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Articles Posted in gun offenses

As a non-resident of Massachusetts who may be traveling within the State, are you allowed to carry a gun and what do you need to know if stopped by the police while carrying a gun? Do not assume that a license from another state allow you to carry a firearm while traveling through other states. If you are stopped by the police while carrying a firearm licensed out of state, what information should you need to avoid arrest?

The Massachusetts Supreme Court recently held that the police do not need to first determine if you have a valid license before arresting you, if they believe your firearm is not legally licensed in the State. To understand what you should do if stopped by the police as an out of state resident with a firearm in Massachusetts, it is important to first understand the local firearms laws.

First, when transporting a firearm, keep it unloaded and locked in a case in your trunk or rear storage compartment. Do not keep the gun in a glove box, a center console, under your seat, on your person, etc., and take care to ensure that the gun is not loaded. Keep the ammunition locked away as well.

The Massachusetts Supreme Judicial Court heard oral argument in the case of Commonwealth v. Brain Harris that raised the issue whether Massachusetts law denies nonresidents the right to bear arms by exposing them to criminal penalties for not having an FID card. This case was argued in November with a decision likely in the next month or two.

In the Harris case, the defendant, Harris, was charged with possession of a firearm without an FID and possession of a Large Capacity Firearm out of the Lowell District Court.  The defendant got into an argument with his then-girlfriend who called the police.  When the defendant’s girlfriend called the police, she told the police he had guns; the police came to the apartment with guns drawn.  Harris showed the police a license to carry in New Hampshire and lead the police to the guns.

Where did the defendant Reside?

In the case of Huertas v. United States, the defendant is requesting that the United States Supreme Court grant certiorari in his case, to address the issue of when an individual can be seized for the purposes of the Fourth Amendment.  In order to trigger a defendant’s Fourth Amendment rights, the person must be seized under the law.  For example, a person is not automatically seized any time there is interaction with the police.  A court will look at the circumstances of the encounter and attempt to determine if a reasonable person would not feel free to leave.  Cases involving flight from the police raise interesting Fourth Amendment issues.

The Branden case was a gun charge.  In gun crimes, often the police will receive anonymous tips that are frequently uncorroborated that a person has a gun.  In the Branden case, the defendant initially spoke to the officer.  The defendant submitted to the officer’s show of authority for between 30 and 60 seconds.  When the officer got out of his car, the defendant ran and discarded a gun while running from the officer.

By temporarily complying with the officer’s show of authority, the defendant argued that he was seized under the Fourth Amendment. The defendant argued that since the defendant was seized, the seizure was unlawful because it was not supported by reasonable suspicion.

The state’s highest court decided this week to uphold Shrewsbury police Chief Gemme’s decision to revoke a Raymond Holden’s license based on an assault and battery charge that was ultimately dismissed. The case is important for those looking to apply for an LTC or those who fear suspension or revocation, because it showed just how broad a licensing authority’s discretion is.

The licensing authority in Massachusetts may deny an application or suspend or revoke for any of the following reasons under G. L. c. 140, § 131 (d) and (f). :

1. A felony conviction as a juvenile or adult- ineligibility waived after 5 years 2. Being the subject of a current 209A restraining order 3. Conviction for possession or sale of drugs 4. Confinement to a hospital for mental illness-may be waived with statement from treating physician 5. Conviction of a misdemeanor punishable by imprisonment for more than two years-waived after 5 years 6. Conviction of a violent crime-never waived 7. Conviction of any weapons charge for which imprisonment may be imposed-waived after 5 years 8. Past or current treatment for drug or alcohol addiction-waived after 5 years with affidavit from physician 9. Being the subject of an outstanding state or federal arrest warrant 10. Not a “suitable person” in the eyes of the licensing authority

Police officers often obtain evidence during the execution of an arrest warrant, but a Massachusetts criminal defense attorney can ask the court to exclude this evidence if it was obtained unlawfully or in violation of the defendant’s rights. That’s because the manner and circumstances in which an officer could forcefully enter a home to make the arrest are heavily regulated by the courts. The state’s high court in Commonwealth v. Gentile limited police power even further when it held that police officers did not have authority to forcefully enter a home to execute an arrest warrant if they had no concrete evidence that the arrestee was home at the time.

In the matter of Commonwealth v. Gentile, police officers forcefully entered the residence of Gentile in an effort to execute two outstanding arrest warrants against him. When the officers first approached the residence, Gentile was nowhere in sight, and a lady with her daughter answered the door. When asked whether defendant was at home, the lady replied that he was not.

The officer at the door alleged that the lady looked at the bedroom at the end of the house and appeared nervous when she was asked about Gentile. Based on these observations, the officer forcefully entered the residence and search the bedroom at the back of the house for Gentile. Gentile was found in the bedroom, near an antique musket that was left in plain view. The officers arrested Gentile and subsequently discovered several other firearms in the bedroom.

Massachusetts requires all firearms to be secured in a locked container when not in possession of the lawful owner. As a Boston criminal defense attorney, many are often confused on what is required to satisfy this statute. The recent case of Commonwealth v. Reyes decided by the Massachusetts Supreme Judicial Court discussed what is truly meant by this statute.

The defendant in this case owned a firearm lawfully with a class A license. On his way to work as a correctional officer the defendant had the gun on him and left it in his glove compartment going into work. His car was later searched and the gun was found with no lock or safety device attached to it. The defendant was charged and convicted of the storage status violation.

The defendant asked for the charge to be dropped because the law is unconstitutionally vague and also offended his second amendment right to bear arms. The court ruled this did not offend defendant’s second amendment rights as he still had a right to carry the gun. The discussion then turns to whether the “secured in a locked container” provided enough information for the law to be followed by gun owners.

