Interesting New Gun Case from Massachusetts’ Highest Court

The Volokh Conspiracy ^ | 8 August, 2013 | Eugene Volokh

[marktwain]

From Firearms Records Bureau v. Simkin (Mass. Aug. 8, 2013):

Simkin is a New Hampshire resident and a federally licensed firearms dealer who is engaged in the “buying and selling [of] firearms in the region, from private parties, at gun shows, and at auctions.” Since 2002, he has held a temporary nonresident Class A unrestricted license to carry firearms in Massachusetts. In February, 2009, Simkin applied to the bureau for a renewal of his license, stating as his purpose for requesting the renewal that he traveled in and through Massachusetts for business purposes, carrying firearms, ammunition, and cash, and carried concealed firearms for personal protection. The bureau renewed his license.

On November 6, 2009, Simkin traveled to Stoneham for a medical appointment. At the medical office, and in order to protect his privacy, Simkin used a pseudonym (“Horace Jones”) and registered under a Maryland address. He also declined to provide a phone number, and, at the conclusion of the medical examination, paid the $1,500 bill in cash. Prior to disrobing in the examination room, Simkin informed the medical assistant that he was armed and proceeded to secure his weapons (two firearms, ammunition, and four knives) in a locked briefcase for the duration of the examination. Employees of the medical office were “alarmed” and “concerned for their safety” based on Simkin’s conduct, and one of the employees contacted Stoneham police much later that day to report their concerns....

By letter dated November 13, 2009, [Firearms Records Bureau] director Jason A. Guida informed Simkin that his license was thereby revoked because, on the basis of the information provided to him by McKinnon and the manager of the medical office regarding the incident on November 6, Guida determined that Simkin was no longer a “suitable person” to possess a firearm in Massachusetts. Specifically, Guida made this determination on the basis that (1) Simkin’s visit to the medical office while “heavily armed” fell outside the “business activity” of buying and selling firearms that Simkin indicated on his license application as the reason he sought the license; (2) Simkin caused “fear and alarm” at the medical office; and (3) Simkin used a false name in order to conceal his identity.

The Massachusetts Supreme Judicial Court unanimously reversed the denial of Simkin’s license (some paragraph breaks added):

Although the bureau is correct that a license holder’s conduct need not constitute a violation of the law or statutorily disqualify the license holder in order to form the basis for a revocation on unsuitability grounds, the bureau’s discretion to make a suitability determination is not without limits. A revocation will be overturned as arbitrary or capricious where “no reasonable ground” exists to support it.

Even when viewed in their totality, Simkin’s arguably unusual but otherwise innocuous actions did not provide a “reasonable ground” to deem him no longer a “suitable person” to carry firearms. This is particularly the case where the Executive Office of Public Safety and Security or its designee has not promulgated any regulations governing suitability, and therefore has provided applicants and license holders with little guidance on what it means to be a “suitable person.” In the absence of any such regulations, individual suitability determinations become more susceptible to attack on the ground that they are arbitrary and capricious.

Simkin held an unrestricted Class A license to carry firearms. Although Simkin indicated on his license application that he sought the license for reasons of personal protection related to his business activities, the license itself carried no restrictions; it entitled Simkin to carry firearms “for all lawful purposes.” The argument that Simkin’s carrying of firearms to his medical appointment demonstrated unsuitability because the appointment was not related to his business activities is therefore meritless.

The contention that Simkin’s being “heavily armed” contributed to his unsuitability is similarly meritless, where that characterization originated with the manager of the medical office (of unknown expertise with firearms), and where Simkin’s license permitted him to carry more than one firearm. [FN: Simkin vehemently objects to the bureau's contention that he was "heavily armed." He insists that he was "adequately armed," taking into account the risk that one or more of his firearms might malfunction. As his counsel articulated at oral argument, "'The rule' is: One gun, no gun; two guns, one gun; three guns, two guns."]

Next, we suspect that the average Massachusetts resident may become “alarmed” on learning that someone other than a law enforcement officer is carrying concealed weapons in his or her presence. However, Simkin is not responsible for alarm caused to others by his mere carrying of concealed weapons pursuant to a license permitting him to do exactly that.

Although the bureau claims that Simkin “went out of his way to show and inform certain staff members that he was ... armed,” the record indicates otherwise. Simkin concealed his weapons until he was in the examination room and was about to disrobe, at which time he notified the medical assistant that he was carrying concealed weapons and was going to secure them, presumably so that she would not be alarmed. Further, he had disclosed the fact that he was armed immediately prior to disrobing during a previous visit to the same medical office, albeit to a different practitioner, and had received no objection to his behavior either during or after the visit.

