ADAM WEBSTER PERDOMO v. WILLIAM G. BROOKS & Another.

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,
as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties
and, therefore, may not fully address the facts of the case or the panel's
decisional rationale. Moreover, such decisions are not circulated to the entire
court and, therefore, represent only the views of the panel that decided the case.
A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25,
2008, may be cited for its persuasive value but, because of the limitations noted
above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260
n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

23-P-556

ADAM WEBSTER PERDOMO

vs.

WILLIAM G. BROOKS1 & another.2

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The plaintiff, Adam Webster Perdomo, filed an action in the

District Court under G. L. c. 140, § 131 (f), challenging a

decision by the defendant chief of police of the town of Norwood

(chief) not to reinstate Perdomo's license to carry a firearm

(LTC) despite the lapse of a G. L. c. 209A restraining order

against Perdomo.3 After an evidentiary hearing, a judge affirmed

1 As he is chief of police of the town of Norwood.

2 Dedham Division of the District Court Department.

3Section 131 has been amended several times during the
period at issue. When the LTC was issued in 2019 and when the
chief initially suspended it in December 2020, the governing
version was § 131 as then most recently amended by St. 2018,
c. 123, §§ 11-12. We refer to this as the 2018 version. When
Perdomo unsuccessfully requested reinstatement and then sought
the chief's decision that Perdomo remained unsuitable for

licensure. Perdomo then sought certiorari review in the

Superior Court, where judgment entered affirming the District

Court decision. Perdomo now appeals, arguing that the chief's

decision improperly relied on certain information that predated

the c. 209A order. Seeing no error in the District Court

judge's decision, and further concluding that Perdomo waived his

constitutional claims by failing to raise them in the District

Court, we affirm the Superior Court judgment.4

Background. We recite the essential facts as found by the

District Court judge, supplemented with undisputed facts drawn

from the record. In 2019, Perdomo applied to the chief for an

LTC. The police department's chief clerk reviewed the

application and provided the chief with records showing, among

other things, that Perdomo had a domestic incident with his

and obtained judicial review in the District Court, the
governing version was § 131 as amended by St. 2014, c. 284,
§§ 46, 47, 49, 52, and 54, with a delayed effective date of
January 1, 2021. See St. 2014, c. 284, § 112. Therefore,
despite its enactment in 2014, we refer to this as the 2021
version. The version presently in effect is § 131 as amended
through St. 2022, c. 175, §§ 4-17A. We refer to this as the
2022 version. We note, where applicable, those instances in
which the 2022 version differs from the prior versions on which
we rely. Perdomo does not argue that any particular version of
the statute should apply to our analysis of any particular
issue.

We acknowledge the amicus letter submitted by the Attorney
4

General.

2
former wife in Boston in 2011 and three incidents with his

current wife in Norwood -- two in 2017 and one earlier in 2019.5

The chief then issued Perdomo an LTC -- a decision implying that

the chief had not found Perdomo so "unsuitable" as to warrant

the denial of Perdomo's application.6

On December 23, 2020, the chief sent Perdomo a letter

suspending his LTC on the ground that his wife had just obtained

an ex parte c. 209A order against him in Probate and Family

Court. As the chief explained at the evidentiary hearing, when

a court issues a restraining order against a licensee, the

police department that issued the license receives automatic

electronic notice, and then the electronic licensing system

5 The Boston incident led to Perdomo being charged with
assault and battery; the charge was resolved with an admission
to sufficient facts and a continuance without a finding for six
months, after which the case was dismissed. The Norwood
incidents, as described in police reports, involved verbal
arguments in 2017 and 2019 that did not involve physical
contact, and a 2017 argument in which Perdomo and his wife each
claimed to have been physically assaulted by the other.

