The “Castle” Law in Massachusetts

As a general rule in Massachusetts, the right to use force in defense of oneself or another arises only in circumstances where the person using self-defense avails himself of all proper means to avoid physical combat. However, G.L. c. 278, § 8A represents an exception to this rule. The law provides a defense to the occupant of a dwelling house who is charged with causing injury or death to an intruder. In order to qualify for this affirmative defense, the person charged with injuring or killing the intruder must provide the following three things (1) that he or she reasonably believed that the intruder was unlawfully entering the dwelling, (2) that he or she reasonably believed that the intruder was about to inflict death or serious bodily injury upon the defendant or someone else who is lawfully in the dwelling, and (3) the defendant acted with reasonable means of self-defense or defense of another person who was lawfully present.

When all of the above-listed circumstances are present, under the Massachusetts so-called “castle law,” the homeowner or lawful occupants of the  dwelling have absolutely no duty to retreat prior to resorting to self-defense. In summary, the “castle law” relieves a person, otherwise justified in the use of force in self-defense or defense of another, of the duty to retreat (if possible) before resorting to the use of force.

Outside of one’s dwelling, prior to resorting to force in self-defense or the defense of another, there is a duty to retreat if it can be done safely, meaning that retreating would not increase the danger to the person acting in self-defense or another third party. Also, the “castle defense” can only be invoked in cases involving an intruder. When two people are lawfully present inside a dwelling, one of the occupants cannot use the castle doctrine as justification for using force against another person who is lawfully present. Furthermore, the doctrine only applies inside the home itself. It does not apply to the areas surrounding the home such as the driveway, porch, so-called “common areas,” the sidewalk, or lawn.

Denials Based on Old Marijuana Convictions Overturned

Judge Stearns of the United States District Court for the First District of Massachusetts recently overturned the denial of two “permits to purchase” handguns which were denied based on two out of state simple possession of marijuana convictions, which were 30 and 40-years old at the time the plaintiffs sought their “permits to purchase.”

The police chiefs denied both applicants based on Chapter 180 of the Acts of 1988 which prohibit those convicted of violations of G.L. c. 94C from being licensed to possess firearms.

Judge Stearns ruled that as applied to the two plaintiffs, the prohibition against firearms ownership found in G.L. c. 140 § 131(d)(i)(e) and §131A unconstitutionally infringed on the plaintiff’s Second Amendment rights to possess handguns in their homes for self defense and the right to maintain proficiency with them.

Both plaintiff’s had valid Firearm Identification Cards (FID). They sought, from their respective police chiefs, permits to purchase, which would have allowed them to purchase non-high capacity handguns and keep them in their homes for self-defense.

In Dist. of Columbia v. Heller, our Supreme Court announced that the 2nd Amendment gives us the right to possess and carry weapons in self-defense of  “hearth and home.” In McDonald v. City of Chicago, the Supreme Court held that the Heller decision applies to the states.

Judge Stearns held that the Massachusetts Gun Control Law infringes on their right to possess firearms in their homes for self-defense. They were not given the right to carry firearms outside of their homes, except for target practice.

Read the full text of the decision here. (PDF).

Storage of a Firearm in Your Glove Compartment

In the Massachusetts firearms case of Commonwealth v. Amaury Reyes, 464 Mass. 245 (2013), the defendant, identified as Amaury Reyes, worked as a correctional officer for the Essex House of Correction. On April 10, 2010, he drove to work carrying his personal firearm on him. Reyes held an unrestricted a Class A LTC. When Reyes, arrived at the House of Correction for work, he could not find a vacant locker to store his handgun. Reyes decided to return to his car and secure his gun along with its holster inside the car’s glove compartment. As Reyes entered work, one of the officers asked if he could search Reyes’ vehicle. Reyes consented to the search and informed the officer that he had secured his firearm inside his car’s glove compartment. The officer asked Reyes if the firearm was outfitted with a cable locking device and Reyes indicated the firearm did not have a cable or trigger lock. Reyes was charged with unlawful storage of his firearm under G.L. c. 140 § 131 (L)(a). After a jury trial, Reyes was convicted and he appealed his conviction and challenged the constitutionality of the secure storage law.