Finally, there is the matter of Simkin’s concealment of his true identity at the medical office. The record shows that Simkin used a pseudonym and provided indirect contact information for the purpose of protecting his medical privacy. There is no suggestion that Simkin was attempting to commit a crime or perpetrate a fraud. Once he learned that the authorities (specifically, Detective McKinnon) wished to speak to him regarding his license, he was compliant and forthright. This is therefore not a case where an applicant or license holder has attempted to mislead the licensing authority.

[marktwain]

Interesting, from Massachusetts. While Massachusetts is a "may issue" state, 3.7% of the population has concealed carry permits, a very strong showing.

[Gaffer]

On reading this, I certainly hope gun rights in MA aren’t hinged on this case. His actions that day in the medical office were weird to say the least. Couple that with a fake name, providing no phone number, and carrying 2 weapons and a few Knives doesn’t help matters much.

[JRandomFreeper]

Our rights aren't predicated on what someone thinks is 'weird'.

He did nothing unlawful.

/johnny

[Gaffer]

You’re correct...but there is more there than meets the eye..

[marktwain]

“On reading this, I certainly hope gun rights in MA aren’t hinged on this case. His actions that day in the medical office were weird to say the least. Couple that with a fake name, providing no phone number, and carrying 2 weapons and a few Knives doesn’t help matters much.”

Seems to me that makes the case even stronger. The Supreme Court of Massachusetts has ruled that your permit is not subject to the whims of parties you have no control over.

[mad_as_he$$]

Privacy? I see nothing wrong or weird with what he did. Many people see the Dr under false names. As long as there is no intent to defraud there is no law broken.

If weird was the standard we would all be law breakers. The only people that aren’t weird are the ones you don’t know.

[SWAMPSNIPER]

Just going to Massachusetts is credible evidence of insanity.

[Gaffer]

I understand that. However, as I have said, there is more here than meets the eye. Behavior aside, he did have a legal right and I can accept that.

[Gaffer]

Nope, I never have; I don’t know anyone who has done what you say those “many” do. Regardless, I’m not arguing his rights - which were upheld.

[IamConservative]

As an aside, I’m curious why one would use a fake name for a $1,500 office visit. STD?

While it does not appear he did anything unlawful, carrying at the Dr’s office is not using the best judgment IMO.

[mad_as_he$$]

I have several Doctors in the immediate family. They tell me they have many patients that use false names and pay cash. Mostly it is a privacy issue for the patient. Many are hiding things from their family or employer. Not my place to judge motive, just an interesting fact of life.

[JRandomFreeper]

At the medical office, and in order to protect his privacy, Simkin used a pseudonym

In the article.

/johnny

[NonValueAdded]

The record shows that Simkin used a pseudonym and provided indirect contact information for the purpose of protecting his medical privacy. There is no suggestion that Simkin was attempting to commit a crime or perpetrate a fraud.

That is what I find important about the decision, especially in light of Obamacare. We may be required to carry insurance but are we required to USE insurance?

[I want the USA back]

What they want to do is harass legal, law-abiding non-violent citizens and declare them ‘criminals’, all the while deliberately and intentionally, with full awareness, leaving guns in the hands of violent criminals.

[Paisan]

However, Simkin is not responsible for alarm caused to others...

Wow.

Usually, in Liberal Mass., such alarm or, offense, is grounds enough for thorough emasculation.

But, I’m sure this case is just an outlier, and such a ruling won’t happen again...

[JRandomFreeper]

carrying at the Dr’s office is not using the best judgment

Why?

/johnny

[Gaffer]

Okay...I believe you. I’m 63 and never seen nor heard of such except to see in a movie or two from decades ago.

Regardless, I expect that Obamacare will make that illegal. I expect they’ll make cash illegal. Along with a myriad of other things too.

[William Tell]

What's weird about wanting to conceal your identity in order to protect your medical privacy?

What's weird about carrying several firearms? Don't many cops do this?

What's weird about carrying a lockable case and using it when necessary to disrobe for a medical exam?

I hope gun rights DO HINGE on this case. It basically states that the government cannot be arbitrary or capricious in their enforcement of the carry laws.

In Kalifornia, the authorities are nothing but arbitrary and capricious.

[GladesGuru]

“Just going to Massachusetts is credible evidence of insanity.”

All too true.

However, there is money to be made dealing with the inmates of the locked ward known as Taxachussetts.

[ChildOfThe60s]

I have been wondering if a lot more of us may find it necessary to do the same thing (fake name) in the near future.

Because my doctor is also a conservative and personal friend, he has no problem with leaving out of my records anything I ask him to leave out that is discussed during our consultations. I suspect a lot of doctors won’t do that.

[Gaffer]

Okay...here we go again. I have not said nor implied he did not have the right to do it. There are some aspects that are weird, however. To me, suspicious even to the point of some sort of provocative action.

