NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
23-P-556
ADAM WEBSTER PERDOMO
vs.
WILLIAM G. BROOKS1 & another.2
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiff, Adam Webster Perdomo, filed an action in the
District Court under G. L. c. 140, § 131 (f), challenging a
decision by the defendant chief of police of the town of Norwood
(chief) not to reinstate Perdomo's license to carry a firearm
(LTC) despite the lapse of a G. L. c. 209A restraining order
against Perdomo.3 After an evidentiary hearing, a judge affirmed
1 As he is chief of police of the town of Norwood.
2 Dedham Division of the District Court Department.
3Section 131 has been amended several times during the period at issue. When the LTC was issued in 2019 and when the chief initially suspended it in December 2020, the governing version was § 131 as then most recently amended by St. 2018, c. 123, §§ 11-12. We refer to this as the 2018 version. When Perdomo unsuccessfully requested reinstatement and then sought the chief's decision that Perdomo remained unsuitable for
licensure. Perdomo then sought certiorari review in the
Superior Court, where judgment entered affirming the District
Court decision. Perdomo now appeals, arguing that the chief's
decision improperly relied on certain information that predated
the c. 209A order. Seeing no error in the District Court
judge's decision, and further concluding that Perdomo waived his
constitutional claims by failing to raise them in the District
Court, we affirm the Superior Court judgment.4
Background. We recite the essential facts as found by the
District Court judge, supplemented with undisputed facts drawn
from the record. In 2019, Perdomo applied to the chief for an
LTC. The police department's chief clerk reviewed the
application and provided the chief with records showing, among
other things, that Perdomo had a domestic incident with his
and obtained judicial review in the District Court, the governing version was § 131 as amended by St. 2014, c. 284, §§ 46, 47, 49, 52, and 54, with a delayed effective date of January 1, 2021. See St. 2014, c. 284, § 112. Therefore, despite its enactment in 2014, we refer to this as the 2021 version. The version presently in effect is § 131 as amended through St. 2022, c. 175, §§ 4-17A. We refer to this as the 2022 version. We note, where applicable, those instances in which the 2022 version differs from the prior versions on which we rely. Perdomo does not argue that any particular version of the statute should apply to our analysis of any particular issue.
We acknowledge the amicus letter submitted by the Attorney 4
General.
2 former wife in Boston in 2011 and three incidents with his
current wife in Norwood -- two in 2017 and one earlier in 2019.5
The chief then issued Perdomo an LTC -- a decision implying that
the chief had not found Perdomo so "unsuitable" as to warrant
the denial of Perdomo's application.6
On December 23, 2020, the chief sent Perdomo a letter
suspending his LTC on the ground that his wife had just obtained
an ex parte c. 209A order against him in Probate and Family
Court. As the chief explained at the evidentiary hearing, when
a court issues a restraining order against a licensee, the
police department that issued the license receives automatic
electronic notice, and then the electronic licensing system
5 The Boston incident led to Perdomo being charged with assault and battery; the charge was resolved with an admission to sufficient facts and a continuance without a finding for six months, after which the case was dismissed. The Norwood incidents, as described in police reports, involved verbal arguments in 2017 and 2019 that did not involve physical contact, and a 2017 argument in which Perdomo and his wife each claimed to have been physically assaulted by the other.
6 The 2018 version of § 131 (d), see supra note 3, provided that "[t]he licensing authority may deny the application [for an LTC] . . . or suspend or revoke [it] . . . if, in a reasonable exercise of discretion, the licensing authority determines that the . . . licensee is unsuitable . . . to continue to hold [an LTC]" (emphasis added). G. L. c. 140, § 131 (d), as amended through St. 2018, c. 123, §§ 11, 12. Under § 131 as now in effect, the licensing authority "shall" deny an application for, or suspend or revoke, an LTC "if the applicant or licensee is unsuitable to be issued or to continue to hold" such a license (emphasis added). G. L. c. 140, § 131 (d), as amended by St. 2022, c. 175, §§ 4-17A.
3 automatically generates a letter from the chief suspending the
license. This is because State law prohibits a person subject
to such a restraining order from holding an LTC. See G. L.
c. 140, § 131 (d) (vi) (all relevant versions, see note 3,
supra). See also 18 U.S.C. § 922(g)(8)(A) (prohibiting
possession of firearm by person subject to restraining order
issued after notice and opportunity to participate in hearing).
