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.

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.”

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).

CWOFs & Massachusetts Firearms Licensing

 

There is considerable confusion regarding whether a criminal case which was continued without a finding can be used to deny issuance of a license to carry firearms in Massachusetts. Some licensing authorities mistakenly believe that a charge which was resolved by a CWOF counts as a conviction. While the facts which underlie a CWOF might be able to be used to show that an applicant is not a suitable person to hold a license to carry firearms, the disposition itself does not render an applicant statutorily disqualified from being issued a LTC. Such is the case because nowhere in the definition of “conviction,” which is set forth in G.L. c. 140 § 121, is there any mention of a case which was continued without a finding (CWOF’ed.) Furthermore, an admission to sufficient facts followed by a continuance without a finding does not constitute substantial evidence that the underlying offense occurred. For example, in Wardell v. Director of Div. of Empl. Sec., 397 Mass. 433, 436-37 (1986), the Supreme Judicial Court held that

An admission to sufficient facts, absent a subsequent finding of guilt, does not constitute substantial evidence from which a finder of fact in a collateral civil proceeding can determine that the alleged misconduct has indeed occurred. Factors other than consciousness of guilt – including expedience or avoidance of publicity – may motivate a defendant to admit to sufficient facts in exchange for a continuance and eventual dismissal. Criminal charges not resulting in conviction do not provide adequate or reliable evidence that the alleged crime was committed.

See Fire Chief of East Bridgewater v. Plymouth Co. Ret. Bd., 47 Mass. App. Ct. 66, 71 N13 (1999), citing Commonwealth v. Jackson, 45 Mass. App. Ct. 666 (1998). (Admission not akin to a guilty plea). See also Burns v. Commonwealth, 430 Mass. 444, 449-451 (1999) (State Police trial board’s discipline based on officer’s admission to sufficient facts and resulting CWOF on the underlying charges was reversed as legal error); Santos v. Director of Div. of Empl. Sec., 398 Mass. 471, 474 (1986) (“The record reflects that the plaintiff claimed he was innocent; for all that is shown in the record, he may have admitted to sufficient facts to avoid the expense, publicity, and notoriety which a full trial might engender.”)

Accordingly, a CWOF is not a conviction for Massachusetts firearms licensing purposes and there are many legitimate reasons why a License to Carry Applicant may have agreed to a CWOF as a sensible means to dispose of a criminal charge.

 

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.

 

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.