A 28-year-old man was seriously injured when a Somerville resident shot him in the neck, paralyzing him from the neck down. His family filed suit for negligence, arguing that the gun the shooter used had been wrongly returned to the shooter by the Somerville police department and the city of Somerville. The police department had previously confiscated the weapon in the course of revoking the shooter’s license to carry. The Massachusetts Court of Appeals concluded that the city’s conduct was “based upon” licensing activity described in section 10(e) of the Massachusetts Torts Claims Act (MTCA) and that therefore the city was exempt from liability in this Massachusetts personal injury case.The victim was shot outside the shooter’s parents’ home in November 2013. The victim was visiting one of the building’s tenants and preparing to walk home when the shooter came out and confronted him and two other men. The victim had a bullet lodged in his neck and was hospitalized for a prolonged period. He’s currently a quadriplegic.
At the resulting criminal trial, the shooter’s lawyer maintained the shooting was in self-defense. He claimed that the victim and the two other men would not let the shooter back into his parents’ home and attacked him when he threatened to call the police. But prosecutors argued that a cellphone video made by the shooter showed he escalated the incident and made attempts to make it appear to be self-defense.
Although the police department was waiting for the decision of the Massachusetts Executive Office of Public Safety and Security (EOPSS) regarding whether it could issue the shooter a new license, the department returned the guns to him following the lower court’s ruling. The EOPSS thereafter notified the department that the shooter was disqualified due to his juvenile record, and at a subsequent hearing, the lower court agreed.
In early 2010, the Somerville police department notified the shooter that his license was revoked due to a disqualifying adjudication of delinquency on his juvenile record. The department confiscated three firearms belonging to the shooter. The shooter appealed from the police department’s decision, and the lower court determined that the shooter was allowed to own guns.
The plaintiffs alleged gross negligence, negligent supervision and training in violation of Massachusetts law, and loss of consortium. The city moved to dismiss the counts against it based on section 10(e). A Superior Court judge denied the motion, and the city appealed.
Section 10(e), in pertinent part, exempts public employers from liability in tort with respect to any claim based upon the revocation of a license.
The appeals court first explained that police departments oversee the licensing process for the possession of firearms in Massachusetts. The local police department is responsible for issuing gun licenses to residents, and the police chief is required to deny an application for a license to carry when the applicant has been adjudicated a juvenile delinquent. If a person’s license to possess or carry a firearm is revoked, the person is responsible for surrendering guns in that person’s possession to the licensing authority.
The plaintiffs contended that section 10(e) did not apply because their injuries were not caused by a licensing decision of the police department. Instead, they argued that the police department was grossly negligent when it returned the firearm to the shooter and then failed to retrieve it.
The court explained that while the plaintiffs’ injuries were not caused directly by the revocation of a gun license, they were “based upon” the department’s decision to revoke the shooter’s license. This decision triggered the department’s responsibilities with regard to the shooter’s weapons. A local police department’s duty to dispose of weapons when a person’s license is revoked are central to the functions that are immunized from liability pursuant to Section 10(e). Since the plaintiffs’ complaint was based on the police department’s licensing abilities, the appeals court held, the motion to dismiss under Section 10(e) should have been allowed.
Thus, the appeals court reversed the order denying the city’s motion to dismiss.
If you or a loved one was harmed by another party’s negligence, you may need the assistance of a personal injury lawyer to seek compensation. At the Neumann Law Group, our Massachusetts attorneys provide trustworthy legal representation to victims all over the state. Contact us toll-free at 800-525-NEUMANN or use our online form to set up a free consultation.
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Massachusetts Appeals Courts Holds Police Not Immunized for Canine Attack, Neumann Law Group, July 31, 2017.