The chief testified that, after such an immediate
suspension, "we look further into the circumstances behind the
restraining order to see if there are other facts that we should
know about." "[W]e always, as a matter of course, seek the
affidavit filed by the plaintiff in support of the order." In
this instance, the affidavit filed by Perdomo's wife stated as
follows:7
"Adam has a habit of hurting me every time he gets upset. He grabs me by my arm and pushes me around. I have many pictures. Evidence to show the harm. I have had many conversations with Adam to stop this behavior and even seek medical advice. But it's going nowhere. Adam had a history of domestic violence in the past with his ex-wife. She filed a restraining order.
"Last aggressive behavior was last night when Adam pushed me so hard and I fell onto the ground while my nine-year- old was in the house. I need help to stop this. I can't do it on my own!"
7 Our quotation alters some aspects of the form of her statement, but not its substance. We have done the same in our quotations, infra, of her subsequent motion to terminate the order and her later letter to the chief.
4 The day after the c. 209A order issued, however, Perdomo's
wife filed a motion in Probate and Family Court to terminate the
order.8 In her motion, she stated in pertinent part as follows:
"After talking with my family I decided the best solution and fair for me is to file for divorce. This is the best for me and my kids! Please know this order is against my religion and beliefs and I want to exit this relationship peacefully. Please know this is the first time I filed for this order and had NO knowledge about it!"
She did not appear at the scheduled January 5, 2021 hearing to
extend the c. 209A order, and the case was dismissed.
The next day, January 6, 2021, Perdomo wrote to the chief
to request that his LTC be reinstated. After apparently
receiving no immediate response, Perdomo filed suit against the
chief in District Court on March 10, 2021.
In his complaint, Perdomo acknowledged that a person
subject to a current c. 209A order is statutorily ineligible for
an LTC, but he asserted that if such a person "is no longer the
current subject of [a c. 209A] order," the person is "no longer
8 Perdomo has failed to include in the record appendix the complete record of District Court proceedings filed in the Superior Court, which included his wife's motion and other exhibits from the evidentiary hearing. This violates the "fundamental and long-standing rule of appellate civil practice" that the appellant has an obligation "to include in the appendix those parts of the [record that] are essential for review of the issues raised on appeal." Shawmut Community Bank, N.A. v. Zagami, 30 Mass. App. Ct. 371, 372-373 (1991), S.C., 411 Mass. 807 (1992). We have nevertheless obtained and considered the complete record of the District Court proceedings. See Mass. R. A. P. 18 (a) (1) (D), as appearing in 491 Mass. 1603 (2023).
5 disqualified." Perdomo further acknowledged that the chief
could still "deny or suspend an LTC on the basis that a prior
[c. 209A] order renders [a person] 'unsuitable,'" but he
asserted that the chief had "failed to re-assess [Perdomo's]
suitability after the [c. 209A order was] terminated." The
complaint sought reversal of the suspension decision and an
order that the chief issue an LTC to Perdomo.
The day after Perdomo filed his complaint, the police
department's chief clerk sent Perdomo a second, "supplemental"
letter of suspension. The letter explained that Perdomo's LTC
"remains suspended . . . for reasons that you are presently
unsuitable for reinstatement based upon a totality of
circumstances related to a history of allegations of domestic
assault and/or threats."9
At the District Court evidentiary hearing, the chief
testified that although Perdomo's wife had asked that the
c. 209A order be terminated, she had not recanted any of the
statements she made in her earlier affidavit. That affidavit
9 The labeling of the second letter as "supplemental" was in one sense a misnomer. As we explain further, infra, that letter did not supplement the reason given in the first letter for the original suspension, which was that the pending c. 209A order disqualified Perdomo from licensure. Rather, the second letter stated the reason for continuing the suspension (i.e., refusing reinstatement) even after Perdomo was no longer disqualified: that Perdomo had also been determined unsuitable for licensure.
6 described Perdomo's "habit of hurting [her] every time he gets
upset" and his recent physical assault on her; it also referred
to Perdomo's history of domestic violence with her and Perdomo's
former wife. The chief acknowledged that at least some of that
history had been known to him at the time he originally issued
the LTC in 2019, but not the facts asserted for the first time
in the affidavit. In this case, the chief determined that,
based on the affidavit underlying the c. 209A order, there was
additional reason, beyond the temporary pendency of the
restraining order itself, to suspend Perdomo's LTC.10 The chief
explained that "we do occasionally write out a supplemental
letter [of suspension] when additional facts come to light."
Based on "the totality of the circumstances," the chief
"believe[d] that [Perdomo] was no longer suitable to be
licensed."
Perdomo himself also testified at the evidentiary hearing.
