Criminal Records & Mass. Gun Licenses

In Massachusetts, your criminal record can disqualify you from employment and impact your ability to be issued a License to Carry Firearms.  Massachusetts licensing authorities are required to run background checks on Firearms License applicants, including those who are applying for licenses to carry firearms as well as firearms identification cards. These background investigations include CORI checks. CORI is an acronym for “criminal offender record information.”

Your CORI or criminal history may contain sealed records. There was always a legal question regarding the ability to break the seal on a juvenile record for firearms licensing purposes. However, the CORI Reform Law which went into effect on May 4, 2012, clearly states that law enforcement agencies can have access to sealed juvenile records.  Thus, these records can now be used by licensing authorities to disqualify applicants for firearms licenses in Massachusetts.

Prior to applying for a license to carry firearms or FID in Massachusetts, you should download and carefully review your CORI. You can obtain a copy of your criminal history by following this link.

It is very important to review your CORI prior to completing a firearms license application so that you can fully and accurately disclose the contents of your record. Contact a Massachusetts Firearms Lawyer if you have any questions regarding your record or the application process.

Proposed Massachusetts Firearms Legislation

An important message from Certified Firearms Instructor Bruce A. Blessington:

Since early this year, in the aftermath of the horrible Newtown School shootings,  Massachusetts legislators have filed nearly 20 separate bills dealing with firearms. Some of these are sensible and quite constructive measures. Others, are highly restrictive, abusive and destructive of the rights of law abiding citizens to own and use firearms. As is so often the case in this state, anti- gun lobbyists seem to have the ear of the legislature and the press and are thus able to push their ideology that seeks to eliminate all firearms ownership by private citizens. These pieces of legislation often mask the motives of their authors with pious titles such as “An Act to reduce gun violence and to protect the citizens of the Commonwealth” or  “An Act regarding the prevention if illegal trafficking and gun violence among youth in the Commonwealth”. In fact these legislative proposals are nothing more than political theater designed to persuade the press and the uninformed electorate that they, the legislators, are really “doing something about guns”. At the same time, some of these legislative initiatives, if passed, will, among other things, drastically curtail the rights of gun owners to possess and use all types of rifles and semi-auto pistols and impose draconian and invasive liability insurance requirements on any individual that owns guns. As is usually the case, the tougher societal issues involving mental health records, locking up gang members with guns and enforcing the volumes of gun laws already on the books get little if any attention.

My colleague Rick Swasey and I have reviewed 13 of the more significant of these legislative proposals and drafted extensive written comments on each. Our focus has been to identify and review those legislative proposals that we felt were the most destructive of our second amendment rights and one or two that we thought should be supported. In the category of initiatives that deserve gun owner support, I would ask you to consider HB 1560, HB 2181, HB 2182, HB2183, HB 3247 and  HB 3256. Due to limited time, we have not generated detailed written comments on any of these six bills but believe we should all support them.

I have attached two .pdf files: the first entitled Comments by Key Legislative Provisions deals with subject matter (gun club storage, gun registration etc.) since the same subjects and the same language appear in multiple bills. Also included in this file is a chart listing the bills and their content by Key Provision. The second file, Comments by Bill Number  is a set of comments on each individual bill listed on the chart. I have also attached a PowerPoint Presentation that deals with the fictional problem of “Assault Weapons”.

I hope that you will use these files with your elected representatives to see if we can collectively head off a disaster. You should feel free to merely forward them and this e-mail unaltered over your own name, without attribution. Rick and I plan to personally place copies of these materials in the hands of each of the members of the Joint House and Senate Public Safety and Homeland Security Committee https://malegislature.gov/Committees/Joint/J22 and to attend as many of the public hearings as possible. In order to learn the schedule of these meetings in your area it is necessary to call the Committee since the web site is never up to date. Please help us with this important effort by forwarding these materials over your signature to your elected representatives as well as the members of the Joint Committee. Please also forward this to all the  gun owner friends in your e-mail directory and ask them to pass it on. I would like to bury Beacon Hill under the weight of these comments. Together, we can change the outcome. Thanks for your help.