Often times, those charged with illegal possession of a firearm in Boston will be arrested when the police officer never saw them in possession of the firearm at all. When a suspect is arrested without actually being in possession of the firearm the prosecution will try to prove constructive possession.

As a Boston criminal defense attorney, it is important to fight this charge of constructive possession as often times it can be an abuse of police discretion when an officer arrests everybody on the scene where a gun was found. The Massachusetts Supreme Judicial Court recently answered what the prosecution needs to show to obtain a conviction for constructive possession in Commonwealth v. Romero.

In Commonwealth v. Romero, the defendant was parked in front of a friend’s house with three other men. The defendant was in the driver’s seat and he had seen one of the passengers with a gun earlier in the day. A police officer pulled behind the defendant’s car and observed the vehicle for several moments. It appeared that all four passengers were passing back an object back and forth. When the officer approached the vehicle he observed a gun in one of the passenger’s laps. The defendant was arrested and charged with possession of a firearm without a license. Since the defendant was not in physical possession of the weapon, the prosecution relied on constructive possession and the defendant was convicted.

As a Brockton criminal defense lawyer, a question that arises in many cases is did the officer conduct a legal stop under the Fourth Amendment. The Massachusetts Supreme Judicial Court just discussed this issue in the recent case of Commonwealth v. McKoy.

In Commonwealth v. McKoy, two Brockton police officers drove by the defendant and his brother walking down the street on a freezing snowy night. Moments later, the police officers received a call about a shooting that occurred about 100 yards from where they had seen the two men walking. The officers reversed direction and saw the two men continuing to walk with their hands in their pants. The officers got out of the vehicle and drew their weapons and ordered both suspects to the ground. One suspect got away but the defendant was handcuffed and searched. Officers found ammunition and a gun that the defendant had dropped on the ground. The defendant was arrested and found guilty of unlawful possession of firearm and ammunition.

The defendant contends that the search was unlawful and that the evidence of the gun and the ammunition should be suppressed. The SJC upheld the conviction and ruled that the search was legal and the evidence did not have to be suppressed. For the police officers to engage in a stop, they must have reasonable suspicion that the suspect has committed a crime. The court stated that reasonable suspicion is a twofold test; first was the original stop reasonable and second was the search justified under the circumstances. Reasonable suspicion is defined as would a reasonable officer given the facts of the situation find the actions appropriate? Furthermore an officer can take reasonable steps if they feel they are in danger.

As a Boston criminal defense lawyer, defending drug cases, often the initial police seizure will be based on the defendant being in a high crime area. The Massachusetts Supreme Judicial Court has stated numerous times that being present in a high crime area or flight from the police is insufficient to justify a stop under the 4th Amendment or Article 14 of the Massachusetts Declaration of Rights.

The Fourth Circuit Court of Appeals recently addressed this issue in the case of

United States v. Bumpers. A police officer was conducting a routine patrol. While he was driving by a local convenience store in a high-crime area, the officer noticed two men standing by dumpsters located. The officer observed the two men for five or ten seconds and then pulled into the parking lot. At that time the men began walking away from the dumpsters. The officer exited his car and told the two men that they were not free to go. One of the men, defendant Irvin Bumpers, obeyed the officer’s orders.

A police sergeant for the Manchester-by-the-Sea Police Department was arrested recently for domestic violence and weapon charges, after an altercation with a female.

Massachusetts criminal defense attorneys understand that when officers in Beverly responded to a domestic violence and shots fired call, they reportedly discovered a cache of weapons, including 11 rifles, 16 handguns, eight shotguns, four samurai swords and a large stash of ammunition.

As a police officer, he would have almost certainly had a state license to carry a firearm. However, the gun charges (aside from the discharge of a firearm within 500 feet of a dwelling and assault with a dangerous weapon) are specifically related to his storage of those weapons.

Massachusetts General Law, Part 1, Title XX, Chapter 140, Section 131L, it’s against the law to keep or store any firearm, shotgun, rifle or machine gun in any place unless it’s secured in a locked container or equipped with some form of tamper-resistant mechanical lock or safety device. It has to be locked in such a way that the weapon will be inoperable except by the owner or other authorized user.

The law doesn’t apply if you are physically carrying it, in which case it’s not deemed “stored” or “kept.” It also doesn’t apply to any weapon with a matchlock, flintlock, percussion cap or some similar type of ignition system made in or prior to 1899 or any replica of such a gun.

Penalties for violating this statute vary, depending on the type of weapon. For guns that aren’t considered large-capacity weapons, you face a year in jail and a $500 fine. For large capacity weapon, the maximum fine is increased to $10,000 and you face imprisonment of up to 10 years.

This officer is facing three such charges.

According to The Salem News, officers responding to a domestic disturbance call found the sergeant for a nearby department on the sidewalk, shouting to a woman who was inside a home. Officers indicated that upon investigation, they learned that the pair had been fighting. At one point, the sergeant left the room and returned with a handgun. The alleged victim would later say that the sergeant first pointed the gun at her, and then to the dog, which he threatened to kill.

The woman made her way out of the room, out the front door and walked to the neighbor’s home. As she was walking, she said she heard a gunshot behind her. The sergeant later explained to the responding officers that the gun had accidentally discharged when he was attempting to put it away.

He was nonetheless arrested, and in addition to the weapons charges, he is facing charges of assault and battery and witness intimidation.

It’s likely that the officer will also be placed on leave from work, pending the outcome of the criminal investigation, as well as the likely internal investigation. In both cases, he will require legal services from an experienced criminal defense attorney with proven results.
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