6 The 2018 version of § 131 (d), see supra note 3, provided
that "[t]he licensing authority may deny the application [for an
LTC] . . . or suspend or revoke [it] . . . if, in a reasonable
exercise of discretion, the licensing authority determines that
the . . . licensee is unsuitable . . . to continue to hold [an
LTC]" (emphasis added). G. L. c. 140, § 131 (d), as amended
through St. 2018, c. 123, §§ 11, 12. Under § 131 as now in
effect, the licensing authority "shall" deny an application for,
or suspend or revoke, an LTC "if the applicant or licensee is
unsuitable to be issued or to continue to hold" such a license
(emphasis added). G. L. c. 140, § 131 (d), as amended by
St. 2022, c. 175, §§ 4-17A.

3
automatically generates a letter from the chief suspending the

license. This is because State law prohibits a person subject

to such a restraining order from holding an LTC. See G. L.

c. 140, § 131 (d) (vi) (all relevant versions, see note 3,

supra). See also 18 U.S.C. § 922(g)(8)(A) (prohibiting

possession of firearm by person subject to restraining order

issued after notice and opportunity to participate in hearing).

The chief testified that, after such an immediate

suspension, "we look further into the circumstances behind the

restraining order to see if there are other facts that we should

know about." "[W]e always, as a matter of course, seek the

affidavit filed by the plaintiff in support of the order." In

this instance, the affidavit filed by Perdomo's wife stated as

follows:7

"Adam has a habit of hurting me every time he gets upset.
He grabs me by my arm and pushes me around. I have many
pictures. Evidence to show the harm. I have had many
conversations with Adam to stop this behavior and even seek
medical advice. But it's going nowhere. Adam had a
history of domestic violence in the past with his ex-wife.
She filed a restraining order.

"Last aggressive behavior was last night when Adam pushed
me so hard and I fell onto the ground while my nine-year-
old was in the house. I need help to stop this. I can't
do it on my own!"

7 Our quotation alters some aspects of the form of her
statement, but not its substance. We have done the same in our
quotations, infra, of her subsequent motion to terminate the
order and her later letter to the chief.

4
The day after the c. 209A order issued, however, Perdomo's

wife filed a motion in Probate and Family Court to terminate the

order.8 In her motion, she stated in pertinent part as follows:

"After talking with my family I decided the best solution
and fair for me is to file for divorce. This is the best
for me and my kids! Please know this order is against my
religion and beliefs and I want to exit this relationship
peacefully. Please know this is the first time I filed for
this order and had NO knowledge about it!"

She did not appear at the scheduled January 5, 2021 hearing to

extend the c. 209A order, and the case was dismissed.

The next day, January 6, 2021, Perdomo wrote to the chief

to request that his LTC be reinstated. After apparently

receiving no immediate response, Perdomo filed suit against the

chief in District Court on March 10, 2021.

In his complaint, Perdomo acknowledged that a person

subject to a current c. 209A order is statutorily ineligible for

an LTC, but he asserted that if such a person "is no longer the

current subject of [a c. 209A] order," the person is "no longer

8 Perdomo has failed to include in the record appendix the
complete record of District Court proceedings filed in the
Superior Court, which included his wife's motion and other
exhibits from the evidentiary hearing. This violates the
"fundamental and long-standing rule of appellate civil practice"
that the appellant has an obligation "to include in the appendix
those parts of the [record that] are essential for review of the
issues raised on appeal." Shawmut Community Bank, N.A. v.
Zagami, 30 Mass. App. Ct. 371, 372-373 (1991), S.C., 411 Mass.
807 (1992). We have nevertheless obtained and considered the
complete record of the District Court proceedings. See Mass.
R. A. P. 18 (a) (1) (D), as appearing in 491 Mass. 1603 (2023).

5
disqualified." Perdomo further acknowledged that the chief

could still "deny or suspend an LTC on the basis that a prior

[c. 209A] order renders [a person] 'unsuitable,'" but he

asserted that the chief had "failed to re-assess [Perdomo's]

suitability after the [c. 209A order was] terminated." The

complaint sought reversal of the suspension decision and an

order that the chief issue an LTC to Perdomo.