The Massachusetts SJC overturned Reyes’ conviction for other evidentiary issues but held that the Mass. secure storage law is constitutional and does not interfere with the Second Amendment because it requires that a firearm be placed in a “secured locked container.”

Although the SJC did not define what qualifies as a “secured locked container” it did list that “at a minimum, to be secure, any qualifying container must be capable of being unlocked only by means of a key, combination, or other similar means.” 18 U.S.C. §921 (a)(34) (c) (2006) (requiring “secure gun storage or safety device” be designed to unlock only by means of key, combination or other similar means). It was clear from the SJC’s holding that a “motor vehicle itself would not qualify as a secured locked container under G.L. c. 140 § 131 (L)(a). Whether a storing a firearm in a locked glove compartment within a car that is alarmed and locked qualifies as “secured locked container,” was left unanswered. G.L. c. 140 § 131 (L)(a). “does not bar the defendant from carrying a firearm on his person or under his control without a trigger lock or the need to secure it in a locked container either inside or outside of a motor vehicle.” The storage statute only imposes restrictions when the firearm is not in the gun owners’ possession or control and therefore it is does not interfere with an individual’s second amendment right to bear arms.

Jay Simkin v. Firearms Records Bureau

Jay Simkin was a New Hampshire resident and a federally licensed firearms dealer who buys and sells guns at private parties, at gun shows, and at auctions.” Simkin also had a temporary nonresident Class A unrestricted license to carry firearms in Massachusetts, which was renewed.

In 2009, Simkin went to a medical appointment in Stoneham, Massachusetts and informed medical assistant that he was armed and he secured his weapons (two firearms, ammunition, and four knives) in a locked briefcase during the appointment. Additionally, Simkin used a pseudonym (“Horace Jones”) and Maryland address to register at the medical facility. Employees of the medical facility were “alarmed” and “concerned for their safety” based on Simkin’s conduct, and called the Stoneham police much later that day to report their concerns.

Stoneham police investigated the incident and attempted to contact Horace Jones. At some point, Simkin became aware that Stoneham police were looking for Horace Jones, the pseudonym he used. Simkin’s attorney contacted the police and sent copies of his Massachusetts license and his Federal firearms license, as well as copies of receipts for payment for the medical services. Simkin’s attorney also informed the police that his client used a pseudonym for privacy reasons.

The police sent a letter to the Firearms Records Bureau and Simkin’s license was revoked because he was no longer a “suitable person” to possess a firearm in Massachusetts. The bureaus letter stated that Simkin’s visit to the medical office while “heavily armed” fell outside the “business activity” of buying and selling firearms and that his actions caused “fear and alarm” at the medical office. Furthermore, Simkin used a false name in order to conceal his identity.

Simkin filed a petition for judicial review in District Court and the judge concluded that “suitability” was not an appropriate ground for license revocation. The judge also found Simkin had an unrestricted License to carry firearms “for all lawful purposes,” G. L. c. 140, § 131 (a), including personal protection. Second, there was no support for the bureau’s contention that Simkin did anything to cause fear and alarm at the medical office apart from the fact that he was carrying concealed weapons, something that he was lawfully entitled to do. Third, although Simkin used a pseudonym while receiving medical treatment in order to protect his privacy, there was no suggestion that Simkin was committing a crime or perpetrating a fraud. A Superior Court Judge vacated the District Court Judge’s finding and the case was further appealed.

The SJC held that because Simkin held an unrestricted Class A license to carry firearm with no restrictions he was allowed to carry firearms “for all lawful purposes.” G. L. c. 140, § 131 (a) including into a medical office. Simkin’s decision to carry his firearms to his medical appointment did make him unsuitable to have a License to Carry. The SJC stated that the medical staff’s claim that Simkin caused alarm because he was “heavily armed” was meritless. “Simkin is not responsible for alarm caused to others by his mere carrying of concealed weapons pursuant to a license permitting him to do.”

“Open Carry” allows Class A LTC holders to carry exposed and loaded in public barring any local restriction on the permit. “Open carry” allows Class B LTC holders to carry exposed and loaded non-large capacity weapons in public unless there is a local restriction on the permit. M.G.L. c.140 s 131C restricts class B holders from carrying in a vehicle unless the weapon is secured and unloaded.

