Tort Claims Act – Immunity for Issuance of Firearms License

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Andrade v. City of Somerville,  92 Mass. App. Ct. 425 (2017)

In a lawsuit brought by a man shot by his neighbor, the Massachusetts Appeals Court recently found the municipality immune for its actions concerning the shooter’s firearms license. Section 10(e) of the Massachusetts Tort Claims Act grants immunity from suit to municipalities for claims based on the issuance, rejection, revocation, or failure to issue or revoke licenses, including licenses to carry firearms. M.G.L. c. 258, §10(e). The Court applied Section 10(e) immunity to the Somerville Police Department’s alleged negligence in issuing a license to carry and failure to retrieve firearms after the Department revoked his license to carry.

On November 11, 2012, after a noise dispute, Santano Dessin shot his neighbor, Carlos license to carry fire armAndrade, with an unlicensed firearm. Nearly three years earlier, in January 2010, the Somerville Police Department revoked Dessin’s license to carry upon discovery of a disqualifying conviction on his juvenile record. Dessin surrendered his firearms to Somerville Police and appealed the revocation to the Superior Court. The Court found that Dessin may possess firearms and Somerville Police returned the firearms pending a determination of the Massachusetts Executive Office of Public Safety and Security (EOPSS). The EOPSS determined Dessin may not possess firearms and his firearms should be surrendered to the Somerville Police. The Somerville Police Department, however, never recovered Dessin’s firearms. Dessin shot Andrade with one of these firearms. Andrade sued the Somerville Police Department for gross negligence for the return and failure to retrieve Dessin’s firearms following the EOPSS decision as required by M.G.L. c. 140, §131(f). The Superior Court denied Somerville’s Motion to Dismiss based on Section 10(e) immunity. Somerville appealed.

On appeal, Somerville argued that Section 10(e) precludes Andrade’s claim because the negligence should be traced to the immunized conduct of licensing under the statute. Attempting to prevent the application of Section 10(e), Andrade argued that his injuries were not caused by the issuance of a license, but instead by Somerville’s subsequent gross negligence in returning and failing to retrieve firearms to a person not fit for possession.

To determine whether Section 10(e) applies, the Appeals Court explained that “[t]he language of §10(e) is plain and unambiguous, and it “cuts a broad swath, exempting from recovery “any claim” in a variety of named circumstances.’” 92 Mass. App. Ct. 425 at 2, quoting Morrissey v. New England Deaconess Assn.—Abundant Life Communities, Inc., 458 Mass. 580, 592-593 (2010). Analyzing the statute broadly, the Court traced the gravamen of Andrade’s complaint to licensing, not negligence, and reasoned that Section 10(e) applied because the failure to recover the unlicensed firearms was “rooted in,” or based on, the licensing process. Id. (citing Smith v. Registrar of Motor Vehicles, 66 Mass. App. Ct. 31 (2006) (applying section 10(e) in a negligence action because the erroneous revocation of a vehicle registration was closely related to licensing). The Court noted that the Police Department had a duty to retrieve the firearms after Dessin’s license was revoked, but, because those duties are central to and “rooted in” licensing immunized under Section 10(e), the Police Department was immune from suit.