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Court orders BPD to give Dudley Square business owner a gun license

The Massachusetts Court of Appeals ruled today a Boston Police detective had no real good reason to deny the co-owner of a Dudley Square store a gun license for personal protection and ordered the department to issue him one.

Richard Phipps, who co-owns Essential Body Herbs on Warren Street in Dudley Square, had applied for a license to carry in 2013 after he was robbed at gunpoint at the store, at the urging of his co-owner - who himself had a license to carry and who had been robbed twice.

BPD responded five months later by issuing him a license restricted to target practice and hunting, which he said did him no good, and appealed to have the restriction removed, at a time when BPD was limiting new unrestricted gun licenses to police officers and lawyers.

According to the court ruling, he appealed to the department licensing division to have the restrictions removed, saying he was in charge of closing the store at night and depositing the day's cash in a nearby bank and that he often traveled through high-crime areas in Roxbury and Dorchester. He also noted how he had been held up at the store.

Det. John McDonough, then in charge of licensing, agreed to meet Phipps. But he asked Phipps for his license and put it in his pocket. At the end of the meeting, he said he was revoking even that permit, after concluding that Phipps was unsuitable to own a gun because Phipps had a record of arrests - even though none had resulted in conviction - had failed to provide the correct number of times he had been arraigned and had "mischaracterized" an earlier conversation with the officer who had taken his initial license application. According to the court:

Between 2005 and 2010 he was charged with various crimes, mostly nonviolent, including violations for possession or possession with intent to distribute a class D controlled substance [marijuana], and various automobile violations, each charge eventually dismissed.

In its ruling, the court agreed that police have the right to ban "unsuitable" people from getting unrestricted gun licenses - in fact, in another case today, it upheld a license denial in Natick. But the court said BPD failed to prove Phipps fell into that category, that any mistakes he made in recounting his arrest and arraignment record were minor and inadvertent, especially because the detective had his entire court record in front of him, and that Phipps had proven a legitimate need to carry a gun.

The commissioner's stated reasons for revoking Phipps's license - Phipps's mischaracterization to McDonough of his conversation with Coleman about the process to seek removal of the target and hunting restriction on his license, and his failure to accurately recite to McDonough the number of charges and the arraignments from his court history -- are not reasonably related to the statute's goal of keeping firearms out of the hands of persons who could cause a risk to public safety. Put another way, even if Detective McDonough's testimony about his meeting with Phipps is accurate, nothing in the record reveals any reasonable nexus between what Phipps said in that meeting and a risk to public safety. While Detective McDonough may well have found Phipps's account of his conversation with Officer Coleman "[v]ery unusual," that is not a sufficient reason to revoke his license. See Simkin, 466 Mass. at 181-183 (license holder's use of false name to check into medical appointment and employees' fear and alarm upon learning he was carrying concealed weapons, while "arguably unusual but otherwise innocuous actions," held not sufficient grounds to revoke license to carry).

The same holds true for Phipps's understated opinion about the seriousness of his court history, and his imperfect memory of the number of times he had been arrested and arraigned, going back a number of years. We find it significant that in his BMC testimony, Detective McDonough downplayed Phipps's inaccurate answers to these questions. Referring to the printout of Phipps's history of dismissed charges, McDonough stated: "In fairness to [Phipps], he had not seen it. It was on my desk and [Phipps] had not seen it in fairness to him." Furthermore, in his testimony, Detective McDonough acknowledged that there can be a difference between the number of arrests, the number of appearances for arraignment, and the number of charges.

The court continued that, unlike Phipps, who had shown ample reason for him to get a license, BPD's formal rejection letter, failed to explain the reasons for the rejection:

Detective McDonough testified that the department had no written guidelines for use in determining whether an applicant has demonstrated a "proper purpose" for carrying a firearm. In determining whether to remove restrictions on a license, Detective McDonough testified that he considers the following factors: whether the applicant is a member of law enforcement, an attorney, or a business owner, whether the applicant can demonstrate a reason to fear for his personal safety, and the applicant's criminal history. In response to Phipps's detailed written request to Detective McDonough for removal of the target and hunting restriction, in which Phipps explained that he was a victim of crime and that his business required him to deposit large sums of money on a regular basis, Detective McDonough informed Phipps by letter that his request was "denied because you could not show that you have a proper purpose to possess [an unrestricted] license." McDonough's denial letter made no mention of Phipps's history of dismissed charges, nor did it set forth any reasoning or explanation why he believed Phipps "could not show [he had a] proper purpose." Here, even under Detective McDonough's stated criteria for evaluating an applicant's "proper purpose" in seeking an unrestricted license, Phipps demonstrated a "proper purpose." He was a business owner who requested an unrestricted license to carry a firearm to protect himself and his property, in particular when closing his store at night and when carrying large amounts of cash to the bank, having already been a victim of robbery at gunpoint under that very circumstance. Thus, Phipps demonstrated a proper purpose for the issuance of an unrestricted license to carry a firearm.

So, the court concluded:

The judgment is reversed, and a new judgment shall enter in the Superior Court reinstating Phipps's license to carry a firearm, without restriction, for any lawful purpose.

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Comments

POC experience constant racism when it comes to the "discretion" afforded police. This is pretty damn obvious when it comes to gun laws and yet we hear nothing but crickets from the NRA!

LOL!

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Voting closed 33

Are you saying Commissioner Gross is a racist?

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You don't know who the commissioner was in 2013?

No, I'm not saying Evans was a racist, but don't try making up a stupid argument.

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Voting closed 27

I'm pretty confident that neither Evans nor Gross reviews individual LTC grants or denials.

I took the OP's point to be that the discretion afforded the detective can be (and was here) abused to further racially discriminatory ends. Unless someone involved in the process or this decision chimes in, I don't think we'll ever be able to prove or disprove that. We'll all go on believing what we believe.