The Law Enforcement Officer Safety Act

The Law Enforcement Officer Safety Act (LEOSA) allows qualified law enforcement officers to carry firearms, without having to hold a License to Carry Firearms. Police officers refer to this as the federal “right to carry.” The law authorizes both active duty and qualified retired police and other law enforcement officials to carry concealed handguns across state lines without a state issued firearms license. To qualify, as a retired law enforcement officer, you must have a total of 10 years or more service as a law enforcement officer, and that definition includes service provided as a military or and Department of Defense police officer. Active duty law enforcement officers include officers of the Amtrak Police Department, Federal Reserve, and executive branch of the U.S. Federal Government.

While many police agencies argue that only full-time officers qualify for the right to carry firearms under the LEOSA, the plain language of the statute itself and decisions interpreting it suggest otherwise. For example, a Coast Guard reservist, who was off duty when he was arrested for carrying a firearm which the Coast Guard did not authorize him to carry while off duty was determined to be a qualified law enforcement officer and exempt from prosecution under the NY State Firearms Law. The US Attorney’s Office has recognized that the definition of “qualified law enforcement officer” is to be broadly interpreted.

In January of last year, Congress amended the LEOSA to require active and retired law enforcement officers to carry a photographic ID which identifies them as qualified under the LEOSA to carry firearms. This may be a problem for some because the LEOSA does not grant any rights to obtain the required ID card and it does not provide any recourse for an agency’s failure to issue one.

If you are a qualified law enforcement officer, either active or retired, you should check with your employer or former employer regarding your rights under the Law Enforcement Officer Safety Act.

Carrying a Firearm While Intoxicated: Not Guilty

On August 24th, 2012. Worcester Police Officers were dispatched to a bar to assist State police with a investigation of a person with a gun. Unidentified females stated that there was  a white male wearing a black shirt and khaki shorts who was carrying a gun. Officers approached the male matching the caller’s description and they asked if he was carrying a firearm to which he responded “yes.” At this point, police handcuffed the person and asked if he had a license to carry firearms and he responded “yes”. In his right front pocket he had a money clip containing a valid Class A Massachusetts License to Carry Firearms.

The male had a loaded Smith and Wesson M&P .45 in a holster on his belt. Police determined that he had been consuming alcoholic beverages and the man admitted that he had consumed drinks at two other locations. The reporting police officer noted that he could smell the odor of alcoholic beverages coming from his breath. He confiscated the firearm and charged the defendant with Carrying a firearm under the influence of alcohol in violation of G.L. c. 269 § 10H. A violation of this law carries a sentence of incarceration of up to 2½ years in a jail or house of correction or a fine of not more than $5,000 or both.

Fortunately, the defendant in this case hired the right lawyer: Attorney Paul B. Watkins. Another lawyer suggested that the client “plead out.” However, Attorney Watkins took the case to trial and he achieved a not guilty verdict. No jail, no fines, and no criminal record.

Firearms Identification Card Q&A

In Massachusetts, you can keep a non-large capacity handgun in your home or place of business if you have a valid Firearms Identification Card.  Pursuant to G.L. c. 140 § 129B, you are prohibited from being issued a Firearms Identification Card if you have been convicted of a misdemeanor punishable by imprisonment for more than two years. However, there is a restoration of civil rights provision, pursuant to which your right or ability to possess a non-large capacity rifle or shotgun can be restored 5 years after conviction or release from incarceration or supervision, whichever comes later.

If the crime of driving under the influence carries a sentence of less than 2 years, then you can apply for a Firearms Identification Card, which would allow you to keep a non-large capacity handgun, rifle, or shotgun in your home. You could not carry these weapons and you could not purchase a handgun without a permit to purchase.

Proposed Firearms Inspection Plan Likely to Fail

G.L. c. 140 § 131L requires Massachusetts gun owners to securely store their firearms. To enforce this law, Swampsott Selectman Barry Greenfield has suggested that police should ensure compliance with this law by conducting inspections of gun owner’s homes. Assumedly, under the proposed plan, police officers would conduct random inspections of firearms owners’ homes to confirm that their weapons were securely locked or under the owner’s immediate control.

