DANA D. DUPRAS, SR. v. DEPUTY CHIEF OF POLICE OF FALL RIVER & Others.

• Court: Massachusetts Appeals Court
• Decided: November 16, 2023
• Docket: 22-P-0971
• Status: Unpublished

Opinion

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

22-P-971

DANA D. DUPRAS, SR.

vs.

DEPUTY CHIEF OF POLICE OF FALL RIVER & others.1

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Pursuant to G. L. c. 140, § 131 (f), the deputy chief of

the Fall River police department suspended the license to carry

(LTC) a firearm held by Dana D. Dupras, Sr. Following an

evidentiary hearing in the District Court, a judge affirmed.

Dupras sought relief in the nature of certiorari in the Superior

Court pursuant to G. L. c. 249, § 4. On the request of the

parties, a judge of the Superior Court entered an order

reporting "this matter" to this court pursuant to Mass. R. Civ.

P. 64 (a), as amended, 423 Mass. 1403 (1996), to address the

constitutionality of G. L. c. 140, §§ 131 and 131L. Because the

trial court judge did not consider the constitutional challenge

1 Justices of the Fall River Division of the District Court Department of the Trial Court. to the statutes and the Attorney General did not receive

adequate notice of the constitutional challenge as required by

Mass. R. Civ. P. 24 (d), 365 Mass. 769 (1974), and Mass. R. A.

P. 10 (a) (4), as appearing in 481 Mass. 1618 (2019), the report

is discharged, and the case is remanded to the Superior Court

for further proceedings.

Background. A brief procedural background is necessary.

On December 10, 2019, the deputy chief notified Dupras that his

LTC was suspended because he was an "unsuitable person" under

G. L. c. 140, § 131 (f). Dupras sought judicial review in the

Fall River District Court of the deputy chief's decision and

claimed the evidence did not support the determination that he

was an unsuitable person under the statute. On November 20,

2021, following an evidentiary hearing, a District Court judge

affirmed the suspension based on testimony showing Dupras'

improper storage of a firearm in violation of G. L. c. 140,

§ 131L.

On December 7, 2021, Dupras filed his complaint in the

nature of certiorari in the Superior Court. His complaint

raised two claims: (1) the suspension lacked evidentiary

support and (2) the suspension violated his right to possess

firearms and right to due process of law. Dupras served a copy

of the complaint on the justices of the Fall River Division of

the District Court Department of the Trial Court as a nominal

2 party. On April 5, 2022, attorneys from the Administrative

Office of the Trial Court (AOTC) filed an answer on behalf of

the justices, in the form of a certified copy of the Fall River

District Court proceedings. One AOTC attorney signed the answer

and certification as a special assistant attorney general. On

April 26, 2022, counsel for AOTC reported to Dupras' counsel

that AOTC "does not intend to file any pleadings in this matter,

beyond the Certified Court Record."

The next month, on May 5, 2022, Dupras filed a motion for

judgment on the pleadings, and the deputy chief filed an

opposition and supporting memorandum of law. On that same date,

Dupras also filed a "Certificate Pursuant to Superior Court Rule

9C" reporting AOTC's intention not to file any further pleadings

in the case.

While the motion for judgment on the pleadings was pending,

Dupras filed, on July 1, 2022, a motion for leave to file a

supplemental memorandum. As grounds in support of the motion,

Dupras noted the questionable "constitutionality" of G. L.

c. 140, §§ 131 and 131L, following the recent Supreme Court

decision in New York State Rifle & Pistol Ass'n v. Bruen, 142 S.

Ct. 2111 (2022) (Bruen). Counsel for the deputy chief and AOTC

assented to the motion, and Dupras forwarded a copy of the

motion to the Attorney General. On September 20, 2022, Dupras,

the deputy chief, and AOTC joined in a motion "for report of

3 motion for judgment on the pleadings for determination by" this

court. On September 26, 2022, a judge of the Superior Court

allowed the motion in an endorsement order "report[ing] this

matter to the Appeals Court."

On appeal, Dupras now raises four issues in his brief: (1)

whether the Bruen decision renders the firearm suspension

provisions under G. L. c. 140, § 131 (f), facially violative of

the Second Amendment to the United States Constitution, (2)

whether the Bruen decision renders G. L. c. 140, § 131 (f),

unconstitutional as applied, (3) whether the Bruen decision

renders the firearm storage provisions under G. L. c. 140,

§ 131L, violative of the Second Amendment to the United States

Constitution, and (4) whether the evidence before the District

Court judge was sufficient to support the determination that

Dupras was unsuitable to hold a LTC because he violated the

storage provisions of G. L. c. 140, § 131L. Dupras served his

brief on counsel for the deputy chief and AOTC, but he did not

serve the Attorney General.

Discussion. The Legislature has "allocate[d] to the

Attorney General complete responsibility for all the

Commonwealth's legal business." Feeney v. Commonwealth, 373

Mass. 359, 365 (1977). Consistent with this allocation, courts

require, at a minimum, special notice of a constitutional

challenge to a statute: "When the constitutionality of an act

4 of the legislature . . . is drawn in question in any action to

which the Commonwealth or an officer, agency, or employee

thereof is not a party, the party asserting the

unconstitutionality of the act . . . shall notify the attorney

general within sufficient time to afford [] an opportunity to

intervene." Mass. R. Civ. P. 24 (d). Under this rule, "the

obligation to notify the attorney general that the

constitutionality of an act of the legislature or of a

municipality is being questioned in the action is placed upon

the party asserting the unconstitutionality of the act."

