Restraining Orders & Firearms Licenses

209A_SUSPENDEDIf you have been served with an abuse prevention or restraining order, you will likely be required to surrender your Firearms Identification Card or your License to Carry Firearms. You will also likely be required to turn over your handguns, rifles, shotguns, and ammunition to your local police department.

Our abuse prevention statutes protect “family or household members.” The Legislature intended to address violence stemming from relationships which may not be considered traditional ‘family or household’ associations. Individuals who are or were involved in a “substantive dating or relationship” are included within this definition G.L .c. 209A § 1(e). The plaintiff bears the burden of proving by a preponderance of the evidence that the parties were engaged in a ‘substantive dating relationship’ within the meaning of G.L. c. 209A, §  1 and the Court must satisfy itself that the relationship between the parties is something significantly more than having casually dated.

Abuse prevention orders which can have serious implications, especially if the defendant is a police officer, armed security guard, or otherwise needs to carry a firearm for work or other important purposes. Therefore, the judge must focus on whether serious physical harm is imminent and should not issue a c. 209A order on the theory that it will do no harm.

G.L. c. 209A restraining orders and abuse prevention orders contain what is known as a “suspension and surrender” provision, under which the defendant’s access to firearms and ammunition is terminated. The issuance of these types of court orders may also independently trigger the suspension or revocation of your firearms license, based on suitability concerns. If your FID or LTC is suspended or revoked, you cannot possess guns or ammunition until your license is reinstated.

You have the legal right to contest the issuance of a restraining or abuse prevention order by appealing it in the court where it was issued. You also have the right to appeal the suspension or revocation of your Massachusetts firearms license. The law gives you the right to be represented by a lawyer at any hearing regarding both the issuance of an abuse prevention order and the suspension of your firearms permit.  You right to challenge restraining orders and the loss of your firearms is limited. If you fail to preserve your appellate rights in a timely manner, you may lose your right to appeal.

Firearms Licensing and “Medical Marijuana”

My office has received numerous inquiries regarding whether the holder of a Medical Marijuana Card issued by the Massachusetts Department of Public Health can be issued a License to Carry Firearms. As explained below, the answer is yes. Chapter 369 of the Acts of 2012, An Act for the Humanitarian Medical Use of Marijuana,  states that “any person meeting the requirements under this law shall not be penalized under Massachusetts law in any manner, or denied any right or privilege, for such actions.”

Under federal law, the possession of marijuana is still illegal and there is no exception for “medical marijuana.” Also, when you purchase a firearm, rifle, or shotgun, you will be required to complete a federal form 4473 which asks, “Are you an unlawful user of, or addicted to, marijuana or any depressant, stimulant, narcotic drug, or any other controlled substance?” Under state law, if you have a valid DPH medical marijuana card, you are not considered an “unlawful user” of marijuana. However, under federal law there is no such thing as a “lawful user” of marijuana, which is classified as Schedule 1 controlled substance. 18 USC 44 922 (g)(3) prohibits unlawful marijuana users and addicts from purchasing or possessing firearms, even if the individual has a LTC.

Although Massachusetts law imposes no penalties for the acquisition, cultivation, possession, processing, transfer, transportation, sale, distribution of so-called medical marijuana, because of the above-listed federal prohibition, medical marijuana users should proceed with caution.

90 Days to Appeal a Suspension, Revocation, or Denial

If your application for a Firearms Identification Card or License to Carry Firearms has been denied, you only have ninety (90) days from receipt of the denial letter to appeal to your local District Court. Nothing stops that 90 day clock from running and if you file your appeal even one day late, the District Court will not have jurisdiction to hear your case.

This 90 day filing deadline is absolute and it applies whenever an application is denied or whenever a FID or LTC is suspended or revoked. A Police Chief or Firearms Licensing Official cannot give you any extension regarding this 90 day filing time limit and the Court has no jurisdiction to hear an appeal that is filed late.

The 90 day filing requirement is statutory, meaning that it is absolute. If the deadline falls on a weekend, holiday, or a day when the courthouse is closed, you must file prior to the deadline when the District Court is open.

If you have missed the filing deadline, it may be possible to file a new application and appeal the denial of the new application within the statutory 90 day timeframe. However, some licensing officials have taken the position that it is improper to file a new application to get around the 90 day rule and at least one Massachusetts District Court has agreed and ruled that a new application cannot be filed until the term of a license that would have been issued as a result of the old application would have expired.

A licensing authority cannot “sit” on or otherwise refuse to process an application for a firearms license. There are statutory time frames within which a Police Chief or Licensing Officer must either approve or deny an application. In cases where a licensing official fails to act on an application, the 90 day clock begins to run when the time limit in which the licensing authority is required to respond to the applicant expires.

New Disqualifier for MA Firearms Licenses

The recently amended Massachusetts Firearms Law contains a new statute, G.L. c. 265, § 13N, which disqualifies a person from holding a firearms license upon a conviction for any misdemeanor offense which involves physical force or the threatened use of a deadly weapon when the actual or intended victim was a family or household member, as defined by G.L. c. 209A, § 1, of the person convicted.