He stated that he had complied with the initial c. 209A order,
and that the affidavit was written and signed by his wife. His
10The chief acknowledged that he had also received a letter from Perdomo's wife, dated January 16, 2021, asking the chief, "on behalf of my husband and myself, to reinstate his LTC." It further stated, "I have absolutely no fear of him hurting me or our kids." The chief testified, however, that he gave "great weight" to the earlier affidavit, because it was written contemporaneously with the events it described and was signed under the pains and penalties of perjury.
7 counsel did not ask, and he did not say, whether the statements
in the affidavit were true.
After the hearing, the District Court judge issued a
decision "credit[ing] the testimony of [the chief] regarding the
information contained in the December 23, 2020 affidavit filed
by [Perdomo's wife] and[] the public safety concerns it raised."
The judge found "that [the chief] has articulated a reasonable
ground for his decision not to reinstate [Perdomo's] LTC." She
therefore affirmed the chief's decision "denying Mr. Perdomo
reinstatement of his LTC." On certiorari review, the Superior
Court affirmed the District Court's judgment. This appeal
followed.
Discussion. 1. Governing law. Under both the 2018 and
2021 versions of § 131 (f), an LTC "shall be revoked or
suspended by the licensing authority" -- here, the
chief -- "upon the occurrence of any event that would have
disqualified the holder from being issued such license" and "may
be revoked or suspended . . . if it appears that the holder is
no longer a suitable person to possess such license."11 G. L.
c. 140, § 131 (f), as amended through St. 2018, c. 123. A
11The 2022 version of § 131 (f) makes revocation or suspension mandatory upon a determination that the holder is no longer suitable. G. L. c. 140, § 131 (f), as amended through St. 2022, c. 175.
8 holder is "disqualified," i.e., is a "prohibited person," if the
holder, among other things, "is currently subject to . . . a
permanent or temporary protection order issued pursuant to . . .
chapter 209A." Id., § 131 (d) (vi) (B). And,
"[a] determination of unsuitability shall be based on: (i) reliable and credible information that the applicant or licensee has exhibited or engaged in behavior that suggests that, if issued a license, the applicant or licensee may create a risk to public safety; or (ii) existing factors that suggest that, if issued a license, the applicant or licensee may create a risk to public safety."12
Id., § 131 (d). "Upon revoking or suspending a license based on
a determination of unsuitability, the licensing authority shall
notify the holder of a license in writing setting forth the
specific reasons for the determination." Id. That an event is
not (or is no longer) disqualifying does not bar the licensing
authority from considering that event and the surrounding
circumstances on the issue of unsuitability. See Chief of
Police of Worcester v. Holden, 470 Mass. 845, 856 (2015); Chief
of Police of Wakefield v. DeSisto, 99 Mass. App. Ct. 782, 785
(2021).
12 The 2022 version of § 131 (d) provides that the determination shall be based on "reliable, articulable and credible information that the . . . licensee has exhibited or engaged in behavior that suggests that . . . [the] licensee may create a risk to public safety or a risk of danger to self or others." G. L. c. 140, § 131 (d), as amended through St. 2022, c. 175.
9 An aggrieved holder may seek judicial review in District
Court, and if the judge "after a hearing . . . finds that there
was no reasonable ground for . . . suspending . . . the license
and that the petitioner is not prohibited by law from possessing
a license, the [judge] may order a license to be . . .
reinstated." G. L. c. 140, § 131 (f), as amended through St.
2018, c. 123. The judge "may not second guess the licensing
authority's decision to take one reasonable action over another"
(quotation omitted). Chief of Police of Wakefield, 99 Mass.
App. Ct. at 786.
On appeal, we apply the same standard of certiorari review
as the Superior Court; we "examine the record of the District
Court . . . to correct substantial errors of law apparent on the
record adversely affecting material rights" (quotation omitted).
Chief of Police of Wakefield, 99 Mass. App. Ct. at 784-785. We
give no special weight to the Superior Court decision. See Doe
v. Superintendent of Sch. of Stoughton, 437 Mass. 1, 5 (2002).
2. Perdomo's claims of error. a. Claim and issue
preclusion. Perdomo first argues that, because the chief issued
him a license in 2019, the doctrines of claim preclusion and
issue preclusion barred the chief from determining in 2021 that
Perdomo was at that time unsuitable. We may assume for purposes
of argument the doubtful proposition that the chief's 2019
licensing decision was a "final order of an administrative
10 agency in an adjudicatory proceeding" that could have preclusive
effect against the parties in some other proceeding. Tuper v.