Reporter's Notes to Rule 24 (d), Mass. Ann. Laws Court Rules,

Rules of Civil Procedure, at 38 (LexisNexis 2023). Similar

notice is required within fourteen days after an appeal is

docketed when the Commonwealth or an agency is not a party to

the appeal: "the party asserting the unconstitutionality of the

act shall notify the attorney general of such challenge." Mass.

R. A. P. 10 (a) (4).

We do not believe the Attorney General had sufficient

notice of the proceedings here becoming a wide-ranging challenge

to the constitutionality of G. L. c. 140, §§ 131 (f) and 131L.

The case began in the District Court as a routine review of a

decision regarding an LTC. At that point, the only parties were

Dupras and the deputy chief. Thereafter, AOTC became a nominal

party through the certiorari complaint in the Superior Court,

5 but the constitutionality of the statutes was not initially

challenged in that proceeding. Indeed, AOTC notified Dupras'

counsel that it "does not intend to file any pleadings in this

matter, beyond the Certified Court Record." As a practical

matter, after filing its answer, AOTC was not an active litigant

and had no reason to be given the routine nature of the dispute

between Dupras and the deputy chief. Once the scope of the

litigation expanded and Dupras challenged the constitutionality

of G. L. c. 140, §§ 131 (f) and 131L, the Attorney General

should have been fully notified of the entirety of the

proceedings as contemplated by Mass. R. Civ. P. 24. Apart from

that deficient notice, by the time the case reached this court

and the constitutional challenges evolved into a broadside

attack against two significant pieces of the statutory scheme

regulating firearms, the Attorney General should have been

notified "in writing or by use of any electronic method the

attorney general may designate for this purpose." Mass. R. A.

P. 10 (a) (4).

In these circumstances, the efforts at providing notice did

not suffice. Providing notice of the certiorari complaint to a

special assistant attorney general employed by AOTC, or even

obtaining assent to reporting the case by AOTC counsel, is not

the equivalent of providing notice to the Attorney General about

constitutional challenges to both statutes. Similarly, mailing

6 a copy of the motion to file a supplemental memorandum to the

Attorney General was not sufficient to apprise the Attorney

General of the context of the motion or the nature of the

evolving proceedings.

Here, the absence of specific notice to the Attorney

General is significant. Given the importance of the

constitutional issues raised, the Attorney General should have

had the option to intervene in the Superior Court proceedings.

See, e.g., Chardin v. Police Comm'r of Boston, 465 Mass. 314,

321 (2013) ("The Attorney General, on behalf of the

Commonwealth, was allowed to intervene to defend the

constitutionality of" G. L. c. c. 140, § 131 [d]). The city of

Fall River represents the narrow interest of defending the

actions of its deputy chief. By contrast, as the "chief law

officer" of the Commonwealth, Secretary of Admin. & Fin. v.

Attorney Gen., 367 Mass. 154, 159 (1975), the Attorney General

represents a broader interest, having been empowered by the

Legislature to "set a unified and consistent legal policy for

the Commonwealth" (citation omitted). Id. at 163. Put another

way, the Attorney General represents not just a city, but as a

statewide elected official, represents the interests of the

"supreme power" of our government –- "the people" –- and should

have an opportunity to be heard on an issue of such wide public

importance. Commonwealth v. Exxon Mobil Corp., 489 Mass. 724,

7 730 n.6 (2022), quoting Secretary of Admin. & Fin., supra at

161. The people, through the elected Attorney General, have not

been heard in this case.

Apart from our concerns about the notice provided, we

decline to accept this reported case due to its procedural

posture. As noted above, the case in the District Court did not

raise any question with respect to the constitutionality of the

statutes. Review in that court was "narrow in scope," Godfrey

v. Chief of Police of Wellesley, 35 Mass. App. Ct. 42, 45

(1993), and properly limited to determining whether, on all the

facts, there was a "reasonable ground" for suspending the LTC.

G. L. c. 140, § 131 (f). The certiorari proceeding in the

Superior Court was likewise limited to correcting "substantial

errors of law apparent on the District Court record." Godfrey,

supra at 43. See G. L. c. 249, § 4. In contrast to the limited

scope of review in the District Court and the Superior Court,

the report asks us, in the first instance, to provide a

comprehensive review of the constitutionality of two statutes

without benefit of the Attorney General's position or any

decision of a Superior Court judge. The truncated posture of

the present case illustrates why we have previously discouraged

reporting matters and encouraged "in most cases" full

adjudication in the trial court followed by the usual appellate

process. Commonwealth v. Lotten Books, Inc., 12 Mass. App. Ct.

8 625, 626 n.3 (1981). When discharging our function following a

trial court adjudication, "appellate judges benefit from rulings

of law made by trial judges, not least because sound rulings may

obviate an appeal altogether. When we have the benefit of a

decision by a trial judge, that is generally the jumping off

place for our own deliberative process." Transamerica Ins.

Group v. Turner Constr. Co., 33 Mass. App. Ct. 446, 447 n.2

(1992). See Heck v. Commonwealth, 397 Mass. 336, 339 (1986)

("to the extent that matters of public policy and constitutional

questions are raised, we have stated a preference for passing on

the issues in light of a fully developed trial record rather

than in the abstract").

The report is discharged and the case is remanded to the Superior Court for further proceedings consistent with the memorandum and order.

By the Court (Vuono, Hand & Hodgens, JJ.2),

Clerk

Entered: November 16, 2023.

2 The panelists are listed in order of seniority.