The day after Perdomo filed his complaint, the police

department's chief clerk sent Perdomo a second, "supplemental"

letter of suspension. The letter explained that Perdomo's LTC

"remains suspended . . . for reasons that you are presently

unsuitable for reinstatement based upon a totality of

circumstances related to a history of allegations of domestic

assault and/or threats."9

At the District Court evidentiary hearing, the chief

testified that although Perdomo's wife had asked that the

c. 209A order be terminated, she had not recanted any of the

statements she made in her earlier affidavit. That affidavit

9 The labeling of the second letter as "supplemental" was in
one sense a misnomer. As we explain further, infra, that letter
did not supplement the reason given in the first letter for the
original suspension, which was that the pending c. 209A order
disqualified Perdomo from licensure. Rather, the second letter
stated the reason for continuing the suspension (i.e., refusing
reinstatement) even after Perdomo was no longer disqualified:
that Perdomo had also been determined unsuitable for licensure.

6
described Perdomo's "habit of hurting [her] every time he gets

upset" and his recent physical assault on her; it also referred

to Perdomo's history of domestic violence with her and Perdomo's

former wife. The chief acknowledged that at least some of that

history had been known to him at the time he originally issued

the LTC in 2019, but not the facts asserted for the first time

in the affidavit. In this case, the chief determined that,

based on the affidavit underlying the c. 209A order, there was

additional reason, beyond the temporary pendency of the

restraining order itself, to suspend Perdomo's LTC.10 The chief

explained that "we do occasionally write out a supplemental

letter [of suspension] when additional facts come to light."

Based on "the totality of the circumstances," the chief

"believe[d] that [Perdomo] was no longer suitable to be

licensed."

Perdomo himself also testified at the evidentiary hearing.

He stated that he had complied with the initial c. 209A order,

and that the affidavit was written and signed by his wife. His

10The chief acknowledged that he had also received a letter
from Perdomo's wife, dated January 16, 2021, asking the chief,
"on behalf of my husband and myself, to reinstate his LTC." It
further stated, "I have absolutely no fear of him hurting me or
our kids." The chief testified, however, that he gave "great
weight" to the earlier affidavit, because it was written
contemporaneously with the events it described and was signed
under the pains and penalties of perjury.

7
counsel did not ask, and he did not say, whether the statements

in the affidavit were true.

After the hearing, the District Court judge issued a

decision "credit[ing] the testimony of [the chief] regarding the

information contained in the December 23, 2020 affidavit filed

by [Perdomo's wife] and[] the public safety concerns it raised."

The judge found "that [the chief] has articulated a reasonable

ground for his decision not to reinstate [Perdomo's] LTC." She

therefore affirmed the chief's decision "denying Mr. Perdomo

reinstatement of his LTC." On certiorari review, the Superior

Court affirmed the District Court's judgment. This appeal

followed.

Discussion. 1. Governing law. Under both the 2018 and

2021 versions of § 131 (f), an LTC "shall be revoked or

suspended by the licensing authority" -- here, the

chief -- "upon the occurrence of any event that would have

disqualified the holder from being issued such license" and "may

be revoked or suspended . . . if it appears that the holder is

no longer a suitable person to possess such license."11 G. L.

c. 140, § 131 (f), as amended through St. 2018, c. 123. A

11The 2022 version of § 131 (f) makes revocation or
suspension mandatory upon a determination that the holder is no
longer suitable. G. L. c. 140, § 131 (f), as amended through
St. 2022, c. 175.