Exactly how many people do you know that have used an assumed name and pay cash ($1500) while simultaneously carrying two weapons, several knives and a locked case into a Doctor’s office and then standing there (I’m guessing butt naked asking/telling I need to lock up all these weapons?) I’ll take a guess on exactly none.

It is one thing to stand up for unalienable rights; it is another to try and justify odd behavior as perfectly sane and common in order to stand on the side of those unalienable rights.

[RC one]

I wonder if he can sue the Doctor’s office for a HIPPA violation? I think he probably could as they made his visit to the doctor’s office a matter of public knowledge. Healthcare privacy is a HUGE deal and medical practitioners get sued over it all the time. People lose jobs for it all the time too.

[ChildOfThe60s]

there is more here than meets the eye

I agree. I'd like to know a lot more of the details.

Nonetheless, I assume the court was privy to said details and obviously saw no legal issues with them. The ruling seems to cover the relevant legal points and sees no reason to rehash any (odd?) details that are not legally relevant.

[William Tell]

Gaffer said: "Exactly how many people do you know ..."

Why don't you describe for us how he SHOULD have behaved while accomplishing his goals? Or do you question his goals?

[driftdiver]

You won’t be required to use insurance but you will have difficulty finding a doctor who takes cash. They will exist but will be for the wealthy.

[driftdiver]

where should have left his weapons? in his car to be stolen?

[Gargantua]

"...there is more here than meets the eye..."

That cryptic non-sequitir implies a mouthful. What is seeable within this narrative that is so inobvious that many of us "missed it," but you did not? What is the "more" here that we simpletons just haven't figured out, praytell?

This should be enlightening.

;-\

[driftdiver]

no, medical providers are allowed to report to law enforcement and other govt agencies. its specifically addressed in HIPAA.

[Gaffer]

I question nothing but the uncommonness of his actions seen in the context of everyday life.

Were it me, and I felt the need to go pay a doctor a bunch of cash under an assumed name for some undescribed treatment, I’d have locked my guns up in my car’s trunk before going to the office.

Okay, now I’ve told you what I’d have done, you still haven’t told me about all those people who’d do or have done the same that makes you feel his actions were perfectly normal.

[Gaffer]

I give up. It is one thing to be a fervent supporter of 2A rights. I have more guns than most to the point I’ve lost count how many. I have had CCW for almost 20 years and I do carry. Nowhere in this story, do I see a completely normal action with respect to this man’s actions. If you guys here do, then hooray for you. It is all normal...anything goes when you happen to have a right to carry a gun, then.

I don’t buy it. His actions weren’t normal, and I don’t have to have proof of some other ulterior motive. It is my suspicion there is more to the story here or there is more than a motive of unfettered-carry. The way it reads, I can’t imagine anything more that would have upset the people concerned than this outside of brandishing the weapons.

I don’t have to give you an explanation beyond that. If you don’t like it then trot yourself down to your doctor’s office and do the same thing and see what happens. Being armed doesn’t man you have to give up your common sense.

[RC one]

I guess I should start reporting every drug seeking pos and overdosed junkie that comes into my ER then. This guy was breaking no laws nor was he behaving in a way to inspire any kind of justifiable fear and these Massachusetts commie ****ing faggots made his visit to the clinic public knowledge for no good god ***ned reason. They should be fired and sued.

[driftdiver]

Oh I agree. HIPAA is really only useful as a means for the govt to control medical providers.

Now that they’ve made vendors subject to HIPAA their long arms are touching a lot of surprised companies.

[marktwain]

I have carried when I went to the Dr’s office for the last 19 years (as long as we have had concealed carry permits in Arizona).

I also routinely carried a knife, sometimes two. I never had a problem, and the doctors or staff never had a problem.

If you start to allow other people’s opinions to “chill” the exercise of your rights, you are on a slippery slope indeed.

I have a couple of funny anecdotes that relate my carrying to a medical facility for routine tests; I will save them for another time. Suffice it to say that what I thought might initially be a mild problem requiring education turned out to be a humorous example validating the “reasonableness” of carry.

[Gaffer]

So you’ve carried two weapons and three knives or so and brought a locking case, too? I know you can relate to some extent, but put yourself in Mass, and think about it.

[marktwain]

I thought the locking case was a well thought out provision to protect himself from accusations of putting the staff in danger. Locking his defensive gear in a briefcase along with(presumably) cash, credit cards and ID seems like a good precaution, especially considering what happened.

Clearly, Massachusetts is not Arizona, but Massachusetts has more concealed carry permits per capital than Arizona does! (at least according to the sources I looked up in the last couple of hours)

I have sometimes carried more than one gun. To illustrate to my CCW classes methods of concealed carry, I have at times, carried 15 or so. Carrying two is not an uncommon practice.

