Firearms Records Bureau v. Simkin

by Steve MacDonald

holstered-gun1

Update: Fixed Link to case

In early August a firearms/right to carry case was settled in the Supreme Judicial Court in Massachusetts that has some significant ramifications but that has been grossly under-reported, if it has been reported at all.

Nashua, New Hampshire resident and Federally Licensed Firearms dealer Jay E. Simkin (Attorney Penny Dean), successfully overturned a lower court decision that had sustained the revocation of his unrestricted non-resident Massachusetts firearms carry permit.

Long story short, the state revoked his temporary nonresident Class A unrestricted license to carry firearms in Massachusetts on the grounds that he was no longer a “suitable person” because he had, in their view, exceeded his stated purpose for claiming to need the license and because…employees of the medical office where he sought treatment, and where the complaint leading to revocation originated, were “alarmed” and “concerned for their safety” at the sight of his weapons.

Let’s review the facts of the case.

From FindLaw

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.

Read the entire thing.  It is not long but the background is helpful.  And, besides, I’m going to jump right to the conclusion. Emphasis mine.

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.” G.L. c. 140, § 131 (a ). 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.15 See G.L. c. 140, § 131 (a )

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.

“Simkin is not responsible for alarm caused to others by his mere carrying of a concealed weapon pursuant to a license permitting him to do exactly that.”

Let it sink in.

It is almost as brilliant–maybe more so because it came from the Massachusetts SJC–than the NH State Supreme Court announcing that an unloaded firearm is not loaded.

Congratulations to both Penny Dean and Jay Simkin.

Leave a Comment

  • allen

    this would be Jay Simkin, formerly from the JPFO and author of the book “Lethal Laws”?

    • jaysimkin

      The same.

  • Timothy Horrigan

    Even though it would have left him unarmed for a couple of hours, Mr. Simkin might have considered locking up his weapons BEFORE driving to the doctors appointment.

    He did at least three things which are very different from what most patients do, and which were potentially disruptive: he showed up under an assumed name, he paid with a wad of $100 bills— AND he brought an arsenal into the medical office. The staff arguably may not have had the right to be alarmed or concerned, thanks to the fact that Mr. Simkin had a concealed carry permit (albeit not a permit in the name of Horace Jones from Maryland.) Nevertheless, it isn’t surprising at all that they were alarmed and concerned anyway.

    • granitegrok

      Glad to see that Progressives (like yourself) see paying a lawful bill (as opposed to a drug deal) with cash, REGARDLESS of the amount, is to be considered “disruptive”. Where did that notion of your’s come from, Timothy?

      Also, how is using an alias (which many people often do, even outside of “the criminal element”) be “disruptive” – how does that cause alarm or cause people a problem? If he paid in cash, there was no need to look up insurance records – is THAT what you mean by being disruptive, that he was financially able to pay for himself instead of being dependent on someone else to pay his bill?

      Trust me, from what Steve described, I wouldn’t have called it an arsenal – he forgot some long guns and perhaps a couple of explosive items. If he had, I might agree with you. Do you know if his vehicle was armored and had a long round cylinder sticking out of it, Timothy? That would have sealed THIS deal…

    • allen

      an “arsenal”? one gun is an “arsenal”?

      “you keep using that word. I do not think it means what you think it means”

      • Steve

        Two guns two knives-still not an arsenal….unless you are anti-self defense Demokrat who has an ingrained distrust of people with guns unless….they get a paycheck from the goverment; then the more the police the better. Arm the Department of Education. Guns guns guns…Government has to have all the guns.

        • allen

          I see Jay is packing a bit more these days than back when I met him. I bought an ishapore enfield off him back in the late 90’s..he offered to sell me a G3 with a registered auto sear for about $500 not including the transfer tax, but I just didn’t have the money. I still kick myself over that one..that would be worth about $20,000 now.

          perhaps we should send timmy a few of Jay’s books? “gun control:gateway to tyranny” or “lethal laws”..not that he’d read them..progressives aren’t all that interested in history. if they were, they’d know the path they’re following always leads to slavery, genocide, and ruin.

          • peck2

            Just for the record, Allen, my Ishapore Enfield is the most accurate long range .308 I own. And it is such a handsome rifle.

          • allen

            definitely a good gun. some have ejection problems but they’re easily solved. I’m thinking of getting mine scout-er-ized )barrel at 18″, LER scope) and putting a folding stock on it as a “trunk gun”. put it in an old laptop bag with a few dozen stripper clips of .308 and forget about it, until that time you really need a rifle…

          • peck2

            Ouch! It will no longer be an “Enfield”. It will just be an Enfield action sporter. It’s yours, so do with it what you like. I use a “short” AR platform for the purpose you describe. Please don’t “forget” about it. (I know you won’t).

          • allen

            this is why I actually bought 2 from mr Simkin, I keep one original and one gets modified. the folding stock is easy enough to switch back and forth..use a rem 870 folder and a longer stock bolt, then fill the extra space in the stock hole with a wooden plug.

          • peck2

            Thanks for that. Good move. I feel so much better now. Occasionally I just cringe when I hear what some folks do with a firearm that I admire so much in the original. It’s just me now. Next week I may think different on it.

