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.

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.

New Resident Exemption Now Permits Firearm to be Brought into Massachusetts by Motor Vehicle

 

In Commonwealth v. Smigielski, 82 Mass.App.Ct. 1107 (2012), the defendant was charged with unlawful possession of a firearm in a motor vehicle in violation of G.L. c. 269, § 10(a ), and unlawful possession of ammunition without a firearm identification (FID) card in violation of G.L. c. 269, § 10(h ). The defendant argued that she is exempt under G.L. c. 140 § 129C(j), which provides a sixty-day grace period in which new or returning residents may register certain firearms. The District Court Judge was of the impression that there was no statutory grace period for an individual driving into the State, either with or without an intent to reside.

The defendant testified at trial that she left the State of Texas, packed her belongings in the car, and intended to move to Massachusetts, where her sister resides, to live in Easthampton and find employment. The Appellate Court, in overruling the decision of the District Court stated that “[t]his evidence, if believed, was sufficient to raise the defense.”

In Commonwealth v. Cornelius, 78 Mass.App.Ct. 413, 419–420 (2010), the Court held that § 129C (j ) provides such a grace period to new residents who drive into the State with certain firearms in an automobile.

The firearm exemptions in G.L. c. 269, § 10(a) , are as follows:

(1) being present in or on his residence or place of business; or
(2) having in effect a license to carry firearms issued under section one hundred and thirty-one of chapter one hundred and forty; or
(3) having in effect a license to carry firearms issued under section one hundred and thirty-one F of chapter one hundred and forty; or
(4) having complied with the provisions of sections one hundred and twenty-nine C or one hundred and thirty-one G of chapter one hundred and forty….

Therefore, compliance with G.L. c. 140 § 129C(j), exempts the person from G.L. c. 269, § 10(a).

General Laws c. 140, § 129C, provides, in pertinent part: “No person, other than a licensed dealer or one who has been issued a license to carry a pistol or revolver or an exempt person as hereinafter described, shall own or possess any firearm, rifle, shotgun or ammunition unless he has been issued a firearm identification card by the licensing authority pursuant to the provisions of section one hundred and twenty-nine B.”

 

LTC Application Denied, Appeal Forfieted

Tyrone Calloway, who claimed he was a private investigator, failed to accurately complete his LTC application. Specifically, he answered “no” to “question 10,” which asks if he had ever previously appeared in court as a criminal defendant.

The Quincy, Massachusetts Police Chief denied Calloway’s LTC Application, alleging that he was untruthful in filling out the application. The Quincy Police Department investigated Calloway’s responses and they found that he had actually appeared as a criminal defendant 5 times in Massachusetts and once in New York.

In accordance with G.L. c. 140 § 131, Calloway filed a petition for judicial review in the Quincy District Court. He was not represented by counsel and Judge Coven ruled against Calloway and in favor of the licensing authority. Calloway filed for 4 motions for reconsideration, again without a lawyer, and all of motions were denied.

Calloway tried to appeal in Norfolk Superior Court. However, he made numerous substantive and procedural errors such that he forfeited his right to appeal the District Court’s decision to uphold the License to Carry denial. The Massachusetts Appeals Court ruled that “[a]n action that ends in a final judgment from which no appeal was taken cannot be resurrected by bringing an entirely new (and late) action in the Superior Court-as Calloway sought to do here…”  The Mass. Appeals Court affirmed the Superior Court’s denial of Calloway’s appeal.

The outcome in this case shows how important it is to have legal representation if your License to Carry Firearms Application is denied or your LTC is suspended or revoked. This case also demonstrates the importance of correctly answering “Question 10.”

LTC Not Required for Antique Firearms

Jefferson was a passenger in a motor vehicle which the police stopped for committing a traffic violation in the City of Boston. He was carrying a Harrington & Richardson .32 caliber five-shot revolver. Not having a valid License to Carry, he was charged with carrying a firearm without a license. In Commonwealth v. Jefferson, 461 Mass. 821 (2012), our Supreme Judicial Court observed that a License to Carry Firearms is not required to carry or possess a firearm was manufactured before 1900 and, therefore, the defendant could not be convicted of carrying without a license. The firearm was an “antique firearm,” as defined by G.L. c. 140 § 121 and no LTC was required, because firearms manufactured before 1900 are exempt from the licensing requirements of G.L. c. 140 § 131.

 

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.

