Wetherbee v. Costerus

13 Mass. L. Rptr. 159
CourtMassachusetts Superior Court
DecidedMay 1, 2001
DocketNo. 002352
StatusPublished

This text of 13 Mass. L. Rptr. 159 (Wetherbee v. Costerus) is published on Counsel Stack Legal Research, covering Massachusetts Superior Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Wetherbee v. Costerus, 13 Mass. L. Rptr. 159 (Mass. Ct. App. 2001).

Opinion

Fabricant, J.

Leonard J. Wetherbee, Chief of the Concord Police Department, brings this action under G.L.c. 249, §4, seeking certiorari review of a decision of the Concord District Court reversing Wetherbee’s denial of Alec S. Costerus’s application for a license to carry firearms. Before the Court is plaintiff Wetherbee’s motion for judgment on the pleadings pursuant to Mass.R.Civ.P. 12(c) and Superior Court Standing Order 1-96. For reasons that will be explained, Wetherbee’s motion will be allowed.

BACKGROUND

The Concord District Court record establishes the following factual and procedural history.1 On January 3, 2000, Alec Costerus, the defendant in this action, filed in the Concord District Court a pro se complaint seeking judicial review, pursuant to G.L.c. 140, §131(f), of a decision of Concord Police Chief Wetherbee denying his application for a license to carry firearms. Costerus’s complaint alleged that he held a firearms identification card issued by the Town of Marion on April 10, 1978, that he had held a license to carry issued by the Town of Marion on March 21, 1982, which had expired on April 26, 1986, and that he “properly applied” for a license to carry on November 24, 1999. He went on to allege that Wetherbee denied his application “for: (i) failing to comply with a Concord Police Department Administrative Policy requiring the completion of a state approved firearms safety course when upgrading from a Firearms Identification Card to a License to Carry; and (ii) his recent involvement in domestic and firearms related issues in the Town of Concord.” Costerus’s complaint further alleged that “(i) he is statutorily exempt from the firearm safety course requirement and (ii) he is a suitable person as those criteria are statutorily set forth.” His complaint proceeded to present arguments to the effect that he was exempt from the firearm safety certificate requirement of G.L.c. 140, §131P(a), because of his previous license, and that he was a suitable person because he had been acquitted of criminal charges against him arising from Em incident on March 21, 1999, in which, he alleged, Concord Police had “conducted a groundless and warrantless search” of his home.

Chief Wetherbee responded to Costerus’s complaint, also pro se, by filing an answer. Wetherbee’s answer admitted the material factual allegations of the complaint, and asserted that he had acted within his discretion in denying Costerus’s application because “due to plaintiffs recent involvement in domestic and firearms related issues, the Plaintiff is not a suitable person for carrying firearms.” Wetherbee asserted also that Costerus “has failed to provide a sufficient reason for requesting the issuance of a license to carry firearms for all lawful purposes,” and that “the Plaintiff had been taken into custody in Decatur, Illinois on October 17, 1997, for an alleged domestic battery.

On February 23, 2000, Costerus filed a motion for summary judgment in the District Court, supported by attached copies of his license application, Wetherbee’s letter of denial, and other pertinent documents. The District Court’s docket reflects that it held a hearing on the motion on February 23, 2000, and ordered the matter “remanded to Town for further hearing.” The next event reflected in the District Court’s docket is a hearing on March 6,2000, at which the Court ordered “Concord P.D. must respond by 3/15/00. Hearing continued until 3/20/00. The Judge stipulated that the weapons cannot be transported elsewhere until hearing.”

On March 15, 2000, counsel appeared for Wetherbee and filed a cross motion for summary judgment with various materials appended in support. Among these was a letter of the same date advising [160]*160Costerus of Wetherbee’s decision “on reconsideration,” denying Costerus’s application “for the following reasons: 1. You provided false information on the application for a License to Carry Firearms. Specifically, you answered in the negative to question number 13 despite two arrests on domestic abuse charges and you failed to disclose your arrest on a domestic abuse charge in Illinois. 2. Your recent involvement in domestic and firearms related issues in the Town of Concord and a domestic abuse arrest in Illinois indicate that you are not a suitable person to carry firearms.” On March 20, 2000, the District Court held a hearing on the cross motions for summary judgment, and issued its decision in favor of Costerus.

The documents appended to the cross motions, as filed in the District Court, provide the following factual background.2 Costerus made his application for a “Class A License to Carry Firearms Large Capacity” by submitting to the Concord Police Department a standard form application, dated November 15, 1999. Costerus signed the application form, certifying that “I understand that any false answer(s) will be just cause for denial of. . . my license to carry firearms.” In response to a series of numbered questions, he answered “Yes” to “Have you ever been arrested?” and to “Have you ever appeared in any court as a defendant in a criminal case?” but “No” to question 13, “Are you now or have you ever been the subject of a M.G.L.c. 209A restraining order or involved in a domestic violence charge?” The form then calls for “details which must include dates, circumstances and location” of any affirmative answer, to which Costerus answered, “On 3/21/99 I was arrested in Concord for domestic A&B (nolle pros), possession of a firearm without a valid FID card (dismissed) and security violation (dismissed). On 7/2/84, I was arrested in Marion and charged with interference (dismissed).” In response to “reason(s) for requesting the issuance of a license to carry firearms” Costerus answered “ ‘Any Lawful Purpose.’ Please see attached addendum.” His addendum indicated that he sought to “lawfully purchase, possess, store, keep, or carry any lawful manner of shotgun, rifle, or handgun” as well as “reloading equipment, supplies, and ammunition,” “lawfully obtain, carry, and use firearms in training courses, practice, competitive events, hunting or instructing others in safe firearms operation, marksmanship, or other such activity,” “lawfully use a firearm in defense of my life, the life of family member or that of another should the need ever arise,” “lawfully sell any firearm that I own to another properly licensed Massachusetts resident,” and “lawfully perform any other task involving firearms and their components."3

Details of the Concord arrest that Costerus disclosed on his application appear in a Concord Police Incident Report. According to that report, on March 21, 1999, at approximately 4:00 p.m., Costerus stopped Officer Landers at a town parking area and asked for an escort to his residence “so he could pick up some belongings” after an argument with his wife.

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Bluebook (online)
13 Mass. L. Rptr. 159, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wetherbee-v-costerus-masssuperct-2001.