Drug Convictions & Licensing in Massachusetts

 

Drug convictions can have many hidden and unpleasant consequences. For example, any conviction of any law regulating the use, sale, or even possession of drugs or controlled substances, as defined by G.L. c. 94C § 1, will trigger a lifetime prohibition which will prevent you from purchasing a handgun or being issued a License to Carry Firearms in Massachusetts. If you have a LTC and your convicted of a drug crime, your LTC will be automatically revoked.

A Massachusetts drug conviction is also a disqualifier for a Firearms Identification Card for a period of five years after the final date of the conviction’s termination (which means the actual conviction date, suspended sentence term, release from incarceration, or discharge from probation, parole, or court-ordered supervision, whichever of these events is latest.) The FID card will allow the holder to purchase and lawfully possess rifles and shotguns, but not handguns.

If the drug conviction is for a charge was a crime of violence, as defined by G.L. c. 140 § 121 or an offense which involves trafficking of weapons or drugs, the defendant will have a mandatory and lifetime prohibition which will prevent the issuance of any firearms license and the purchasing of any firearms.

In addition to the loss or denial of firearms licenses, a drug conviction will also trigger the automatic suspension of your Massachusetts Driver’s License if you are licensed here or if you are licensed to drive by another state, a Massachusetts drug conviction will result in the suspension of your right to operate in Massachusetts for a period of at least one and up to five years. Fortunately, it may be possible to obtain a hardship driver’s, but not firearms, license.

If a drug offense is interfering with the exercise of your 2nd Amendment rights in Massachusetts, contact Attorney Jesse C. Cohen for assistance.

 

Mass. Firearms License Revocation Constitutional

Stacey Hightower was a Boston Police officer who had her Class A License to Carry Firearms revoked after her resignation, allegedly due to her inaccurately completing her LTC Application.  She never filed a Petition for Judicial Review or otherwise appealed the revocation through customary channels. Instead, Hightower filed a federal lawsuit against the City of Boston and its police commissioner, wherein she claimed that the licensing process violated her rights under the Second and Fourteenth Amendments to the United States Constitution. See Hightower v. City of Boston, 822 F. Supp. 2d 38, D.Mass.,2011

The Court ultimately held that certain limits on firearm ownership do not violate the Second Amendment, as long as the government can show a substantial relationship between the firearms restriction and an important governmental interest. Stated more succinctly, the Second Amendment does not allow completely unrestricted and unlimited firearms ownership. It does not trump all gun control laws. Instead, it prohibits unreasonable restrictions which are unconnected with substantial governmental interests. Laws which prohibit certain classes of people, such as convicted felons, from possessing firearms are constitutional.  Likewise, laws which prohibit the possession of certain types of weapons are likely to withstand judicial scrutiny.

However, in the Hightower case, it bears noting that the U.S. District Court for the First District of Massachusetts rightfully recognized that, “[t]he Second Amendment applies to state and local regulation of firearms” and that “the possession of operative firearms for use in defense of the home constitutes the ‘core’ of the Second Amendment.”

The Court concluded that the revocation of Hightower’s LTC on the basis of false answer she supplied in connection with her LTC renewal application was a legitimate basis for revoking the license and such a revocation does not violate the Second Amendment. Obtaining accurate information from those applying for Unrestricted Class A Licenses to Carry Firearms is an important governmental objective and it is, therefore, not unconstitutional to revoke a license which was issued based on false information.

This case illustrates the importance of having a Massachusetts Firearms Lawyer assist you in the preparation of your LTC Application.

H.R. 822: National Right to Carry Reciprocity Act

 

Lawmakers are considering an important bill which, if enacted, will allow citizens to exercise their Second Amendment Rights nationwide. H.R. 822, the National Right to Carry Reciprocity Act of 2011, was introduced this year in the Senate as S. 2188, the “National Right-to-Carry Reciprocity Act of 2012. The Bill requires all states to honor licenses to carry firearms issued by other states. The House version passed in the House last year with, by a vote of 272 in favor and 154 opposed. Critics of the Bill believe that individual states should decide for themselves who can carry a firearm and who cannot. However, since the 2nd Amendment clearly applies to the states, this argument is not very convincing.

