in the 70s, which is how a small minority got bilingualism into the country.

Well, Donald Trump‘s statements about Canada becoming another state have a different meaning when one realizes this, all Donald Trump has to do is recognize Alberta as a separate country and under the Canadian constitution, it is one.

On October 19, the province of Alberta is going to vote on independence which becomes before the October 30 deadline for the gun grab. This well could happen. We were essentially talking about Montana being governed by Massachusetts, and they don’t like it.

For those not familiar with geography, Alberta is in Western Canada, it has a third largest reserve of oil in the country. It’s major producer fertilizer, and as other resources.

Practically speaking, this would create the same problem that a Quebec succession would’ve created as almost all Canadians live within 100 miles of the US border, and all of the east west highways and railroads are located there as well.

It is theoretically possible to build a highway or railroad through the far north, unlike Siberia, there are a lot of rivers and lakes that would have to be bridged, which would further complicate things, and it would be quite expensive to the point of infeasible.

So Alberta, as a separate country would require all travel between British Columbia on the left coast and the rest of Canada to go through a foreign country, either through the foreign country of Alberta, or the United States.

Railroads already do this, the Canadian oil trains traveling between Quebec and the Irving refinery in New Brunswick go through Maine because of geography. But highways involve clearing customs We are a railroad can be bonded and sent through without stopping for customs. This would dramatically isolate British Columbia, which is already tied to California because the movie business and other things.

Politically, I could see the introduction of both Alberta and British Columbia as states so as to balance each other off in the Senate.