Bruce A. Blessington
Certified Firearms Instructor:
NRA, Sig, MA, UT & LEOSA
Basic Pistol, Rifle, Advanced Personal Defense
Tel: 508-353-6401 Fax: 617-580-8483
e-mail: bab@s2alphafirearmstraining.com

Marijuana & Firearms Licensing

Although possession of less than an ounce of Marijuana was decriminalized, a conviction for unlawful marijuana possession, a Class D Controlled Substance in Massachusetts, remains a statutory disqualifier for a License to Carry Firearms. However, a conviction for simple possession of marijuana will not disqualify someone from being issued or holding a Firearms Identification Card, so long as the conviction is at least 5 years old. A conviction for trafficking in marijuana would constitute a lifetime disqualifier.

Also, although possession of less than an ounce of marijuana is now a civil infraction in Massachusetts, it is still a violation of federal law. Furthermore, pursuant to 18 U.S.C. § 922(d)(3), it is a federal offense for a person to sell or transfer any firearm or ammunition to a person who the transferor knows or has having reasonable cause to believe that the transferee is an unlawful user of or addicted to a controlled substance.

The Federal Controlled Substances Act of 1970 completely prohibits all medicinal use of marijuana by placing it in the most restrictive category of Schedule 1. The DEA has determined that controlled substances placed in this category 1) have no therapeutic value, 2) are not safe for medical use, and 3) have a high abuse potential. Therefore, under federal law, there are no “lawful users” of marijuana, notwithstanding any state registration, decriminalization, or “legalization.” As such, the possession or use of marijuana still violates federal law.

When it comes to deciding whether or not to issue a LTC, a police chief or licensing officer can still use marijuana use or possession as a reason to determine than the applicant is unsuitable to hold such a license.

There are ways to overcome disqualifying marijuana convictions when seeking a License to Carry Firearms, especially if you have an otherwise clean record and a legitimate need for such a license for employment or other valid purposes.

The DUIL Program & “Habitual Drunkenness”

Those convicted of a 2nd of subsequent operating under the influence offense (OUI) are often assigned to an alcohol education program approved by the Massachusetts Department of Public Health. The 2nd offense OUI program is known as the Massachusetts DUIL Program. The program is operated by the Middlesex Human Service Agency and the acronym DUIL stands for Driving Under the Influence of Liquor. This program assignment is often made as a condition of probation. In order to satisfy this probation condition, the person convicted of a repeat offense DUI must satisfactorily complete a 14 day in-patient component which is held at Tewksbury State Hospital.

Massachusetts DUIL program attendance may disqualify a person from holding a Firearms Identification Card or License to Carry Firearms (LTC) in Massachusetts. Competing this program may cause a Chief of Police or Licensing Authority to deny you a firearms license, including a LTC, because G.L. c. 140 § 131 statutorily disqualifies a person who “is or has been under treatment for or confinement for drug addiction or habitual drunkenness.” Some licensing officials have decided that being treated at the DUIL program qualifies as “treatment” or “confinement” for “habitual drunkenness.”

Interpreting completion of the DUIL program as “confinement” is wrong because a person is not “confined” at the program. Attendees are not locked in or incarcerated while attending the DUIL program at Tewksbury State Hospital, which is not a correctional facility.  Attendees are free to leave the program. Of course, leaving the program will likely result in a violation of probation. However, those who participate in the alcohol education program are not “confined” there.

Secondly, all that is required to convict someone of DUI is that the person operated a motor vehicle on a public way or public right of access while they were “under the influence” of alcohol. The law does not require that the person was “drunk.” The law only requires that a person’s ability to drive safely was diminished by alcohol, not that the person was intoxicated or drunk. Therefore, someone could be assigned to complete the DUIL program without ever having been drunk.

Fortunately, for LTC applicants and Mass. Firearms license holders dealing with this issue, Massachusetts Firearms Lawyers such as Attorney Jesse Cohen have been able to overcome this obstacle when it comes to LTC applications, renewals, and suspensions. If you have been denied a firearms license due to confinement or treatment for what some are calling “habitual drunkenness,” you should contact a lawyer to discuss your situation and ways to resolve this issue.

 

Question 10 on Mass. LTC & FID Applications

You may be able to dramatically increase your chances of obtaining a License to Carry Firearms by hiring a lawyer to review and prepare your License to Carry Application Package. One of the reasons for this is that firearms license applicants often misunderstand Question 10 on the application and they might not provide an accurate answer.  It is critically important to provide accurate information when completing an application for a License to Carry or Firearms Identification Card.