Such a plan is likely to fail constitutional scrutiny. The 4th Amendment to the United States Constitution and Article 14 of the Massachusetts Declaration of Rights both protect citizens from “unreasonable searches and seizures.” Indeed, “nowhere are expectations of privacy greater than in the home.”

Charges of unsecured firearms are filed, in most cases, when the police are lawfully present in someone’s home, usually in response to a report of a crime, and an officer makes a “plain view” observation of a handgun, rifle, or shotgun which was left unattended and not secured. Allowing officers to enter into private residences solely for the purpose of seeing whether weapons are kept pursuant to G.L. c. 140 § 131L is highly unlikely to succeed.

Juvenile Delinquency Bars License to Carry

In the case of Chardin v. Police Commissioner of Boston, the Massachusetts Supreme Judicial Court held that a person who was adjudicated a delinquent child by reason of having committed a felony is legally precluded from being issued or holding a license to carry firearms in Massachusetts.

The Massachusetts SJC further ruled that the Massachusetts Firearms Licensing Law which prohibits someone who was adjudicated a delinquent child for having committed a felony did not infringe on the LTC applicant’s 2nd Amendment rights, even after the Supreme Judicial Court’s decision in District of Columbia v. Heller, 554 U.S. 570, 630, 635, 128 S. Ct. 2783 (2008).

Mirko Chardin was adjudicated a delinquent child after he admitted that there were facts sufficient to support the charges of possession of a firearm and ammunition without a valid License to Carry Firearms or Firearms Identification Card. Many years thereafter, pursuant to G.L. c. 140, § 131, Chardin applied for a Class A LTC. In response to his application, Chardin received a letter from the Boston Police Department stating that his Class A LTC application was denied because, “you have a sealed record with a disqualifying conviction(s) as outlined in chapter 180 of the Acts of 1998.

In ruling on the appeal of the denial of his Class A LTC application, the SJC noted that the unlicensed possession of a firearm in Massachusetts is and was a felony and although the juvenile justice system treated Chardin as a “juvenile delinquent” instead of an adult “criminal,” the violation of law which he committed was a felony under Massachusetts law. The ammunition charge is and was a misdemeanor. The SJC ruled that the prohibition against issuing firearms licenses to felons set forth in G.L. c. 140, § 131 prevented the issuance of a license to carry firearms and the prohibition does not violate the right to keep and bear arms set forth in the Second Amendment, as defined in District of Columbia v. Heller and made applicable to the individual states, including Massachusetts, by the Supreme Court’s decision in McDonald v. Chicago (PDF).

If you are being denied a License to Carry Firearms due to a Juvenile Delinquency Adjudication or for any other reason, you may have legal recourse by appealing to the Firearms Licensing Review Board or appealing the Juvenile Delinquency Adjudication. Contact a lawyer for more information.

Massachusetts’ Highest Court Rules in Favor of Gun Owner

Jay E. Simkin appeared for a doctor’s appointment carrying two loaded handguns and 4 knives. He gave the doctor’s office a false name to protect his privacy. He did not prove his telephone number and paid the bill in cash. The Massachusetts Firearms Records Bureau revoked his Class A non-resident Massachusetts License to Carry Firearms on the grounds that he was not a “suitable person” to hold such a license based on his reporting to a medical appointment with the 2 loaded firearms and 4 knives. The Firearms Records Bureau also notified the Nashua, New Hampshire Police Department as that is where Simkin lived. The FRB notified the federal Bureau of Alcohol, Tobacco, Firearms and Explosives, because Simkin held a Federal Firearms License (FFL).

Simkin  appealed the revocation of his LTC and the Massachusetts Supreme Judicial Court ruled in his favor.  In reversing the firearms license revocation, the SJC noted that the Firearms Records Bureau had not promulgated regulations regarding suitability to hold a LTC and that Simkin’s actions in this case did not render him an “unsuitable person” to hold a non-resident Class A License to Carry Firearms.

Commonwealth Second Amendment, Inc. filed an amicus brief in this case.