Edward Peruta
Regular Member
Man challenging constitutionality of gun permit revocation
By Gary V. Murray TELEGRAM & GAZETTE STAFF
gmurray@telegram.com
WORCESTER — Citing a recent U.S. Supreme Court decision, a Shrewsbury man is challenging the constitutionality of a state law under which his license to carry a firearm was revoked five years ago by Police Chief Gary J. Gemme.
Lawyer Mel L. Greenberg, who represents Raymond J. Holden, filed an amended petition in Central District Court Sept. 10 appealing Chief Gemme’s 2005 revocation of Mr. Holden’s firearm’s license based on a determination that Mr. Holden was not a “suitable person” to carry a gun.
In a memorandum of law accompanying his amended petition, Mr. Greenberg said the term “suitable person,” as it appears in the law, is unconstitutionally vague given the Supreme Court’s June 28 ruling in the case of McDonald v. Chicago. The nation’s highest court ruled in a 5-4 decision in that case that the Second Amendment grants citizens a fundamental right to bear arms that cannot be infringed upon by state and local governments.
Mr. Holden, who has a place of business in Worcester, had been granted a license to carry a firearm in 2001, but the license was suspended by Chief Gemme on Sept. 14, 2005, four days after Mr. Holden was arraigned in Westboro District Court for an alleged assault on his wife.
The assault and battery complaint was dismissed Oct. 3, 2005, after Mr. Holden’s wife recanted a statement in a Shrewsbury Police Department incident report.
Judge Dennis J. Brennan, since retired, then ordered the reinstatement of Mr. Holden’s license in light of the dismissal of the assault charge. Chief Gemme followed the court’s order, but then revoked the license, saying he could consider underlying evidence that a crime had occurred even if a charge had been dismissed.
Mr. Holden appealed again and District Court Judge Robert L. Howarth, also since retired, ordered the reinstatement of the license. The city filed an appeal in Worcester Superior Court and Judge James R. Lemire sent the case back to Central District Court for another evidentiary hearing.
The hearing has not yet been held and the case has been continued to Nov. 8.
Lawyers for the city have not yet filed their written opposition to Mr. Holden’s amended petition for reinstatement of his license.
“The McDonald ruling adds the Second Amendment right to bear arms to the list of fundamental rights guaranteed to all citizens. Consequently, any state statute or regulation which restricts or regulates such a right is subject to the strictest judicial scrutiny to insure that it reasonably regulates without infringement of that right and that its application does not result in a denial of due process rights,” Mr. Greenberg wrote.
Vague laws violate due process “because citizens do not receive fair notice of the conduct proscribed by the statute and because they do not limit the exercise of discretion by officials, creating the possibility of arbitrary and discriminatory enforcement,” the lawyer said in his memorandum.
By Gary V. Murray TELEGRAM & GAZETTE STAFF
gmurray@telegram.com
WORCESTER — Citing a recent U.S. Supreme Court decision, a Shrewsbury man is challenging the constitutionality of a state law under which his license to carry a firearm was revoked five years ago by Police Chief Gary J. Gemme.
Lawyer Mel L. Greenberg, who represents Raymond J. Holden, filed an amended petition in Central District Court Sept. 10 appealing Chief Gemme’s 2005 revocation of Mr. Holden’s firearm’s license based on a determination that Mr. Holden was not a “suitable person” to carry a gun.
In a memorandum of law accompanying his amended petition, Mr. Greenberg said the term “suitable person,” as it appears in the law, is unconstitutionally vague given the Supreme Court’s June 28 ruling in the case of McDonald v. Chicago. The nation’s highest court ruled in a 5-4 decision in that case that the Second Amendment grants citizens a fundamental right to bear arms that cannot be infringed upon by state and local governments.
Mr. Holden, who has a place of business in Worcester, had been granted a license to carry a firearm in 2001, but the license was suspended by Chief Gemme on Sept. 14, 2005, four days after Mr. Holden was arraigned in Westboro District Court for an alleged assault on his wife.
The assault and battery complaint was dismissed Oct. 3, 2005, after Mr. Holden’s wife recanted a statement in a Shrewsbury Police Department incident report.
Judge Dennis J. Brennan, since retired, then ordered the reinstatement of Mr. Holden’s license in light of the dismissal of the assault charge. Chief Gemme followed the court’s order, but then revoked the license, saying he could consider underlying evidence that a crime had occurred even if a charge had been dismissed.
Mr. Holden appealed again and District Court Judge Robert L. Howarth, also since retired, ordered the reinstatement of the license. The city filed an appeal in Worcester Superior Court and Judge James R. Lemire sent the case back to Central District Court for another evidentiary hearing.
The hearing has not yet been held and the case has been continued to Nov. 8.
Lawyers for the city have not yet filed their written opposition to Mr. Holden’s amended petition for reinstatement of his license.
“The McDonald ruling adds the Second Amendment right to bear arms to the list of fundamental rights guaranteed to all citizens. Consequently, any state statute or regulation which restricts or regulates such a right is subject to the strictest judicial scrutiny to insure that it reasonably regulates without infringement of that right and that its application does not result in a denial of due process rights,” Mr. Greenberg wrote.
Vague laws violate due process “because citizens do not receive fair notice of the conduct proscribed by the statute and because they do not limit the exercise of discretion by officials, creating the possibility of arbitrary and discriminatory enforcement,” the lawyer said in his memorandum.