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DuPont v. Nashua Police Dep't

Supreme Court of New Hampshire

February 20, 2015

Greg DuPont
Nashua Police Department Gregory DuPont
Peter McDonough & a

Argued: June 26, 2014.

Page 240

Petition for certiorari filed at, 05/21/2015

9th Circuit Court - Nashua District Division Hillsborough-southern judicial district

Penny S. Dean, of Concord, by brief and orally, and Jay Edward Simkin, non-attorney representative, by brief and orally, for the petitioner.

Stephen M. Bennett, corporation counsel, of Nashua, on the brief and orally, for respondent City of Nashua.

Joseph A. Foster, attorney general ( Rebecca L. Woodard, assistant attorney general, on the memorandum of law and orally), for respondents Peter McDonough, Christopher B. Casko, John J. Barthelmes, and Sean Haggerty.

HICKS, J. DALIANIS, C.J., and CONBOY, LYNN, and BASSETT, JJ., concurred.


Page 241

Hicks, J.

In these consolidated cases, the petitioner, Gregory DuPont, appeals: (1) an order of the Circuit Court ( Leary, J.) affirming the revocation by the respondent City of Nashua (City), through its chief of police, of his license to carry a loaded pistol or revolver; and (2) an order of the Superior Court ( Nicolosi, J.) denying his motion for preliminary injunctive relief in a proceeding brought against the respondents Peter McDonough, Sean Haggerty, Christopher B. Casko, and John J. Barthelmes, challenging the denial of his request for an armed security guard license. We reverse and remand.

The following facts are taken from the trial courts' orders or are supported in the record. In 1998, the petitioner was convicted in Massachusetts of operating a motor vehicle under the influence of liquor (the 1998 conviction). That offense was a misdemeanor that carried a potential maximum prison sentence of two and a half years. Thus, the petitioner's 1998 conviction rendered him ineligible, under Massachusetts law, to possess or carry a firearm, at least as of the 1998 amendments to the Massachusetts firearms laws. See Dupont v. Chief of Police of Pepperell, 57 Mass.App.Ct. 690, 786 N.E.2d 396, 398-400 (Mass.App. Ct. 2003) (applying 1998 amendments where conviction predated them), Mass. Gen. Laws Ann. ch. 140 § § 129B (West Supp. 1997) (amended 1998, 2000, 2002, 2003, 2004, 2010, 2011, 2014), 129C (West Supp. 1997) (amended 1998, 1999, 2010, 2014), 131 (West Supp. 1997) (amended 1998, 2002, 2003, 2004, 2008, 2010, 2011, 2014), Mass. Gen. Laws Ann. ch. 269 § 10(a) (West Supp. 1997) (amended 2006, 2014), (h) (West Supp. 1997) (amended 1998, 2006). In 2005, upon the petitioner's petition for review, the Massachusetts Firearm Licensing Review Board (FLRB) found that the petitioner was " a suitable person to possess a license to carry firearms, and his right to possess a firearm therefore is fully restored in the Commonwealth." The FLRB accordingly determined that, notwithstanding the 1998 conviction, the petitioner could apply to his licensing authority for a license to carry firearms.

In 2007, the City's chief of police issued the petitioner a license to carry a pistol or revolver, and that license was renewed in 2012. In 2009, the New Hampshire Department of Safety (DOS) issued the petitioner an armed security guard license.

Sometime prior to June 29, 2010, Sergeant Lobrano of DOS became aware of the 1998 conviction and determined that it disqualified the petitioner, under federal law, from possessing firearms. Accordingly, on June 29, 2010, Lobrano notified the petitioner that he was revoking the petitioner's armed security guard license. On the same day, Lobrano issued the petitioner an unarmed security guard license.

The petitioner appealed Lobrano's decision to a hearings examiner, who upheld it. The petitioner then appealed the hearings examiner's decision to the superior court. On March 9, 2011, while the parties were awaiting decision on their cross-motions for summary judgment, DOS's attorney, respondent Casko, offered the petitioner the following settlement:

1. You will agree to the dismissal of your appeal of the hearings examiner's decision pending in the Hillsborough South Superior Court. To achieve such, I will file an Assented to Motion for Voluntary Nonsuit with Prejudice of the case.

2. In exchange, the Department of Safety will reissue your armed security

Page 242

guard license upon your signing and returning the agreement to me.

3. You agree to waive any claim for damages due to lost wages against the Department of Safety related to this matter.

4. The Department agrees not to use the conviction for Operating Under the Influence from Lowell District Court Docket #9811CR1032A as a basis to revoke or deny such license in the future.

5. If you agree, please verify same by signing below.

The petitioner agreed to the terms of the offer (the 2011 settlement) and the case was non-suited.

In February or March 2013, the petitioner applied to the Federal Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) for a Curios and Relics License. By apparent agreement with the ATF, local police departments conduct background checks on federal license applicants. Accordingly, the Nashua Police Department conducted a background check on the petitioner in 2013 and, in doing so, learned of the 1998 conviction. Why the City had not discovered the 1998 conviction previously, despite having conducted at least two prior background checks on the petitioner, is not explained in the record.

Nashua Police Lieutenant Michael Moushegian, who reviewed the petitioner's federal application, determined that the 1998 conviction disqualified the petitioner from both the federal license for which he had applied and his state license to carry. Moushegian advised the police chief that he should not only recommend that the ATF deny the petitioner his federal Curio and Relics license, but that he should also revoke his state license to carry. On March 28, 2013, Nashua Police Chief John Seusing revoked the petitioner's license to carry. The petitioner appealed the revocation to the circuit court, and, following that court's affirmance of Chief Seusing's decision, he appealed to this court.

In June 2013, the petitioner applied to renew his armed security guard license. New Hampshire State Police Sergeant Sean Haggerty notified the petitioner on July 8, 2013, that his application had been conditionally denied. The superior court found it implicit in Haggerty's decision that denial was based upon the 1998 conviction. The petitioner filed a motion in superior court to bring forward and enforce the 2011 settlement agreement. Following denial of his motion for preliminary injunctive relief, the petitioner appealed to this court.

On appeal, the petitioner argues that the trial courts erred in: (1) upholding Chief Seusing's revocation of his license to carry; (2) upholding the DOS's decision to rescind the 2011 settlement; (3) failing to find that the City was bound by the 2011 settlement; (4) misinterpreting 18 U.S.C. § § 921(a)(20) et seq.; (5) disregarding the findings and conclusions of the FLRB's decision restoring his right to possess firearms; and (6) failing to " give full faith and credit to the provisions of the public acts, records and judicial proceedings in Massachusetts."

We first consider the applicable standards for reviewing each of the trial court orders the petitioner appeals. RSA 159:6-b, I, provides, in pertinent part, that " [t]he issuing authority may order a license to carry a loaded pistol or revolver issued to any person pursuant to RSA 159:6 to be ... revoked for just cause." RSA 159:6-b, I (2014). We held in Bleiler v. Chief, Dover Police Dep't, 155 N.H. 693, 927 A.2d 1216 (2007), that " 'just cause' refers to a licensee's use of a ...

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