Disclosing a Criminal Record on a Massachusetts Firearms License Application

The application for a Massachusetts license to carry or a firearm identification card requires the applicant to state, under the pains and penalties of perjury, that the applicant is not disqualified on any of the grounds the statute lists. G.L. c. 140, § 121F(g). Many local application packets ask a second and broader question: whether any criminal charge has ever been brought against the applicant in court, regardless of outcome.

Those two questions are not the same, and the difference is where applicants make mistakes. The statutory question is disqualification. The packet question is history. An applicant who answers the packet question by applying the statutory test, and leaves out a dismissed case because it was not a conviction, has answered the wrong question under oath.

This page explains what disqualifies an applicant, what does not, what a sealed record does and does not do at the licensing desk, how the separate suitability determination works, and what relief exists for a person who is disqualified.

What the Statute Requires

Section 121F(g) governs the form of the application. The Department of Criminal Justice Information Services supplies a standard form, and the applicant affirms under the pains and penalties of perjury that no listed disqualification applies.

The statute does not require a narrative history of every court appearance. The broader question about any charge regardless of outcome comes from the licensing authority’s own packet. Both are answered under oath, and both are checked against the record the licensing authority obtains.

The Penalty for a False Answer

Knowingly filing an application that contains false information is a separate crime. The punishment is a fine of not less than $500 nor more than $1,000, or imprisonment for not less than 6 months nor more than 2 years in the house of correction, or both. G.L. c. 140, § 121F(f).

That exposure is why guessing is the wrong approach. An applicant who is unsure whether an old case counts should learn what the record shows before signing rather than after.

What Disqualifies an Applicant

Section 121F defines the prohibited person. The criminal grounds turn on a conviction, or an adjudication as a youthful offender or delinquent child, for:

• a felony;
• a misdemeanor punishable by imprisonment for more than 2 years;
• a violent crime as defined in G.L. c. 140, § 121;
• a violation of any law regarding the use, possession, ownership, or transfer of firearms or ammunition for which a term of imprisonment may be imposed;
• a violation of a Massachusetts controlled substances law under G.L. c. 94C, or a substantially similar law of another jurisdiction; or
• a misdemeanor crime of domestic violence as defined in 18 U.S.C. § 921(a)(33).

For a firearm identification card under G.L. c. 140, § 129B, three of those grounds, the misdemeanor punishable by more than 2 years, the firearms violation, and the controlled substances violation, disqualify the applicant for 5 years measured from the conviction or adjudication, or from release from confinement, probation, or parole supervision, whichever occurs later. The remaining grounds have no such limit.

Section 121F also contains non-criminal grounds. They include certain commitments for mental illness or for alcohol or substance use disorder, guardianship for incapacity, an outstanding arrest warrant, the absence of United States citizenship or lawful permanent residency, and a dishonorable discharge from the armed forces.

Convictions From Other Jurisdictions

The disqualifiers are not limited to Massachusetts cases. Section 121F applies to a conviction or adjudication in a court of the Commonwealth or in any other state or federal jurisdiction.

An applicant who moved to Massachusetts with an old case from another state should assume the licensing authority will find it. The controlled substances ground is written to include a violation of a substantially similar law of another state or federal jurisdiction, so a foreign statute with a different name may still qualify.

A Juvenile Case

An adjudication of delinquency is not a criminal conviction under Massachusetts law. It disqualifies anyway. Section 121F applies to a person who has been convicted or adjudicated as a youthful offender or delinquent child, and the felony ground has no time limit.

The Supreme Judicial Court addressed this in Chardin v. Police Commissioner of Boston, 465 Mass. 314 (2013), holding that the licensing statute permanently disqualifies a person adjudicated a delinquent child for conduct that would be a felony, and that the disqualification does not infringe a right protected by the Second Amendment. The court explained that although the juvenile system did not treat the applicant there as a criminal, he had nonetheless committed an unlawful act that was a felony.

