Since the COVID-19 pandemic hit the United States in March 2020, there has been a surge of Massachusetts (MA) residents applying for their Firearm Identification (FID) Card and License to Carry (LTC). The process of applying for these licenses is done through the police department in the town where the applicant resides. The applicant must provide a form of identification, complete a firearms license application, pay the required application fee and successfully complete the Massachusetts Basic Firearms Safety Course. The completed application package is then provided to the local licensing authority and is processed.
A criminal background check of the applicant is also conducted. This is not a MA state background or Criminal Offender Record of Information (CORI) check. This is a federal background check done through the National Criminal Information Center (NCIC), which is maintained by the Federal Bureau of Investigation (FBI) and Commonwealth of Massachusetts Department of State Police State Identification Section. This NCIC background check reflects any and all criminal charges brought against an individual in all states throughout their lifetime.
It is a common misconception that if an individual successfully petitions the Commissioner of Probation or the Courts to seal their criminal record in MA, that it will be completely removed from criminal history and nobody will have access to it. The truth is, the result of a petition to seal in MA is that it is removed from a person’s CORI only, which is typically used by private entities when applying for school or employment. The petition to seal with not remove a case from NCIC. Therefore, when the local police department runs a background check, even if a case is sealed, the authorities will still be able to view the charges, some of which may disqualify an applicant from obtaining his or her FID Card or LTC in the Commonwealth.
Increasing the chances of obtaining a firearms license
There are ways for an applicant may increase the chances of obtaining a firearms license, even he or she has a criminal history in MA.
The first way, and the most difficult, is to successfully petition the Commissioner of Probation or the Court to expunge the criminal record. In order to qualify for an expungement through the Commissioner of Probation, an individual must meet the following requirements:
- (1) under 21 years of age at the time of the offense;
- (2) no additional offenses (other than minor motor vehicle violations) in MA or any other jurisdiction (this means that you can only have one count/charge on one criminal complaint);
- (3) not currently the subject of an active criminal investigation by any criminal justice agency;
- (4) if the offense is a misdemeanor, all custody (including probation) ended at least 3 years ago;
- (5) if the offense is a felony, all custody (including probation) ended at least 7 years ago;
- (6) the offense did not result in death or serious bodily injury nor was the offense committed with the intent to cause death or serious bodily injury;
- (7) the offense was not committed while armed with or carrying a dangerous weapon;
- (8) the offense was not committed against an elderly or disabled person;
- (9) the offense was not a sex offense;
- (10) the offense is not operating under the influence of liquor or drugs;
- (11) the offense is not a firearm violation or a violation for illegal sale of a firearm;
- (12) the offense is not a violation of any restraining or harassment prevention orders;
- (13) the offense is not assault or assault and battery on a household member; and
- (14) the offense is not a felony in violation of General Laws Chapter 265.
If successful in this petition, the criminal “charge” will be removed from their NCIC criminal record, and the local police department will not have access to it.
A person can also petition to Court directly to expunge their record in limited circumstances, which include:
- (1) false use of identification;
- (2) unauthorized use of identity;
- (3) theft of identity;
- (4) the offense(s) are no longer a crime;
- (5) errors by law enforcement;
- (6) errors by civilian or expert witnesses;
- (7) errors by Court employees; or
- (8) a fraud perpetrated upon the Court.
If successful in petitioning the Court to expunge their record, it will also be removed their NCIC criminal record, and the local police department will not have access to it. Expunging one’s criminal record in MA can only be done in very limited circumstances. If the charge(s) has been expunged, the Commissioner of Probation in Massachusetts will automatically inform the Commonwealth of Massachusetts Department of State Police State Identification Section, and following a six (6) month waiting period, it will be removed from the person’s NCIC criminal background.
The second way to increase the chance of obtaining a firearms license is to request that NCIC background check reflect the same as the CORI.
For instance, if your criminal charge(s) have been dismissed, or you were found not guilty after trial, you want your NCIC background check to reflect this. Even though the criminal charge(s) will still be visible to the licensing authority when reviewing the application, it may help if it reflects that the charges have been dismissed or that the person was found not guilty. In order to accomplish this task, a Disposition Update Request form must be filled out and sent to the Commonwealth of Massachusetts Department of State Police State Identification Section.
If your record has been sealed
If your record has been sealed, you also want to inform the Commonwealth of Massachusetts Department of State Police State Identification Section.
In October 2018, the Massachusetts legislature enacted a new statute: Notice of sealed and expunged records to Federal Bureau of Investigation and United States Department of Justice pursuant to M.G.L. c. 276, § 100T.
This statute states, “Upon sealing a record pursuant to section 100A or 100B or upon receipt of an order of expungement pursuant to section 100F, section 100G, section 100H or section 100K the commissioner of the department shall notify the Federal Bureau of Investigation and the United States Department of Justice of said sealing and expungement and shall request said Federal Bureau of Investigation and the United States Department of Justice seal or expunge the record.”
Since this statute has been enacted, the Commissioner of Probation has been automatically informing the Commonwealth of Massachusetts Department of State Police State Identification Section of expungements, but it has not yet implemented this process with sealings.
Regardless, even when the state identification section is informed of the sealing, it is still not removed from a person’s NCIC record.
A Disposition Update Request form should also be filled out for this purpose so the charge(s) reflects that it has been sealed. Although a person’s criminal charges will still be visible on a NCIC background check when sealed, having the record reflect that it has been sealed may increase a person’s chance of obtaining a firearms license.
There is no guarantee that when a person applies for a FID Card or a LTC in Massachusetts that he or she will obtain it. The local police departments have broad discretion when processing these applications and having a criminal record can cause serious roadblocks one’s ability to exercise the 2nd Amendment right. With the high volume of recent applicants, it also seems as if the local police departments have tightened their guidelines and are becoming stricter with new applications.
If you have and been denied
If you seek to apply for your FID Card or LTC, or already have and been denied, contact the Law Office of John L. Calcagni III, Inc. for a free consultation (508) 213-9113.