North Adams Ambulance Serv., Inc., 428 Mass. 132, 135 (1998),
quoting Stowe v. Bologna, 415 Mass. 20, 22 (1993). But even if
the licensing decision was made in an adjudicatory proceeding,
the chief was not a party to that proceeding; he was the
adjudicator. And, "[i]n the absence of statutory limitations,
administrative agencies generally retain inherent authority to
reconsider their decisions." Moe v. Sex Offender Registry Bd.,
444 Mass. 1009, 1009 (2005).
Furthermore, even if the chief were viewed as subject to
preclusive effect based on his own earlier decision, neither
claim preclusion nor issue preclusion would benefit Perdomo
here. Claim preclusion "bars further litigation of all matters
that were or should have been adjudicated in the [earlier]
action." Heacock v. Heacock, 402 Mass. 21, 23 (1988). But
whether the December 2020 physical assault on Perdomo's wife
described in her affidavit rendered Perdomo unsuitable was not
and could not have been litigated or considered in the course of
the chief's 2019 licensure decision, because the claimed assault
had not yet occurred. Similarly, issue preclusion applies only
where, among other things, the issue "actually was litigated and
determined . . . and . . . the determination was essential to
the decision in the prior action." Id. at 25. Here, whether
11 the December 2020 assault rendered Perdomo unsuitable was not
considered in, let alone determined by and essential to, the
2019 licensure decision.
More generally, we think it plain that earlier events, such
as Perdomo's history of domestic incidents with his former and
current wives, can take on added significance in light of
subsequent events, such as the 2020 physical assault. The chief
could reasonably view that assault as an indication that
Perdomo's earlier behavior, including physical assaults in 2011
and 2017, was not abating with time but instead was continuing.
The 2018 and 2021 versions of § 131 (f) provide that "[a]
license may be revoked or suspended by the licensing authority
if it appears that the holder is no longer a suitable person to
possess such license." G. L. c. 140, § 131 (f), as amended
through St. 2018, c. 123. The 2022 version makes such action
mandatory. See supra note 11. This language plainly authorizes
a police chief to reconsider a prior suitability determination,
and it does not restrict that reconsideration to only those
events occurring or becoming known after the LTC was issued.
See Moe, 444 Mass. at 1009. The unsuitability determination
must take into account whether an applicant or licensee poses "a
risk to public safety," G. L. c. 140, § 131 (d), as amended
through St. 2018, c. 123, or, as of 2022, "a risk of danger to
self or others." Id., as amended through St. 2022, c. 175. See
12 supra note 12. To read into the statute a limitation on what
information a chief may review in determining unsuitability
would frustrate the statute's public safety and protective
purposes.
In sum, under the 2018 and 2021 versions in effect when the
chief made his decision and the District Court upheld it, the
chief had "(i) reliable and credible information that the . . .
licensee has exhibited or engaged in behavior that suggests that
. . . [the] licensee may create a risk to public safety," i.e.,
that Perdomo was "unsuitable." G. L. c. 140, § 131 (d), as
amended through St. 2018, c. 123. If we were to apply the 2022
version, the chief also had such information regarding, at a
minimum, Perdomo's risk of danger to others. Indeed, Perdomo
acknowledged at oral argument that, putting aside his procedural
and constitutional arguments, the information in his wife's
affidavit was sufficient to support the determination of
unsuitability. The District Court judge therefore properly
determined that the chief had a "reasonable ground" for not
reinstating the LTC. Id., § 131 (f).
b. Chief's second letter. Perdomo nevertheless insists
that the chief had no authority to issue his second letter,
which stated that Perdomo's LTC remained suspended because his
record of domestic incidents made him "presently unsuitable for
reinstatement." Perdomo relies on the requirement that "[u]pon
13 revoking or suspending a license based on a determination of
unsuitability, the licensing authority shall notify the holder
of a license in writing setting forth the specific reasons for
the determination." G. L. c. 140, § 131 (d), as amended through
St. 2018, c. 123. See id., § 131 (f) ("Any revocation or
suspension of a license shall be in writing and shall state the
reasons therefor"). Perdomo argues that this language makes no
provision for, and thus implicitly prohibits, the chief's
issuance of a second letter stating additional reasons for a
license suspension. Thus, Perdomo claims, the District Court
judge, in reviewing the chief's decision, was limited to
considering the chief's original letter.
What Perdomo overlooks is that the chief made two
decisions, at separate times, and he issued a separate letter in
support of each. He issued one letter suspending the LTC based
on the pending c. 209A order, a mandatory disqualification for
an LTC. After that order lapsed, he issued a second letter,
declining Perdomo's request to reinstate the LTC, based on the
chief's determination that Perdomo was unsuitable. Only the
second decision was based on unsuitability, and it is only the
second decision that Perdomo challenges here.