The court also observed that the statute is regulatory rather than punitive, so the Eighth Amendment does not apply to it. An applicant with a juvenile record should establish what the adjudication was for before filing, not after a denial.

Operating Under the Influence

Operating under the influence is the disqualifier applicants are most often surprised by. A first offense under G.L. c. 90, § 24(1)(a)(1) is punishable by a fine of not less than $500 nor more than $5,000, or by imprisonment for not more than two and one half years, or both.

Two and one half years is more than 2 years. A conviction therefore falls within the § 121F ground for a misdemeanor punishable by imprisonment for more than 2 years, and it disqualifies the applicant. For a license to carry there is no five year limit on that ground. For a firearm identification card under § 129B the five year period applies.

A Continuance Without a Finding

A continuance without a finding is not a statutory conviction under G.L. c. 140, § 121F for purposes of a license to carry or a firearm identification card. Because a completed continuance without a finding is a non-conviction under Massachusetts law, it does not trigger an automatic statutory disqualification.

That is not the end of the question. A continuance without a finding appears on the applicant’s criminal offender record information, and the licensing authority sees it. The conduct underlying the charge may be weighed in the separate suitability determination described below, and that weighing matters most where the allegation involved violence, a domestic relationship, drugs, or a firearm.

The distinction is worth stating plainly. A continuance without a finding on an operating under the influence charge does not disqualify the applicant by statute. A conviction on the same charge does.

A Charge That Did Not End in a Conviction

A dismissal, a finding of not guilty, and a nolle prosequi are not convictions, and none of them is a criminal disqualifier under § 121F.

That does not answer the packet question. A question that asks about any charge brought in court regardless of outcome asks about the charge, not the result. A truthful answer identifies the case and states the disposition.

The disposition is what the applicant wants the licensing authority to see. A case that ended in a dismissal reads very differently from a case whose outcome is left blank.

The Separate Suitability Determination

An applicant who clears every disqualifier can still be denied. The licensing authority must deny an application on a determination of unsuitability, which rests on reliable, articulable, and credible information that the applicant has exhibited or engaged in behavior suggesting that issuing the license may create a risk to public safety or a risk of danger to self or others. G.L. c. 140, § 121F. A denial on that ground must be given to the applicant in writing, setting out the specific reasons.

The Supreme Judicial Court has described the standard as conferring considerable latitude, or broad discretion, on the licensing authority. Chief of Police of Worcester v. Holden, 470 Mass. 845 (2015). The court explained that the standard allows a licensing authority to keep firearms from people who are not categorically disqualified but who pose a palpable risk that they would not use a firearm responsibly in public.

Two points from Holden matter to anyone with an old case. First, uncharged and untried criminal conduct amounting to an assault and battery may render a person unsuitable, a rule the court traced to DeLuca v. Chief of Police of Newton, 415 Mass. 155 (1993). A case that was dismissed, and even conduct that was never charged, can support a denial.

Second, the court declined to hold that the passage of five years without further incident automatically prevents a licensing authority from relying on an earlier incident, and declined to set any period after which an event may no longer be considered.

For a firearm identification card under § 129B, the licensing authority does not have the power to deny for unsuitability on its own. It must petition the District Court, which holds a hearing within 90 days and decides suitability by a preponderance of the evidence. G.L. c. 140, § 121F(l).

A Sealed Record

Sealing changes what the public sees. It does not close the file to the police.

Under G.L. c. 276, § 100A, a person with a sealed record may answer “no record” in three settings: an application for employment, for housing, or for an occupational or professional license. A firearms license is not among them.

The same section requires the commissioner of probation to report that no record exists in response to inquiries by authorized persons other than any law enforcement agency, any court, or any appointing authority. The licensing authority on a firearms application is the local chief of police.