The standard Massachusetts firearms application form must be signed under the penalties and pains of perjury. Also,  knowingly  making false statements in an application for a LTC or FID is a criminal offense which will not only result in the denial of the application, but it carries a fine of at least $500.00 up to $,1000.00 and a jail sentence of at least 6 months up to 2 years in jail.

Question 10 asks, “have you ever appeared in any court as a defendant for any criminal offense (excluding non-criminal traffic offenses)?”  You must answer “yes,” to this question even if you were found not guilty or the charges were dismissed. Also, the Massachusetts Firearms Record Bureau is legally allowed to review and consider sealed records, including sealed juvenile records, when processing a firearms license application.

It is possible to appear as a criminal defendant in Massachusetts without having been arrested. For example, if you appeared in court in response to a criminal citation or summons, you must answer yes to Question 10, even though you’ve never been arrested.

You do not need to answer “yes,” if your only offenses were civil motor vehicle infractions such as speeding. However, if you were charged with a criminal motor vehicle offense such as operating after the suspension of your license or unlicensed operation, you must answer “yes” to Question 10

If you have any question as to how to answer Question 10 on your Mass. LTC or FID application, I strongly suggest that you contact a Massachusetts Firearms Lawyer prior to submitting your application.

Secure Storage Requirements of G.L. c. 140, § 131L

G.L. c. 140, § 131L, makes it unlawful to store a rifle, machine gun, shotgun, or firearm that is not carried by or under the immediate control of the owner or other authorized user unless the firearm is secured in a locked container or equipped with a safety device that renders the firearm inoperable by anyone other than the owner or other authorized user.

A firearm is under the owner’s immediate control when the owner is sufficiently nearby to immediately prevent an unauthorized person from using it.  When the owner is carrying the firearm or he can immediately reach it, the gun is not required to be secured. Therefore, with a License to Carry Firearms (LTC), it is lawful to carry a loaded firearm in your home or to keep unsecured, so long as it is under your immediate control.

Firearms, rifles, shotguns, and machine guns must be securely locked only when not being carried or when the owner does not have immediate control over the firearms, so as to prevent their unauthorized use. It is not enough to simply “store” the firearm. Instead, it must be “securely” stored. This means that the firearm must be placed in a locked container which would physically prevent a child or other unauthorized person from using it. Locking the firearm with a mechanical “trigger lock” or other tamper resistant mechanical device will also satisfy the safe storage law, so long as the weapon is rendered inoperable to anyone but the owner or authorized user.

It might be possible to have a room or closet considered a “locked container.” However, the “contained” must be sufficiently secured. In one case where rifles were stored in a bedroom closet, which was secured only by a privacy lock which could be easily opened with a bobby pin, it was determined that the “container” was not secure enough to satisfy G.L. c. 140, § 131L.

Lawful gun owners should be aware of the secure storage requirements of G.L. c. 140, § 131L and insure that their weapons are properly secured against theft and misuse.

Bill D., one of our readers, asked “Did the District Of Columbia v. Heller decision affect the Mass. law regarding keeping firearms locked up and effectively useless?” The answer is that the Massachusetts secure storage law does not violate the rule announced by the United States Supreme Court in the Heller case. In Heller, the U.S. Supreme Court ruled that the 2nd Amendment guarantees an individual the right to a firearm in the home for self-defense. In McDonald v. Chicago, the U.S. Supreme Court ruled that the Second Amendment is applicable to the States, such as Massachusetts.

Because G.L. c. 140 Sec. 131L “does not require that firearms in the home be rendered and kept inoperable at all times” and “does not make it impossible for those persons licensed to possess firearms to rely on them for lawful self-defense,” there is no violation of the standard announced in Heller. So long as you are carrying the firearm or you have it under your immediate control, you can keep a loaded firearm in your home. Thus, you can use a firearm for self-defense in accordance with your 2nd Amendment right.

Firearms Records Bureau v. Simkin

On November 6, 2009 Jay Edward Simkin went to a doctor’s appointment in Stoneham, Massachusetts. He used a pseudonym when he registered for the appointment and he paid cash for services rendered. An employee of the medical practice became alarmed when she discovered that Simkin was carrying firearms, even though he held a valid license to carry firearms (LTC). Hours after Simkin  left the doctor’s office, a call was placed to the Stoneham Police.