This court rejected an argument similar to Perdomo's in
Chief of Police of Shelburne v. Moyer, 16 Mass. App. Ct. 543
(1983). In that case, a police chief denied an LTC application,
14 relying in his initial letter on a mandatory disqualifying
factor: the applicant's conviction for possessing a controlled
substance. Id. at 544. The conviction, however, had been
sealed. Id. A week after his initial letter, the chief sent a
second letter stating, as additional grounds for the denial,
that he had determined based on "factors surrounding [the
applicant's] arrest and conviction" that the applicant was "not
a proper person to carry firearms" under § 131. Id. Section
131 at that time authorized issuance of an LTC if the applicant
was not otherwise disqualified and appeared to be a "suitable
person." Id. at 545.
On judicial review, a District Court judge ruled that the
conviction, having been sealed, could not be considered a
disqualification, and so the judge ordered the chief to issue
the LTC. Chief of Police of Shelburne, 16 Mass. App. Ct. at
545. On appeal, we held that such an order was premature,
because the judge had not yet considered the chief's
determination that the applicant was unsuitable. Id. at 545-
546. "In the absence of a finding that no reasonable ground
existed for [the chief's unsuitability determination], the judge
was in error in ordering the issuance of the" LTC. Id.
The principle underlying Chief of Police of Shelburne
applies here. In both cases, even after the originally stated
mandatory disqualifying factor was determined not to support any
15 (or any further) denial of licensure, the District Court judge
was also required to review the chief's decision that the person
was not suitable for licensure. See Chief of Police of
Shelburne, 16 Mass. App. Ct. at 545-546.
We reject Perdomo's further argument that, because the
chief's second letter was not issued until after Perdomo sought
judicial review, it was an improper effort to "shore up the[]
case," was "innately arbitrary and capricious," was
"retaliat[ory]," "inherently illogical," and should not have
been considered. Once the c. 209A order lapsed, Perdomo had
applied for reinstatement of his LTC, but it appears that as of
two months later the chief had not yet responded, and so Perdomo
filed his District Court complaint, asserting that the chief had
"failed to re-assess [Perdomo's] suitability after the [c. 209A
order] was terminated." Although it might have been desirable
for the chief to respond more promptly, § 131 by its terms did
not require him to respond within any particular time, and he
responded the day after Perdomo filed suit.13 Perdomo offers no
evidence to support his allegations of improper motivation and
no explanation of how the timing of the letter conflicted with
§ 131's language or purpose or prejudiced him.
13In contrast, G. L. c. 140, § 131 (e) (all relevant versions, see note 3, supra), requires, with one exception, that an LTC application be approved or disapproved within forty days.
16 3. Constitutional claims. Perdomo also argues that § 131,
on its face and as applied, violates the Second Amendment to the
United States Constitution as interpreted in United States v.
Rahimi, 144 S. Ct. 1889 (2024), and New York State Rifle &
Pistol Ass'n v. Bruen, 142 S. Ct. 2111 (2022). He did not raise
such arguments in the District Court, or for that matter the
Superior Court, and therefore the arguments are waived. See
Albert v. Municipal Court of Boston, 388 Mass. 491, 493-494
(1983). The single passing reference to the Second Amendment in
Perdomo's twenty-one page District Court memorandum of law was
insufficient. See Chelsea Hous. Auth. v. McLaughlin, 482 Mass.
579, 584 (2019), quoting Nelson v. Adams USA, Inc., 529 U.S.
460, 469 (2000) ("[waiver] principle . . . requires that the
lower court be fairly put on notice as to the substance of the
issue").
Moreover, Perdomo failed to notify the Attorney General of
any constitutional claims while the case was in the District
Court, so as to give the Attorney General an opportunity not
only to defend the constitutionality of the statute but also to
make any factual record necessary to such a defense. See Mass.
17 R. Civ. P. 24 (d), 365 Mass. 769 (1974).14 For this additional
reason, we decline to reach Perdomo's constitutional claims.
Conclusion. The District Court correctly declined to
disturb the chief's decision. The judgment of the Superior
Court, upholding the District Court's judgment, is therefore
affirmed.
Judgment affirmed.
By the Court (Sacks, Ditkoff & Toone, JJ.15),
Clerk
Entered: September 23, 2024.
14Cf. G. L. c. 231A, § 8 (requiring notice to Attorney General of certain constitutional claims raised in declaratory judgment actions); Mass. R. A. P. 10 (a) (4), as appearing in 481 Mass. 1618 (2019) (requiring notice to Attorney General of certain constitutional claims raised in civil appeals). 15 The panelists are listed in order of seniority.