          • jaysimkin

            To allen. I beg leave to point out that I have never had in inventory any G3 (the selective-fire version of the Heckler & Koch 91). This is a top-notch battle rifle, but I’ve not had one in inventory, to the best of my recollection.

            Further, in “the late ’90s”, I doubt that anyone would have sold any “G3 with a registered auto sear” for $500. In the early ’90s, a semi-automatic HK91 surely would have cost far more than $500.

          • allen

            perhaps it was a FAL then? I’m not sure if you remember me.I was with Bruce Chesley when we showed up at your house to pick up the Ishapores. I’ve lost track of bruce, I’m not sure if you hear from him any more. any e-mails I send never get replies, perhaps his e-mail and phone # has changed.

      • ctlovesnathanhale

        I don’t give a fuck if he backed a dump truck full of guns up and unloaded….

    • Steve

      I guess you’ll have to take down your Massachusetts SJC alter in the back of your bedroom closet now then, eh?

    • burtfisher

      Using your logic, Mr. Simkin also could have considered renting a limo and had the staff at the doctor’s office brought to his home for the exam. There are lots of things Mr. Simkin “might have” done, but the burden is not on him to avoid igniting paranoid fantasies in others, during the course of his lawful activities. Paying with a wad of $100 bills is what terrorists do. Does that make him a terrorist? Using an assumed name is what terrorists do, too, I suppose. Yet looking up and down this very page, I see lots of names that I’m pretty sure are “assumed.” Allen, Steve, Granitegrok, and more. They are freely exercising their First Amendment rights; it seems that Mr. Simkin was exercising his Second Amendment right. And then he probably paid $30,000 or more in legal fees and other fees to successfully avoid being ruined financially (or imprisoned) by the State, this man who clearly was not committing a crime.

    • jaysimkin

      Mr. Horrigan. As an Federally-licensed Firearms dealer, I’m responsible for the security of my inventory, which includes Class III items. Accordingly, I’m armed at all times/places where it is lawful so to be.

      The visit to the medical practice, was my second visit. The doctor, who attended me at the first visit, was the most senior doctor at the practice. He had no problem with my being armed. The proof: he directed me to make a follow-up appointment. Had he not wanted me to return, he could have sent a letter to me, care of the friend, whose address I used. This doctor did not do that.

      Next, you make the same mistake as did the ex-licensor (he ceased to be a licensor on or about 19 October 2012, when he appears to have left the employ of the Commonwealth of Massachusetts). You assume that those at the meidcal practice knew I had used a pseudonym. They did not know that, because they had no reason to inquire. I paid for the services to be rendered, in advance and in full and in cash. The medical practice had no need to be concerned about being paid.

      You also make another mistake, that the ex-licensor made. You assume that I was asked to show some ID, when I went to the practice. Actually, I was never asked for any form of ID, neither on the first visit nor the second visit. I had a referral to the top doctor at the practice. He trusted that anyone, who referred a patient to him, would not refer a criminal, etc. That trust was sound.

      You make a third mistake, that the ex-licensor made. When I arrived at the medical practice, my weapons were entirely concealed. Only those, with X-ray vision, could have known I was armed. Plainly, the doctor, who first attended me, never said anything to his colleagues about my being armed. Had he said something, then there would have been no concern, as it would have been clear that the top doctor at the practice is “comfortable” with this patient. You should therefore, infer that when I arrived for the first visit, all weapons were completely concealed, until I was behind the closed door of a medical exam room. That was the case during the second visit.

      In short, you need to read the SJC’s decision carefully. That reading will show you that the ex-licensor got key facts wrong, because he did not investigate. He never spoke with me. He never spoke with anyone at the medical practice, who actually had contact with me on the day in question. The nurse, who called the police, never saw me and could not describe me to the police dispatcher. In short, this matter arose because the ex-licensor totally neglected his duty to get the facts of the matter.

      Finally, understand that Massachusetts law discourages leaving firearms in vehicles. Locking-up a weapon in a glove box and then locking the car (or truck) does not suffice. The firearm must go in a locked case, or be locked with a “gun lock”. This is not my opinion. It is the opinion of the Massachusetts Supreme Judicial Court (Chardin v. Police Commissioner of Boston, 465 Mass. 314). In any case, leaving weapons in unattended vehicles is unsound. As an FFL-holder, I am legally required to report the loss or theft of any firearm in my care. I take that duty seriously, as I take seriously all of the duties, that I take upon myself, as an FFL-holder.

      You seem unaware that doctors’ offices are not sacrosanct: some of those killed/murdered in doctors’ offices were the victims of disgruntled former employees, relatives of current employees, or victims of robbers. These things are rare, but they do happen.

      If those at the practice wish to be unarmed, that’s their right. I have an occupational need to be armed. Were it lawful for me to be armed, while on aircraft, I’d be armed, while on aircraft. If it were lawful for me to be armed, while aboard a commercial aircraft, take it as given, that I’d be well-trained in the proper ways to use firearms in that setting.

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  • Rich Grise

    One fact that keeps getting ignored in all these reports (which infuriates me) is that the right of the people to keep and bear arms shall not be infringed. Period, end of sentence. ANY infringement on the right of the people to keep and bear arms is unconstitutional, therefore null and void.

    Keep reminding them about the Constitution of the United States, people!

    • JeremiahtpoG

      And what Obama can’t shove through the Congress, he tries to sneak through with executive orders

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