Attorney General’s Crackdown on Mass. Firearms Dealers

Massachusetts Attorney General Maura Healey has recently initiated a “crackdown” on firearms dealers in Massachusetts. According to the Boston Globe, this enforcement initiative is allegedly promoted by the mass shootings which have occurred.

The Attorney General’s Office has historically been anti-gun. For example, the office uses its consumer protection powers to enact gun control, by restricting licensed dealers from selling certain firearms, which do not meet the Attorney General’s requirements, to private citizens. This prohibition applies only to licensed gun dealers and not to sales conducted between private citizens.

This latest initiative is apparently aimed at Massachusetts Firearms Dealers who are supposedly selling “assault weapons” or “high capacity” magazines. Under G.L. c. 140 § 131M, it is illegal to sell, offer for sale, transfer, or possess these items if they were not lawfully possessed on or before September 13, 1994. It is a felony.

Law enforcement officers, both active and retired, are exempt from this “assault weapons ban.”

The Attorney General’s Office is supposedly sending investigators to gun stores to conduct “spot checks” to ensure compliance with the ban.

The Boston Globe article cited one previous case of a firearms dealer in Westport, Massachusetts who sold Glock handguns which were prohibited for sale in Massachusetts. The prohibition against the sale of these handguns originates from the AG’s consumer protection powers. However, when the state itself or law enforcement agencies is the “consumer,” the regulations do not apply. Only firearms which are on an “approved weapons roster,” which is maintained by the Executive Office of Public Safety and Security at the recommendation of the Gun Control Advisory Board can be sold by dealers in Massachusetts. See 501 CMR 7.00.

The FLRB and Federal Law

The Firearms License Review Board has the legal authority to restore your firearms rights if you have been convicted of certain misdemeanors such as Assault and Battery or Operating Under the Influence. A restoration from the Massachusetts FLRB would previously restore your rights on both the state and federal levels. Now, based on an opinion from the U.S. Bureau of Alcohol, Tobacco, Firearms, and Explosives, BATFE, FLRB restorations of rights only remove state prohibitions.

At a meeting of the Massachusetts Firearms License Review Board, the Department of Criminal Justice Information Services Manager of Law Enforcement & Justice Services, Michaela Dunne, reported that BATFE has indicated that the agency will no longer recognize FLRB decisions as removing federal firearms prohibitions or disqualifications. Therefore, even if you receive or have received relief from the Mass. FLRB, and were issued a License to Carry Firearms, you will still be considered a “prohibited person” pursuant to 18 U.S.C. 922(g). The rationale for this decision is the United Supreme Court’s ruling in Logan v. US, 552 US 23 (2007). In this case, the court found that an individual whose civil rights were never lost they cannot be restored.

Given the number of individuals potentially impacted by this situation, there is likely to be further litigation in this area.

Firearms Licenses & Marijuana Convictions

Massachusetts Firearms Law statutorily prohibits a Police Chief or licensing official from granting a License to Carry Firearms or Firearms Identification Card to any applicant who has been convicted of a violation of drug laws. This prohibition also applies to juvenile delinquency and youthful offender adjudications. However, in 2008, the voters of Massachusetts overwhelmingly voted to decriminalize the possession of marijuana in quantities less than one ounce. This is treated as a civil offense and it cannot be used to disqualify an individual. Therefore, possession of less than one ounce of marijuana is no longer a disqualifier in Massachusetts for firearms licensing purposes.

On April 18, 2014, Judge Steams of the United States District Court for the District of Massachusetts ruled that two LTC Applicants, who were convicted of possession of marijuana many years before in the states of Maine and Virginia, were not disqualified from being issued LTCs. Judge Steams ruled that the drug disqualification which appears in G.L. c. 140, § 131 could not be relied upon to deny these individuals firearms licenses. He further ruled that the denials based on marijuana convictions deprived the applicants their rights guaranteed by the Second Amendment to the U.S. Constitution.

In another case, which was decided on September 9, 2015, Judge Sorokin of the United States District Court for the District of Massachusetts also ruled that a plaintiff, who convicted of possession of less than one ounce of marijuana in the state of Florida in 1975, was not disqualified from being granted a Massachusetts Firearms Permit.  Judge Sorokin declared that the application of G.L. c. 140, § 131 to the plaintiff to deny him a license to carry on the basis of the Florida conviction would result in a deprivation of rights guaranteed by the Second Amendment to the Constitution of the United States.

Therefore, were an applicant for a Firearms Identification Card (FID) or License to Carry (LTC) has an out of state marijuana possession conviction and there is no evidence to show that the amount of marijuana possessed exceeded one (1) ounce, the drug disqualification provisions of G.L. c. 140, § 131 and 140, § 129B will not prohibit you from being issued a firearms license. This only applies to simple possession cases and it does not apply to trafficking, distribution, possession with intent to distribute, or any other drug crime.

New Firearms Law Likely to be Passed

The latest version of the proposed Massachusetts Firearms Legislation will allow police chiefs and licensing authorities to refuse to issue Firearms Identification Cards (FIDs) to individuals who they find are not suitable to hold such licenses.

Currently, if an applicant is not statutorily prohibited from holding a Firearms Identification Card, the law requires that the licensing authority “shall issue” the FID. This means that the police chief cannot deny someone a Firearms Identification Card, which allows the individual to possess rifles, shotguns, and ammunition so long as the person is not legally prohibited from holding such a license.

The proposed legislation would allow police chiefs and firearms licensing officials in Massachusetts to refuse to issue FIDs to those who are determined to be unsuitable, so long as the police obtain approval from a judge within ninety (90) days of the application.

This legislation is a “compromise bill.” Police chiefs wanted to be able to deny FID cards based on suitability without having to obtain judicial approval in advance. Advocates for gun owners wanted to keep the “shall issue” provision, which prevents licensing authorities from considering suitability when it comes to FID cards.

The Bill contains other provisions which creates an internet based web portal to be used for background checks which are to be conducted prior to private sales of firearms, rifles, or shotguns. The legislation also contains a provision which makes Massachusetts part of the National Instant Check (NICS) system.  Finally, the Bill creates a Firearms Tracking Unit within the Massachusetts State Police and increases penalties for certain crimes involving firearms.

The Bill was the product of a conference committee comprised of members of both the House and Senate. By requiring licensing officers to seek judicial approval prior to denying FID cards, the Bill satisfies licensing officials while it satisfies some gun owner advocates by shifting the burden to the Chief of Police to prove that an applicant is not suitable.

 

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).

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.

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.

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