Currently, some states have agreements to recognize firearms licenses issued by other states. This is why Utah and Florida Concealed Weapons Permits are so popular. Florida and Utah CCW permits are recognized by multiple states, so they allow holders to carry firearms in a variety of states without having to obtain licenses in those states. The Philadelphia Police Commissioner has complained that a person who has been denied a Pennsylvania Concealed Carry Permit could use the National Right to Carry Act to circumvent the denial by obtaining a Non-Resident Florida CCW permit, which would allow him to carry firearms in Pennsylvania. Another complaint he had was that there is no provision in Bill for establishing a nationwide database of license holders. This means that police officers would have difficulty checking on the validity of out of state firearms licenses, especially after hours.

Critics of the Legislation overlook the fact that driver’s license are reciprocal, meaning that a person on a cross country trip does not need to obtain a driver’s license in each state that he or she drives through. Instead, he can rely on the driver’s license issued by his home state to drive in other states, so long as his right to drive is not suspended or revoked in the other states. The same principle should apply to licenses to carry firearms.

Virginia LTC Process Criticized

Today the Boston Herald reported how the State of Virginia accepts on-line classes for non-resident firearms permits. The article implies that applicants for these permits are skirting the requirements for residents, which require that the License to Carry Applicant complete a “live fire” course. What the article fails to recognize is that those who are applying for non-resident licenses to carry firearms are generally proficient with firearms and licensed in their home state. Thus, they’ve already demonstrated that they are suitable to be licensed and carry firearms, as they have met the qualifications and requirements of their home state.

In Massachusetts, applicants must have taken and passed a basic firearms safety course (BFS), which is provided by a licensed instructor, using an approved curriculum.  In addition to this statewide requirement, some Massachusetts cities and Towns, such as Boston, require that the LTC applicant demonstrate his or her proficiency by passing a live “qualification course,” which is designed to test the LTC applicant’s safe handling abilities and basic accuracy.

Incidentally, the State of Massachusetts should streamline the firearms licensing process by using an on-line statewide application which could be completed via a secure website and payments could be made by credit card on-line. Once the application is submitted, the applicant could present himself or herself to his or her local police department for fingerprinting, interviews, etc… This would streamline the licensing process and hopefully reduce the “turnaround” time when it comes to processing applications.

Sealed Records & Mass. Firearms Licensing

There was considerable controversy regarding the use of a Sealed Juvenile Record to disqualify someone from being issued a License to Carry Firearms in Massachusetts.  This controversy ended on May 4, 2012, with the enactment of CORI reform. This legislation made it possible to seal most misdemeanor offenses after a 5 year waiting period and most felony offenses after a 10 year waiting period.

In addition to making it easier to seal records, the new Massachusetts sealed records law change the way that waiting periods are calculated. Previously, they were calculated from the offender’s supervision (e.g. probation or parole) termination date. Now, the waiting period commences from the date the offender was convicted or released from incarceration, whichever is later. However, each and every time a person is convicted of new offense or incarcerated, the sealing clock resets.  The waiting period to seal most juvenile offenses is 3 years.

The downside of the new Massachusetts Criminal Record Offender Information (CORI) law is that law enforcement now has statutory access to sealed records, both adult and juvenile. A licensing authority can use the contents of these records to determine that a firearms license applicant is unsuitable to hold such a license or to determine that the applicant is statutorily disqualified from holding a License to Carry Firearms. In such a case, where a person is statutorily disqualified from being issued or renewing a LTC, other remedies exist such as vacating the disqualifying conviction through a Motion for New Trial or obtaining a pardon. Attorney Jesse Cohen’s office is thoroughly experienced with respect to both of these remedies.

If you have an issue with your CORI or if you have been denied a License to Carry Firearms in Massachusetts, contact Attorney Jesse C. Cohen at 508-656-0562 for a free consultation and review of your denial. You may be able to get a license to carry, even though you have been initially denied.

 

Be Careful when Completing your Massachusetts LTC Application

Filling out your License to Carry Firearms Application completely, truthfully, and accurately is absolutely critical. Providing false, inaccurate, or incomplete answers can not only result in the denial of a License to Carry Firearms, but also the filing of criminal charges against you. It is absolutely imperative that you answer each question very carefully, especially those questions regarding your criminal history, if any.