For example, those convicted of Assault or Assault and Battery under G.L. c. 265, § 13A, involving a family or household member, and Domestic Assault or Assault and Battery under G.L. c. 265, § 13M will be statutorily disqualified from holding a firearms license or possessing firearms under Massachusetts law.

Judges will be required to make determinations about the relationship of the defendant and victim or intended victim for qualifying offenses, whether the conviction is entered as a result of a trial, or a plea, or conviction entered after a probation violation. As part of the plea procedure in qualifying cases, defendants must be advised in open court that “conviction on this offense, if it involves domestic abuse, may lead to disqualification from possession of firearms.”

Reports of convictions of qualifying offenses will be forwarded to the Department of Criminal Justice Information System for inclusion in the National Instant Criminal Background Check (NICS) System.

Firearms Identification Cards

Recently enacted legislation has expanded the eligibility disqualifications for Massachusetts Firearms Identification Cards and it now allows licensing authorities to petition district courts to deny, suspend, or revoke firearms identification cards on the grounds of unsuitability. Prior to this legislation, licensing authorities were required to issue FID cards unless the applicant was statutorily prohibited. Under the new statute, police may now file a petition in the District Court and seek a judicial determination to deny or revoke an FID where the applicant is “unsuitable,” meaning that the FID applicant or cardholder has exhibited or engaged in behavior to suggest that he or she either is a risk to public safety or could potentially create such a risk.

The determination of unsuitability must be based on a preponderance of the evidence. Under this standard, reliable evidence must demonstrate that the FID applicant “has exhibited or engaged in behavior to suggest the applicant could potentially create a risk to public safety.” The licensing authority has the burden of proof in these FID denial cases. If a district court judge decides that the FID applicant is unsuitable, he or she is required to provide the applicant with written notification of the specific reasons for the unsuitability determination.

There are two types of unsuitability petitions. The first type is a petition to deny an application for or renewal of an FID. For these petitions, once the petition is filed with the court, the filing acts to stay the application or renewal process pending judicial determination. When this petition is filed, the law requires that the matter be heard and decided by a judge within 90 days of the filing date.

If the petition is allowed and the FID ultimately denied by the court, the judge must issue written findings regarding the respondent’s unsuitability within 90 days of the filing. The standard for any determination of unsuitability is by a preponderance of the evidence. If the matter is not heard and findings are not made within 90 days, by default the respondent’s FID issues.

The second type of unsuitability petition is to suspend or revoke an active FID. When the licensing authority files this type of petition, the respondent’s FID is automatically suspended or revoked upon filing. An initial prima facie judicial determination must then be made that the petition sufficiently alleges the respondent is unsuitable. This initial determination must be made within 15 days (not business days) of the petition filing date.

If the court finds the petition sufficient, then the petition must be heard and decided within 75 days of the initial determination. As is true with the first type of unsuitability petition, if the petition is allowed and the FID ultimately denied by the court, the judge must issue written findings regarding the applicant’s unsuitability, this time within 75 days of the initial determination. The standard for the determination of unsuitability is by a preponderance of the evidence. If the matter is not heard and findings are not made within 75 days of the initial determination, by default the respondent’s FID will be reinstated.

If you have been denied a Massachusetts Firearms Identification Card or if your FID has been suspended or revoked, I invite you to contact my office for a free consultation a review of your situation.

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.

 

90 Days to Appeal LTC & FID Suspension, Revocation, or Denial

If your Massachusetts License to Carry Firearms or Firearms Identification Card has been suspended or revoked, or you were denied such a license, you have ninety (90) days to appeal the adverse action in the District Court having jurisdiction over the Licensing Authority, which is usually the city or town where you reside.

Sometimes Petitions for Judicial Review are not filed in a timely manner, meaning  that they are not filed within the statutory 90 day appeal period. A late filing of a firearms license appeal is fatal to the case and the court has no discretion to grant an extension.  An untimely filing divests the court of subject matter jurisdiction, which means that any order would be unenforceable and the court would not have the power to hear and decide the appeal.

Some aggrieved petitioners and firearms licensing lawyers have attempted to circumvent the 90 day time period by having the petitioner file a new License to Carry Firearms (LTC) or Firearms Identification Card (FID) application, with the goal being to reset the “90 day clock” and allow for the filing of a new appeal.

In a recent case out of Framingham District Court, a license holder failed to file a Petition for Judicial Review within within 90 days of the revocation of his LTC. He applied for a new license and the court ruled as follows: “the Plaintiffs appeal is untimely and the court is without jurisdiction to hear it. The statute provides for no exceptions.” The court further ruled, “It is neither logical or reasonable for an individual who has failed to appeal the denial within the required 90 days to be able to circumvent that requirement by applying for a ‘new’ license prior to the expiration of the period for which his revoked license was to be in effect. This ruling demonstrates the importance of complying with the 90 day filing requirement.

Interestingly, the Judge allowed the petitioner to apply for a new License to Carry Firearms upon the expiration of the prior license, which was revoked. Thus, the court suggests that the LTC revocation is only in effect during the term of the license and thereafter a new application can be filed.

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.

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.

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.