Massachusetts courts have addressed what a licensing authority may consider when a record has been sealed. In Chief of Police of Shelburne v. Moyer, 16 Mass. App. Ct. 543 (1983), the Appeals Court held that departmental records that are not public records, maintained by police and other law enforcement agencies, are not sealed, and that a chief of police may properly use them in determining an applicant’s fitness. The court added that sealing does not prevent the chief from testifying to information from any other source relied on in that determination.

One further limit belongs here. Convictions for violations of G.L. c. 140, §§ 121 to 131H, the firearms statutes themselves, are outside the sealing provision of G.L. c. 276, § 100A.

Restoring Eligibility After a Disqualifying Conviction

A disqualifying conviction is not always permanent. The firearm licensing review board, established within the Department of Criminal Justice Information Services under G.L. c. 140, § 130B, has seven members, including the colonel of state police or a designee, an appointee of the Massachusetts Chiefs of Police Association, the Attorney General or a designee, an attorney with litigation experience in firearm licensing cases, and a retired member of the judiciary.

An applicant convicted of, or adjudicated a delinquent child or youthful offender for, an offense punishable by two and one half years imprisonment or less may petition the board after 5 years have passed from the conviction or adjudication, or from release from confinement, commitment, probation, or parole supervision, whichever occurs last. An assault or battery on a family or household member as defined in G.L. c. 209A, § 1 is outside the provision.

The petitioner bears the burden of proving suitability by clear and convincing evidence. Hearings are conducted informally but otherwise according to the rules of evidence, witnesses are sworn, and the board may compel attendance.

If the board finds, by a two thirds vote, that the conviction is the petitioner’s sole disqualifier, that it arose out of a single incident, that 5 years have passed, and that the petitioner is suitable by clear and convincing evidence, the board shall determine that the petitioner’s right or ability to possess a firearm is fully restored in the Commonwealth as to that conviction, and that the conviction shall not prohibit an application to a licensing authority.

Because a first offense of operating under the influence is punishable by not more than two and one half years, it falls within the offenses the board may consider.

A Pardon

A pardon is a separate route. As the Supreme Judicial Court noted in Chardin, upon approval of a petition for pardon the governor directs all proper officers to seal the records relating to the offense, and those sealed records shall not disqualify a person in an application for employment or other benefit, including licenses, nor be admissible in evidence or used in any proceeding before a board, commission, or agency.

Review of a Denial

A denial is reviewable, and the burden is on the applicant. The applicant must produce substantial evidence of being a proper person to hold a license, and a refusal stands unless it was arbitrary, capricious, or an abuse of discretion. Chief of Police of Shelburne v. Moyer, 16 Mass. App. Ct. 543 (1983).

The hearing is not a trial. The hearsay rule is not applied to evidence offered by a chief of police in support of the reasonableness of a denial, and the test is relevance. Moyer; Holden, 470 Mass. 845 (2015).

Because the record made at that hearing is the record on which the decision rests, the documents an applicant brings matter more than the explanation an applicant gives.

What to Do Before Signing

Order the record first. Memory of a case from years ago is frequently wrong about the charge, the disposition, and the date, and the licensing authority works from a document.

Read the packet question as written. A question about charges regardless of outcome is answered by disclosing the charge and its disposition, not by privately deciding that a dismissed case does not count.

Gather the disposition paperwork. A certified docket showing a dismissal, a finding of not guilty, or the dismissal that closed a continuance without a finding is worth more at the licensing desk than an explanation.

Identify any disqualifier before filing. Where the record shows a conviction that falls within § 121F, the question is no longer what to write on the form but whether the firearm licensing review board or a pardon is available.

Where a case was sealed, or where an old disposition may be a disqualifier, that is the point to get advice rather than to sign and hope. A denial can be reviewed. A false statement on the application is a separate criminal case.

Attorney Joe Serpa has practiced Massachusetts criminal defense since 1995 and handles the record questions that sit behind a firearms application, including sealing petitions and the disposition problems that surface at renewal. Serpa Law Office can be reached at 617.936.0201.