[JRandomFreeper]

the context of everyday life.

YOUR everyday life.

/johnny

[Gaffer]

So what you’re telling me is that you carry a throw down.

[Gargantua]

"Being armed doesn’t mean you have to give up your common sense..."

No, it doesn't. But, neither does "being armed" mean people should more closely scrutinize or question your actions for ulterior motives just because you have a gun (or multiple guns) on your person.

Why was there even an "assistant" still in the room as he was disrobing? In my doctor's office, the nurse-thingy gives you a "johnny" and then leaves the room to allow you to disrobe in privacy.

If the attendant had done that here, there never would have been a story, period.

So what ulterior motive can be ascribed to the evil gun-carrier which would have caused the attendant to stay in the disrobing area so she could sneak a peek at his lap-booger?

LMAO!!! Oh, and if you don't want people to reply to your inanities, just don't post 'em!

8^)

[William Tell]

Gaffer said: "I’d have locked my guns up in my car’s trunk before going to the office."

So you don't think it weird to be handling your guns with your trunk lid open outside a doctor's office?

[Gaffer]

Okay...it is normal for you then, I guess. I carry one weapon well suited for the task and I have elected to not carry a throwdown.

[Gaffer]

Have you even ever put a gun in your trunk in public? I have. It is not so difficult a task.

[JRandomFreeper]

I carry backup. I also carry knives. Even the local constabulary knows that if I have pants on, I have at least one knife on me. I've had them borrow one to cut a dog loose from some rope it had gotten tangled in.

Not weird at all in my part of the world.

/johnny

[William Tell]

Gaffer said: "Have you even ever put a gun in your trunk in public?"

I've done the equivalent through necessity. But I always hated it. If anyone should suspect what I was doing and reported it, I could perhaps be charged with violating the necessity of keeping the weapon concealed. I would much preferred to have had the laws in the jurisdictions through which I travelled uniformly recognize my right to carry concealed or openly as I see fit.

In a Constitutional U.S., the doctor would feel obligated to supply secure lockers for his patients who carry.

[Gargantua]

"...So what you’re telling me is that you carry a throw down."

Doesn't everyone? They absolutely should, especially in non-"Stand-Your-Ground" states, where your freshly-ventilated assailant having been armed can make your shooting of him a much more understandable, less suspicious action...

My neighbor prefers to shoot people with two first names (i.e., Bob Randolph, Mark James, etc). He says there is just no need not to have a regular name, like Eddie Jones or Paul Slocum. See what I mean?

LOL!!

8^)

[Gaffer]

It is pointless to discuss this with you. Your assumption that all around should be entirely comfortable with your right to exercise your 2A rights is ludicrous, especially in Massachusetts. Human nature is human nature. Given the location, one would logically conclude people surrounding would not be so conciliatory. As far as I'm concerned, the only 'inanity' here rests with you and the contortions you've to which you've taken your argument so that you don't appear anti-2A. Oh, and if you don't like comments, feel free to just pass them on by. I won't mind at all.

[marktwain]

“Okay...it is normal for you then, I guess. I carry one weapon well suited for the task and I have elected to not carry a throwdown.”

I find it interesting that you refer to a second gun as a “throwdown”. I think most commenting hear would use the term BUG (back up gun). It shows quite a different mindset.

Do you think that the primary purpose of police (or anyone) carrying a second gun is for use as a “throwdown” gun?

I do not say this out of criticism: I simply am trying to understand your mindset. If that is how you think of a second gun, it explains more of your argument.

[Gargantua]

So you have two first names? Is that what you're telling me?

8^D

[Gaffer]

Well, different strokes. I’ve done such more times than I can remember to keep from taking a weapon into a location that may be restricted (e.g., posted by the owner - NO FIREARMS). The only thing I do in that case is to try and not let anyone nearby see what I’m putting in the trunk, and a small towel I keep in the vehicle serves that purpose.

[Gaffer]

This from the scholar that figured out how to use the word “non-sequitur” and put it in a sentence re: what he thinks are illogical leaps and then demonstrates it in response to a comment not even directed at him.

[Kickass Conservative]

Back in the 50’s, my Brother used to carry his .22 Rifle in a soft Gun Case to School. He was in the School Gun Club.

Nobody was ever alarmed. This was on Long Island, New York.

Back in the early 70’s, when I was 18 Years Old, I used to have my Rifles in the back window Gun Rack in my Ford 4x4 Pickup. Nobody was ever alarmed. This was in Southern CA.

We now have an out of control Federal Government, our Constitutional Rights under the First, Second and Fourth Amendments are being shredded by Tyrants and a majority of our Population isn’t alarmed, in fact many welcome the New Order with open arms.