When you submit your Application for a License to Carry Firearms, the licensing authority will run a series of computer checks on you and compare the results of these searches with the information which you provide. If you fail to make full and accurate disclosures, you’re making it very easy for the firearms licensing officer to deny you.

You should obtain a copy of your driver history and criminal record, if any, so that you can complete your Massachusetts LTC Application as truthfully and as fully as possible. The Mass. LTC Application leaves little room for “innocent mistakes” or “minor errors.” It contains a warning that it is signed under the penalties and pains of perjury as well as a notice that any false or incomplete answers can be used to deny you.

In my busy law practice, I have personally seen cases where LTC applicants leave out information due to a legitimate lack of memory. An innocent memory lapse such as this could result in the denial of your application. Although this denial can be appealed to the District Court, judges are generally no sympathetic in such situations.

The Massachusetts LTC licensing process places the burden on the applicant to exercise “due diligence” in completing the firearms license application and wrong answers can be used against you.

Fortunately, my office assists Massachusetts LTC applicants with the preparation of their applications, so as to maximize chances of getting approved for a License to Carry.

Driver Beware: Crossing Border Could Make you a Felon

All firearm enthusiasts in Massachusetts should be aware of the state assault weapons ban, M.G.L. 140 § 131M, that was enacted in 1998.  However, it is imperative that non-residents be aware of said prohibitions as well.  Non-residents, while in the Commonwealth, must also comply with § 131M – even those possessing non-resident LTC’s.

In all of the states that border Massachusetts, with the exception of New York, there are no laws prohibiting the possession of post-ban magazines with a capacity of more than 10 rounds of ammunition.  Though the federal ban was lifted in 2004, Massachusetts’ version of the assault weapons ban is still in effect today.  Therefore, while certain weapons and feeding devices may be perfectly legal to own and posses in your state, they are strictly prohibited in the Commonwealth.  Violation of such an offense is a felony.

M.G.L. 140 § 131M states, “No person shall sell, offer for sale, transfer or possess an assault weapon or a large capacity feeding device that was not otherwise lawfully possessed on September 13, 1994. Whoever not being licensed under the provisions of section 122 violates the provisions of this section shall be punished, for a first offense, by a fine of not less than $1,000 nor more than $10,000 or by imprisonment for not less than one year nor more than ten years, or by both such fine and imprisonment, and for a second offense, by a fine of not less than $5,000 nor more than $15,000 or by imprisonment for not less than five years nor more than 15 years, or by both such fine and imprisonment. The provisions of this section shall not apply to: (i) the possession by a law enforcement officer for purposes of law enforcement; or (ii) the possession by an individual who is retired from service with a law enforcement agency and is not otherwise prohibited from receiving such a weapon or feeding device from such agency upon retirement.”   supplied.

 M.G.L. 140 § 121 defines an assault weapon the same as the former federal statute, 18 U.S.C. 921(a)(30), which reads as follows:

 a semiautomatic rifle that has an ability to accept a detachable magazine and has at least 2 of–

(i) a folding or telescoping stock;

(ii) a pistol grip that protrudes conspicuously beneath the action of the weapon;

(iii) a bayonet mount;

(iv) a flash suppressor or threaded barrel designed to accommodate a flash suppressor; and

(v) a grenade launcher;

 a semiautomatic pistol that has an ability to accept a detachable magazine and has at least 2 of–

(i) an ammunition magazine that attaches to the pistol outside of the pistol grip;

(ii) a threaded barrel capable of accepting a barrel extender, flash suppressor, forward handgrip, or silencer;

(iii) a shroud that is attached to, or partially or completely encircles, the barrel and that permits the shooter to hold the firearm with the nontrigger hand without being burned;

(iv) a manufactured weight of 50 ounces or more when the pistol is unloaded; and

(v) a semiautomatic version of an automatic firearm; and

             a semiautomatic shotgun that has at least 2 of–

(i) a folding or telescoping stock;

(ii) a pistol grip that protrudes conspicuously beneath the action of the weapon;

(iii) a fixed magazine capacity in excess of 5 rounds; and

(iv) an ability to accept a detachable magazine.