Getting a License to Carry

In Massachusetts, a license to carry firearms is required to carry a handgun outside of your home or place of business. For Massachusetts residents, Licenses to Carry Firearms are issued by local police chiefs. You must apply in the city or town where you reside or have a “place of business.”

The process of obtaining a License to Carry Firearms (LTC), which some refer to as a pistol permit or concealed weapons permit (CWP), begins with the submission of an application to the local chief of police or his or her designee.

Proof of completion of a Basic Firearms Safety Course (BFS) is required for all first-time applications. The purpose of this course is to insure that the applicant has sufficient knowledge of firearms safety, so that he or she can carry and possess firearms in a safe manner.

Upon receipt of your License to Carry Application, the licensing officer will conduct a computerized background investigation which will include a check of your local, state, and federal criminal record as well as a check with the Massachusetts Department of Mental Health, to see if you have been committed for mental illness. The licensing officer may also check to see if you have been committed for alcoholism. The investigation of your application will undoubtedly also include a local check of the police department’s “in-house” records. Police reports which do not result in charges or convictions can be used to deny your application.

Incident to your application, you will be fingerprinted and these prints will be searched against state and federal law enforcement databases to see if you have been arrested. This part of the process is designed to “screen out” those who may have given false names or other information.

If the licensing authority identifies any statutory disqualifers, such as restraining orders, felony or serious misdemeanor convictions, or other mandatory “show stoppers,” you will be denied a firearms license. Incident to the processing of your application for a firearms license, the Firearms Records Bureau of the Department of Criminal Justice Information Systems, (DCJIS), which was formerly known as the Criminal History Systems Board, will check with the Office of the Commissioner of Probation to see if you have any sealed records on file. If you have a sealed record, adult or juvenile, which contains statutory disqualifying offenses, your license will be denied.

Assuming that there is nothing which would disqualify you from being issued a license to carry firearms in Massachusetts, the next step is for the licensing authority to assess your “suitability” to possess a firearms license. The law affords police chiefs and licensing officials wide latitude and discretion when it comes to deciding who gets a License to Carry and who does not. The burden is on you, as the applicant, to prove that you are a suitable person to hold a LTC.

If the Police Chief or his designee determines that you are not legally prohibited from holding a license to carry firearms and that you are suitable to hold such a license, the next step is for the licensing authority to determine whether or not you have a “proper purpose.” Again, the burden is on you as the applicant to satisfy the police that you have a legitimate reason to carry a gun. Often, licenses are restricted for sporting, hunting, or target shooting. In cases such as these, you cannot carry a gun for personal protection. The basis for these restrictions is that many police chiefs do not want citizens walking around their communities with loaded guns.

In some communities, the police will require you to attend a personal interview with the chief or his licensing officer to help the police better assess your suitability and “proper purpose.” Also, the police sometimes require that you pass a practical examination which may involve shooting, to demonstrate that you can safely handle a firearm.

Once you pass the licensing criteria, and pay the required fee, you will be issued your license to carry firearms.

Massachusetts CORI Reform & Firearms Licensing

The purpose of the sealed records laws, G.L. c. 276 § 100 A-C is to insure that a record of a criminal conviction or juvenile delinquency adjudication, which falls within certain parameters, doesn’t prevent a person from going forward with his or her life with respect to future employment and licensing. However, when it comes to applying for a License to Carry Firearms, the Massachusetts Firearms Records Bureau is given access to sealed records by the Office of the Commissioner of Probation, which would report whether a license to carry applicant has a sealed record with disqualifying convictions.

Courts have made it clear that an adult sealed record can be considered for firearms licensing purposes. However, when it comes to sealed juvenile records, the statute severely limits their access and there was no statutory provision which allowed access for firearms licensing. Unfortunately for Massachusetts License to Carry applicants, all that changed on May 4, 2012, when the Criminal Offender Records & Information (CORI) reform law was implemented.

Under the new Massachusetts CORI law, law enforcement agencies are now granted access to sealed records, including sealed juvenile records. There is now a statutory basis for the use of a sealed juvenile record to deny the issuance and/or renewal of a Massachusetts License to Carry Firearms, based on the contents of a sealed juvenile record, no matter how long ago the offense was committed and regardless of the applicant’s age when he or she committed the offense. Further, these records can be used not only to disqualify someone from holding a firearms license, but also to determine whether the applicant is a “suitable person.” The CORI reform law was touted as being a big step forward for offenders. However, it seems to be a giant step backwards for those with sealed juvenile records who are seeing to exercise their 2nd Amendment rights.