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Voting closed 15

Is commissioner Gross commissioner of the NRA?

And if you don't think BPD officers can be racist, try wading into the sewer of filth that is Pax Centurion sometime.

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Voting closed 11

When Reagan proposed draconian gun restrictions to keep blacks in California from getting guns, the NRA supported gun control.

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A law that removes any and all evidence of arrests and arraignments that do not result in convictions.

This is a classic example of how police use the law to screw over POC just by arresting them for being POC.

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Voting closed 36

Sealed juvenile records aren't sealed in MA for the purposes of a license application. Continuations Without Findings are also admissible as a reason for denial. Many state laws are intentionally written with potential penalties in excess of 1 year deliberately to make them automatic disqualifiers for licenses.

This is a very deliberate effort by the legislature to deny mostly poor minitorities the same rights as affluent suburbanites.

The state has also been going through old microfiche to find things to yank licenses from people who have had them for decades in the past few years with the effort being made in major cities like Boston, Worcester, Brockton, and Springfield. They aren't doing the same for non-majority minority communities.

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BPD was limiting new unrestricted gun licenses to police officers and lawyers.

Why lawyers? Is gun safety something they teach in law school?

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Probably because they know lawyers would file a lawsuit challenging a denial without ample cause and they don't want to have to do the extra work in responding to that.

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Doctors and lawyers get special treatment in Boston and Brookline. Brookline has a long history of doing everything possible bar poor people from obtaining licenses with financially burdensome non-statutory requirements and most recently a mandatory waiver demanding that applicants sign away their right to a court review of a denied application.

93% of communities in MA issue unrestricted licenses, the remaining 7% of communities which only issue restricted licenses to average people are mostly minority majority. It's a serious 14th Amendment issue. The people at highest risk of victimization by criminals are left defenseless and it's mostly being driven by affluent people in safe neighborhoods afraid of poor minorities being lawfully armed.

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Voting closed 28

Because the MGL says so. Lawyers and members of the state legislator cannot have their LTC restricted. They could theoretically have their LTC denied outright, but if they are issued one it must be an unrestricted one. The legislator taking care of their own, as usual.

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Voting closed 7

Or any other, for that matter?

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They allow business owners to defend themselves from armed assailants who attack them in that neighborhood.

When seconds count, the police are minutes away, after all.

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Yes - more guns in the hands of the right people are good for the neighborhood. Do you live there? Have you had to live with the shootings within the surrounding blocks in the last few years? Or do you just assume that black people are going to kill each other no matter what we white people do?

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The track record of using additional guns to try to improve outcomes in gun fights is not especially great, especially in dense, urban areas where stray bullets are a major concern.

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that is an incredible phrase to use when citizens want to legally arm themselves,

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Newsflash! These restrictions impact all Bostonians who attempt to obtain a lawful license to carry concealed. That means black and white folks with a Boston zip code share an equally low chance of getting an unrestricted license - or "all lawful purpose" as they used to call it. It has nothing to do with him being black.

For those who don't know. The same background and clean record that would get someone an unrestricted license through a suburban police chief, will not guarantee the same unrestricted license if they live in Boston. BUT ITS A STATE LICENSE.

These are more of the tactics used to deter law abiding citizens from protecting themselves, while criminals flaunt the laws, and are given a slap on the wrist when found in possession of illegal firearms.

What a State.

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I wonder if you could achieve close to the same level of protection by purchasing a tactical hunting knife or extendable police baton? Maybe take a weapons class to learn to use them? With guns, you have to take the safety class so the time commitment in that respect is probably a wash.

I mean, if you're already being robbed at gunpoint, you are probably safer not drawing your weapon at all. I understand the need for some revenge and maybe firing when the guy turns his back to leave but it's probably not necessary.

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Boston has a knife ban ordinance and police batons are illegal under state law.

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It's funny watching construction workers show up at city hall to get permit, and they toss their swiss army knife into a bin at the metal detector, and security opens it up and measures the blade with a ruler to make sure it's legal.

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Can't shoot someone in the back in MA. Legal standard is imminent mortal harm to yourself or others. Nor do you want to be putting any rounds that might miss out there cause of the city being a densely built up environment

Boston already banned knives longer than 2.5" in 2000ish and police batons (asps) are considered deadly weapons meaning they are pretty much banned. You don't really want to get close someone trying to hurt you. A fool with blade will mess you up worse than a fool with a gun. Much bigger wounds to close up. If you ever had bayonet drill in the army you'd know no one wins in knife fights. You just lose less badly and hopefully don't bleed to death.

Boston doesn't allow people to carry stun guns or tasers with a restricted carry license so that nonlethal option is off the table. Even if you could have one I don't think the state courts would treat you any better than if you had used a gun. They went to the mat to curb stomp a homeless domestic violence victim all the way to the US Supreme Court. If the state went that far to screw a battered woman as an example to others do you really think they won't relish the opportunity to do it to you?

Pepper spray is now legal for every non felon over the age of 18. Better than nothing, great for fending off dogs/coyotes, but if someone is trying to really harm you it's only buying time to run or maybe break their grip. Druggies will probably shrug it off. Usually there's UV dye in it so cop's flashlights will pick it up if you got some perv or mugger in the face with it making it useful in that regard.

Boston's straight up discriminatory when doctors, lawyers, and rich people get theirs no special training required. Meanwhile poor people can only get "no carry" licenses to carry even if they are retired combat veterans.

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if someone is trying to really harm you it's only buying time to run or maybe break their grip.

It sounds like it would be perfect for someone who was worried about being robbed then.

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Not if the person robbing them has a weapon or the defender is in a position they can't retreat from.

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