 M.G.L. 140 § 121 defines a large capacity feeding device as “a fixed or detachable magazine, box, drum, feed strip or similar device capable of accepting, or that can be readily converted to accept, more than ten rounds of ammunition or more than five shotgun shells.”   However, this does not include an attached tubular device that operates only with .22 caliber ammunition.

 In short, before bringing any weapons or feeding devices into Massachusetts, one needs to ensure they are in compliance with the non-resident conditions for possession of firearms, or maintain a non-resident LTC.  Still further, one must make sure said weapons and feeding devices comply with the requirements set forth above.  Most commonly, this means no post-ban (manufactured after Sept. 13, 1994):

  • AR-15’s with any “evil feature” in addition to a pistol grip
  • Magazines that hold more than 10 rounds of ammunition
  • Magazines that hold more than 5 shotgun shells

These, among others, can never be possessed in this state, with the exception to law enforcement officers for purposes of law enforcement.  As stated above, a violation of this statute is a felony.  Thus, a conviction would not only mean the penalties outlined in the statute, but also a federal lifetime ban from possessing any firearm, in accordance with 18 U.S.C. 922(g).

Colorado Massacre & the Right to Carry

 

The tragic killing of 12 people and the wounding of countless others at a movie theatre in Aurora, by a mass murderer, underscores the importance of the Second Amendment right to carry a firearm for self-defense. Perhaps if one of the moviegoers was armed, the murderer may have been stopped before he killed and wounded so many people.

While gun control advocates might use this tragedy to support anti-gun legislation, the truth is that it underscores the importance of the natural preexisting fundamental protections of the Second Amendment. Commentators will ask, retrospectively, what if anything could have been done to prevent the massacre. One answer to that is that the loss of life may have been minimized or prevented by the intervention a lawfully armed citizen.

Under Massachusetts law, a person who is applying for a license to carry a firearm, which some refer to as a pistol permit or concealed weapons permit, must demonstrate that he or she has a “proper purpose” or need to carry a firearm. One such reason might be for the protection of the applicant, his or her family, and the general public from mass murders and shooters such as the person who took the lives of twelve people at a movie theatre. Unfortunately, violence in society is all too commonplace and those who want to protect themselves should have a legal means to do so.

Answering LTC Application Question 10

Conducting some basic “due diligence” prior to applying for a License to Carry Firearms in Massachusetts can make the difference between winning and losing. Indeed, Massachusetts Firearms Attorney Jesse C. Cohen has seen a large number of LTC denials which could have easily been avoided by following some simple steps.

Question 10 of the Mass. LTC Application will ask:

Have you ever appeared in any court as a defendant for any criminal offense (excluding non-criminal traffic offenses)?.

Answering this question untruthfully can result in the denial of your license for providing false information. You can avoid this trap by checking your criminal record ahead of time. However, you must keep in mind that the record which you receive will not contain sealed records, which can be used to deny your application. One of the best ways to avoid answering question 10 incorrectly is to consult with a firearms lawyer before you apply. After a simple consultation and review of your situation, you will be able to answer the question correctly and avoid a denial for giving false information.

Another potential problem involves providing proof of residency or that you have a business located in the jurisdiction where you are applying. The police chief or licensing officer who processes your application is entitled to investigate the information provided to determine whether your are truly a resident or have a place of business where you are applying. Licensing officials conduct “residency” or “place of business” investigations because some applicants make false claim to have residency or a place of businesses in communities where the licensing officer is known as lenient, so as to increase their chances of success. Also, some police departments will not issue unrestricted licenses which allow individuals to carry for “all lawful purposes,” while others will routinely issue licenses of this type. These differences in firearms licensing policies have motivated some pistol permit applicants to apply in jurisdictions other than where the live or have a business. Licensing officials are aware of this and they will check databases such as the Registry of Motor Vehicles to verity information.

Answering each LTC application question truthfully and carefully is critical when it comes to getting a firearms permit in Massachusetts, especially in communities such as Boston and Brookline, were applications are closely scrutinized.