On November 13, 2009 the Massachusetts Firearms Records Bureau revoked Simkin’s LTC claiming in part, “On Friday, November 13, 2009 I spoke with the manager *** who confirmed that on Friday employees were alarmed and concerned their safety on November 6, 2009.” On February 5, 2010, the  Firearms Records Bureau refused Simkin’s request to reconsider the decision to revoke his license to carry firearms, on the grounds that he was no longer is a “suitable person” to hold such a license because he was armed during his doctor’s visit.

He has never been arrested and he was a Federally-licensed Firearms dealer who underwent extensive training in proper defensive uses of firearms and other weapons.

The Massachusetts Supreme Judicial Court heard oral arguments in this case earlier this month and a decision is expected in August or September of this year.

The Massachusetts High Capacity Magazine Ban

A so-called “high capacity” magazine is an ammunition feeding device which accepts, or can be easily modified to accept, more than ten rounds of ammunition or more than five shotgun shells. It is also that which is defined as such by 18 USC 921(a)(31), as it appeared when the federal so-called “assault weapon” ban was passed on September 13, 1994. Although the federal ban has since expired, the Massachusetts “high capacity” magazine ban lives on. Tubular .22 caliber ammunition feeding devices are not considered high capacity magazines.

The mere possession of a high capacity magazine without a Class A License to Carry Firearms is a crime. Also, for the possession of a high capacity feeding device by a non-law enforcement official to be lawful, it must have been lawfully owned or manufactured prior to September 13, 1994.  In Massachusetts, it is unlawful for a private citizen to own a high capacity magazine which was not lawfully possessed prior to that date.

G.L. c. 140 § 131M makes it a felony to “sell, offer for sale, transfer or possess” a high capacity ammunition feeding device or magazine that was not lawfully possessed on September 13, 1994. There is an exemption for active duty and retired law enforcement officers. These magazines may be referred to as “post ban” magazines, with those being lawfully possessed prior to September 13, 1994 being referred to as pre-ban magazines.

The Massachusetts Instant Record Check System & “Subsequent Activity”

The Massachusetts Department of Criminal Justice Information Systems (DCJIS) operates the Massachusetts Instant Record Check System, which is more commonly referred to as MIRCS. An important component of this system is the subsequent activity feature.

The subsequent activity component of MIRCS receives a nightly download of criminal court activity from courthouses across Massachusetts and it compares that information with the names and dates of birth of those who have been issued Licenses to Carry Firearms or Firearms Identification Cards. When a match between the court activity and firearms license records is found, the system alerts the licensing officer that someone who he or she licenses was involved in court activity, which may result in the suspension or revocation of the person’s firearms license on the grounds of suitability or statutory disqualification.

Under this system, if you are licensed in one community but arrested in another, the Police Chief or his designee who issued your LTC or FID will be electronically notified when you appear in court as a criminal defendant. Your appearance may result in the suspension or revocation of your firearms license. If this happens, you should contact a lawyer such as Attorney Jesse C. Cohen.

Carrying Firearms, Rifles, & Shotguns in Vehicles

You can only carry a loaded firearm in a motor vehicle if you have a Class A License to Carry Firearms (LTC) and it is under your direct control. A person who has a Class B LTC cannot carrying it in a motor vehicle. Instead, it must be unloaded and held in the vehicle’s locked trunk or a locked case or other secure container. A large capacity rifle or shotgun must also be unloaded and secured in the car’s locked trunk, a locked case, or a secure container. The prohibition against loaded large capacity rifles and shotguns in vehicles applies regardless of the type of license which a person has. Even Class A LTC holders cannot carry loaded large capacity rifles and shotguns in their vehicles. Weapons not carried under the owner’s direct control with a Class A LTC must be secured in a case, container or trunk to satisfy the law. A trigger lock will not satisfy the “container” requirement. However, a locked and secure car trunk will satisfy the law. In the case of a “hatchback,” a separate case is likely required. There are also open legal questions regarding glove compartments and pickup trucks with caps and covers.

Any rifle, shotgun, or handgun left in a motor vehicle, not under the owner’s direct control must be stored in a securely locked container to satisfy the safe storage requirements of G.L. c. 140 § 131L.