8
holder is "disqualified," i.e., is a "prohibited person," if the

holder, among other things, "is currently subject to . . . a

permanent or temporary protection order issued pursuant to . . .

chapter 209A." Id., § 131 (d) (vi) (B). And,

"[a] determination of unsuitability shall be based on:
(i) reliable and credible information that the applicant or
licensee has exhibited or engaged in behavior that suggests
that, if issued a license, the applicant or licensee may
create a risk to public safety; or (ii) existing factors
that suggest that, if issued a license, the applicant or
licensee may create a risk to public safety."12

Id., § 131 (d). "Upon revoking or suspending a license based on

a determination of unsuitability, the licensing authority shall

notify the holder of a license in writing setting forth the

specific reasons for the determination." Id. That an event is

not (or is no longer) disqualifying does not bar the licensing

authority from considering that event and the surrounding

circumstances on the issue of unsuitability. See Chief of

Police of Worcester v. Holden, 470 Mass. 845, 856 (2015); Chief

of Police of Wakefield v. DeSisto, 99 Mass. App. Ct. 782, 785

(2021).

12 The 2022 version of § 131 (d) provides that the
determination shall be based on "reliable, articulable and
credible information that the . . . licensee has exhibited or
engaged in behavior that suggests that . . . [the] licensee may
create a risk to public safety or a risk of danger to self or
others." G. L. c. 140, § 131 (d), as amended through St. 2022,
c. 175.

9
An aggrieved holder may seek judicial review in District

Court, and if the judge "after a hearing . . . finds that there

was no reasonable ground for . . . suspending . . . the license

and that the petitioner is not prohibited by law from possessing

a license, the [judge] may order a license to be . . .

reinstated." G. L. c. 140, § 131 (f), as amended through St.

2018, c. 123. The judge "may not second guess the licensing

authority's decision to take one reasonable action over another"

(quotation omitted). Chief of Police of Wakefield, 99 Mass.

App. Ct. at 786.

On appeal, we apply the same standard of certiorari review

as the Superior Court; we "examine the record of the District

Court . . . to correct substantial errors of law apparent on the

record adversely affecting material rights" (quotation omitted).

Chief of Police of Wakefield, 99 Mass. App. Ct. at 784-785. We

give no special weight to the Superior Court decision. See Doe

v. Superintendent of Sch. of Stoughton, 437 Mass. 1, 5 (2002).

2. Perdomo's claims of error. a. Claim and issue

preclusion. Perdomo first argues that, because the chief issued

him a license in 2019, the doctrines of claim preclusion and

issue preclusion barred the chief from determining in 2021 that

Perdomo was at that time unsuitable. We may assume for purposes

of argument the doubtful proposition that the chief's 2019

licensing decision was a "final order of an administrative

10
agency in an adjudicatory proceeding" that could have preclusive

effect against the parties in some other proceeding. Tuper v.

North Adams Ambulance Serv., Inc., 428 Mass. 132, 135 (1998),

quoting Stowe v. Bologna, 415 Mass. 20, 22 (1993). But even if

the licensing decision was made in an adjudicatory proceeding,

the chief was not a party to that proceeding; he was the

adjudicator. And, "[i]n the absence of statutory limitations,

administrative agencies generally retain inherent authority to

reconsider their decisions." Moe v. Sex Offender Registry Bd.,

444 Mass. 1009, 1009 (2005).

Furthermore, even if the chief were viewed as subject to

preclusive effect based on his own earlier decision, neither

claim preclusion nor issue preclusion would benefit Perdomo

here. Claim preclusion "bars further litigation of all matters

that were or should have been adjudicated in the [earlier]

action." Heacock v. Heacock, 402 Mass. 21, 23 (1988). But

whether the December 2020 physical assault on Perdomo's wife

described in her affidavit rendered Perdomo unsuitable was not

and could not have been litigated or considered in the course of

the chief's 2019 licensure decision, because the claimed assault

had not yet occurred. Similarly, issue preclusion applies only

where, among other things, the issue "actually was litigated and

determined . . . and . . . the determination was essential to

the decision in the prior action." Id. at 25. Here, whether

11
the December 2020 assault rendered Perdomo unsuitable was not

considered in, let alone determined by and essential to, the

2019 licensure decision.

