Carrying a Firearm While Intoxicated: Not Guilty

On August 24th, 2012. Worcester Police Officers were dispatched to a bar to assist State police with a investigation of a person with a gun. Unidentified females stated that there was  a white male wearing a black shirt and khaki shorts who was carrying a gun. Officers approached the male matching the caller’s description and they asked if he was carrying a firearm to which he responded “yes.” At this point, police handcuffed the person and asked if he had a license to carry firearms and he responded “yes”. In his right front pocket he had a money clip containing a valid Class A Massachusetts License to Carry Firearms.

The male had a loaded Smith and Wesson M&P .45 in a holster on his belt. Police determined that he had been consuming alcoholic beverages and the man admitted that he had consumed drinks at two other locations. The reporting police officer noted that he could smell the odor of alcoholic beverages coming from his breath. He confiscated the firearm and charged the defendant with Carrying a firearm under the influence of alcohol in violation of G.L. c. 269 § 10H. A violation of this law carries a sentence of incarceration of up to 2½ years in a jail or house of correction or a fine of not more than $5,000 or both.

Fortunately, the defendant in this case hired the right lawyer: Attorney Paul B. Watkins. Another lawyer suggested that the client “plead out.” However, Attorney Watkins took the case to trial and he achieved a not guilty verdict. No jail, no fines, and no criminal record.

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.

The Mass. Constitution & Firearms Licensing

The Massachusetts State Constitution, which pre-dates the United States Constitution, recognizes our right to bear arms. Specifically, Article XVII of the 1780 Massachusetts Declaration of Rights states, “[t]he people have a right to keep and to bear arms for the common defence . . . and the military power shall al-ways be held in an exact subordination to the civil authority, and be governed by it.” The Second Amendment to the U.S. Constitution is, of course, cited as the primary constitutional authority for an individual’s right to carry and possess firearms, especially in the wake of Heller & McDonald v. City of Chicago, which make it clear that the right to possess firearms is an individual rather than a collective right. But wait, there’s more! Our Declaration of Rights may go even further than the 2nd Amendment.

It has been long held that the Massachusetts State Constitution provides more rights to Massachusetts citizens than its federal counterpart. For example, the protection against self-incrimination found in Article 12 of the Massachusetts Declaration of Rights provides more stringent protections for invoking the right to silence than does the 5th Amendment. Commonwealth v. Clarke, 461 Mass. 336, 346–351, (2012) . Likewise, Article 14 of our State Constitution affords us more protections against unreasonable searches and seizures than does the 4th Amendment. Commonwealth v. Upton, 394 Mass. 363 (1985).

Based on the aforementioned legal principles, it stands to reason to that the Massachusetts Declaration of Rights may provide us with more protection than the 2nd Amendment to the United States Constitution, when it comes to firearms rights. Under this standard, certain restrictions, such as prohibiting felons and intoxicated citizens from possessing firearms are likely to be upheld. However, arbitrary and capricious License to Carry denials based on vague and ambiguous “suitability” determinations many not be constitutional. Likewise, the requirement that an applicant for a License to Carry demonstrate a “good reason to fear injury to his person or property,” might violate his or her “right to keep and to bear arms” under Article XVII of the Declaration of rights. This is an area of law which warrants further exploration and advancement.

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Our goal is to become the most comprehensive and authorative source for legal news and information regarding laws impacting Massachusetts firearms owners and those who use firearms for sporting, shooting, collecting, hunting, and self-defense.

Lately, there have been many new and exciting developments in laws which regulate gun ownership.  With the Supreme Court’s decision in Heller, gun owners can finally say with authority that the Second Amendment guarantees individual rights to citizens and not only “a well-regulated militia.” Flowing from this seminal case are other state and federal cases.


LTC Constitutional Challenge Fails

On January 23, 2009, around 1:40 A. M., the Fitchburg police department received a 911 call in which the caller reported seeing a person threaten a patron with a silver handgun at the Wine Cellar, a local bar. The caller also stated that the person with the handgun was a black male who got into a white Pontiac, with a partial plate number of “F2D.” Trooper Doyle of the Massachusetts State Police stopped the vehicle and spoke with the operator, Stacy Ford. Also present in the vehicle were the defendant Rhodes, seated in the driver’s side back seat, codefendant Ford, seated in the front passenger seat, and a fourth individual seated in the rear passenger seat. Officers found a shiny silver handle of a gun on the floor of the front passenger compartment and a white handbag on the floor behind the driver’s seat which contained a handgun with one round in the chamber.

The defendants argued that the licensing statute is facially invalid because it (i) fails to provide guidance in the form of statutory language or regulatory mandates to the decision making authority as to who should be granted a license to carry a handgun, (ii) fails to give notice of what conduct the law proscribes and impermissibly delegates basic policy matter to adjudicators for resolution on an ad hoc basis, (iii) impermissibly delegates legislative authority to the executive branch of government, and (iv) fails to utilize the least restrictive means of regulating the right of the individual to bear arms. The Massachusetts Appeals Court was not persuaded.

The Court ruled that neither defendant applied for, nor was denied a license to carry a firearm, and each was arrested on a public street, in an automobile, and in possession of a loaded handgun. Where a defendant does not assert that he or she either applied for, or was improperly denied, a license to carry a firearm under G.L.c. 140, § 131, and instead violated the law, that defendant is precluded from challenging a conviction of carrying a firearm without a license under the Second or Fourteenth Amendments to the United States Constitution.

Commonwealth v. Rhodes, decided March 27, 2012.

“Parking Lot” Firearms Law Moving Forward in TN

A “compromise” bill which would allow firearms license holders to keep guns in their vehicles parked at their employer’s premises, even though the employer bans guns in the workplace, is making headway in Tennessee. Employers are legally allowed to ban firearms and other weapons in the workplace. However, proponents of the “parking lot” legislation believe that such a ban should not apply to an employee’s privately owned automobile, even though the vehicle is parked in the employer’s parking lot.

In addition to denying gun owners the ability to defend themselves, the “parking lot” prohibition, would also prevent those who are going hunting or target shooting before or after work from doing so, without a trip home to pick up or drop off their guns.

Employers claim that allowing guns in the workplace parking lot is dangerous and it provides a “disgruntled employee” with ready access to a firearm.

If this bill passes, Tennessee will join  Florida, Indiana, Kentucky, Louisiana, Minnesota, Oklahoma, Alaska, Arizona, Georgia, Idaho, Kansas, Michigan, Mississippi, Nebraska, Ohio, and Utah, as a state which prohibits employers from restricting an employee’s ability to carry a firearm to or from work.