More generally, we think it plain that earlier events, such

as Perdomo's history of domestic incidents with his former and

current wives, can take on added significance in light of

subsequent events, such as the 2020 physical assault. The chief

could reasonably view that assault as an indication that

Perdomo's earlier behavior, including physical assaults in 2011

and 2017, was not abating with time but instead was continuing.

The 2018 and 2021 versions of § 131 (f) provide that "[a]

license may be revoked or suspended by the licensing authority

if it appears that the holder is no longer a suitable person to

possess such license." G. L. c. 140, § 131 (f), as amended

through St. 2018, c. 123. The 2022 version makes such action

mandatory. See supra note 11. This language plainly authorizes

a police chief to reconsider a prior suitability determination,

and it does not restrict that reconsideration to only those

events occurring or becoming known after the LTC was issued.

See Moe, 444 Mass. at 1009. The unsuitability determination

must take into account whether an applicant or licensee poses "a

risk to public safety," G. L. c. 140, § 131 (d), as amended

through St. 2018, c. 123, or, as of 2022, "a risk of danger to

self or others." Id., as amended through St. 2022, c. 175. See

12
supra note 12. To read into the statute a limitation on what

information a chief may review in determining unsuitability

would frustrate the statute's public safety and protective

purposes.

In sum, under the 2018 and 2021 versions in effect when the

chief made his decision and the District Court upheld it, the

chief had "(i) reliable and credible information that the . . .

licensee has exhibited or engaged in behavior that suggests that

. . . [the] licensee may create a risk to public safety," i.e.,

that Perdomo was "unsuitable." G. L. c. 140, § 131 (d), as

amended through St. 2018, c. 123. If we were to apply the 2022

version, the chief also had such information regarding, at a

minimum, Perdomo's risk of danger to others. Indeed, Perdomo

acknowledged at oral argument that, putting aside his procedural

and constitutional arguments, the information in his wife's

affidavit was sufficient to support the determination of

unsuitability. The District Court judge therefore properly

determined that the chief had a "reasonable ground" for not

reinstating the LTC. Id., § 131 (f).

b. Chief's second letter. Perdomo nevertheless insists

that the chief had no authority to issue his second letter,

which stated that Perdomo's LTC remained suspended because his

record of domestic incidents made him "presently unsuitable for

reinstatement." Perdomo relies on the requirement that "[u]pon

13
revoking or suspending a license based on a determination of

unsuitability, the licensing authority shall notify the holder

of a license in writing setting forth the specific reasons for

the determination." G. L. c. 140, § 131 (d), as amended through

St. 2018, c. 123. See id., § 131 (f) ("Any revocation or

suspension of a license shall be in writing and shall state the

reasons therefor"). Perdomo argues that this language makes no

provision for, and thus implicitly prohibits, the chief's

issuance of a second letter stating additional reasons for a

license suspension. Thus, Perdomo claims, the District Court

judge, in reviewing the chief's decision, was limited to

considering the chief's original letter.

What Perdomo overlooks is that the chief made two

decisions, at separate times, and he issued a separate letter in

support of each. He issued one letter suspending the LTC based

on the pending c. 209A order, a mandatory disqualification for

an LTC. After that order lapsed, he issued a second letter,

declining Perdomo's request to reinstate the LTC, based on the

chief's determination that Perdomo was unsuitable. Only the

second decision was based on unsuitability, and it is only the

second decision that Perdomo challenges here.

This court rejected an argument similar to Perdomo's in

Chief of Police of Shelburne v. Moyer, 16 Mass. App. Ct. 543

(1983). In that case, a police chief denied an LTC application,

14
relying in his initial letter on a mandatory disqualifying

factor: the applicant's conviction for possessing a controlled

substance. Id. at 544. The conviction, however, had been

sealed. Id. A week after his initial letter, the chief sent a

second letter stating, as additional grounds for the denial,

that he had determined based on "factors surrounding [the

applicant's] arrest and conviction" that the applicant was "not

a proper person to carry firearms" under § 131. Id. Section

131 at that time authorized issuance of an LTC if the applicant

was not otherwise disqualified and appeared to be a "suitable

person." Id. at 545.

On judicial review, a District Court judge ruled that the

conviction, having been sealed, could not be considered a

disqualification, and so the judge ordered the chief to issue

the LTC. Chief of Police of Shelburne, 16 Mass. App. Ct. at

545. On appeal, we held that such an order was premature,

because the judge had not yet considered the chief's

determination that the applicant was unsuitable. Id. at 545-

546. "In the absence of a finding that no reasonable ground

existed for [the chief's unsuitability determination], the judge

was in error in ordering the issuance of the" LTC. Id.

The principle underlying Chief of Police of Shelburne

applies here. In both cases, even after the originally stated

mandatory disqualifying factor was determined not to support any

15
(or any further) denial of licensure, the District Court judge

was also required to review the chief's decision that the person

was not suitable for licensure. See Chief of Police of

Shelburne, 16 Mass. App. Ct. at 545-546.

We reject Perdomo's further argument that, because the

chief's second letter was not issued until after Perdomo sought

judicial review, it was an improper effort to "shore up the[]

case," was "innately arbitrary and capricious," was

"retaliat[ory]," "inherently illogical," and should not have

been considered. Once the c. 209A order lapsed, Perdomo had

applied for reinstatement of his LTC, but it appears that as of

two months later the chief had not yet responded, and so Perdomo

filed his District Court complaint, asserting that the chief had

"failed to re-assess [Perdomo's] suitability after the [c. 209A

order] was terminated." Although it might have been desirable

for the chief to respond more promptly, § 131 by its terms did

not require him to respond within any particular time, and he

responded the day after Perdomo filed suit.13 Perdomo offers no

evidence to support his allegations of improper motivation and

no explanation of how the timing of the letter conflicted with

§ 131's language or purpose or prejudiced him.

13In contrast, G. L. c. 140, § 131 (e) (all relevant
versions, see note 3, supra), requires, with one exception, that
an LTC application be approved or disapproved within forty days.

16
3. Constitutional claims. Perdomo also argues that § 131,

on its face and as applied, violates the Second Amendment to the

United States Constitution as interpreted in United States v.

Rahimi, 144 S. Ct. 1889 (2024), and New York State Rifle &

Pistol Ass'n v. Bruen, 142 S. Ct. 2111 (2022). He did not raise

such arguments in the District Court, or for that matter the

Superior Court, and therefore the arguments are waived. See

Albert v. Municipal Court of Boston, 388 Mass. 491, 493-494

(1983). The single passing reference to the Second Amendment in

Perdomo's twenty-one page District Court memorandum of law was

insufficient. See Chelsea Hous. Auth. v. McLaughlin, 482 Mass.

579, 584 (2019), quoting Nelson v. Adams USA, Inc., 529 U.S.

460, 469 (2000) ("[waiver] principle . . . requires that the

lower court be fairly put on notice as to the substance of the

issue").

Moreover, Perdomo failed to notify the Attorney General of

any constitutional claims while the case was in the District

Court, so as to give the Attorney General an opportunity not

only to defend the constitutionality of the statute but also to

make any factual record necessary to such a defense. See Mass.

17
R. Civ. P. 24 (d), 365 Mass. 769 (1974).14 For this additional

reason, we decline to reach Perdomo's constitutional claims.

Conclusion. The District Court correctly declined to

disturb the chief's decision. The judgment of the Superior

Court, upholding the District Court's judgment, is therefore

affirmed.

Judgment affirmed.

By the Court (Sacks,
Ditkoff & Toone, JJ.15),

Clerk

Entered: September 23, 2024.

14Cf. G. L. c. 231A, § 8 (requiring notice to Attorney
General of certain constitutional claims raised in declaratory
judgment actions); Mass. R. A. P. 10 (a) (4), as appearing in
481 Mass. 1618 (2019) (requiring notice to Attorney General of
certain constitutional claims raised in civil appeals).
15 The panelists are listed in order of seniority.

18