Boston Globe: SJC state law requiring trigger locks on firearms

[n1oty]

How so?



No different than a lot of other laws. There are many laws that are prosecuted differently from County to County depending on the DA's office.

How so? GSG has already offered compelling examples where CHILDREN used accessible firearms to rescue themselves and/or their families, weapons that would not have saved them if they were locked up and inaccessible. On that basis alone, the reasons for the Commonwealth's storage laws have no basis in reality. There are countless examples across this country of similar episodes.

Your last comment is very troubling to me. It seems to indicate that there is a defacto "unequal" protection under the law by virtue of selective enforcement by whim on a county by county basis. Worse, from your tone, it appears that you condone such selective enforcement. Please tell me I am mistaken.

 

[GSG]

Your last comment is very troubling to me. It seems to indicate that there is a defacto "unequal" protection under the law by virtue of selective enforcement by whim on a county by county basis. Worse, from your tone, it appears that you condone such selective enforcement. Please tell me I am mistaken.

While I don't think I agree with HalfCocked on the safe storage subject, I think what he's saying is that every DA prosecutes with different agendas and different budgets. I also don't think he's condoning it.

I also used the word "think" 3 times, and I've been up all night...this might be leading me astray. I'm sure he'll chime in though.

 

[n1oty]

While I don't think I agree with HalfCocked on the safe storage subject, I think what he's saying is that every DA prosecutes with different agendas and different budgets. I also don't think he's condoning it.

I also used the word "think" 3 times, and I've been up all night...this might be leading me astray. I'm sure he'll chime in though.

Which is why I responded as I did, to enable him to more fully explain his rationale. I realize that online posts, without the benefit of visual cues, can easily be misinterpreted. Nevertheless, I am deeply troubled by any District Attorney with an agenda beyond the fairest application of the law. I find it disconcerting that life altering prosecutions may be happening on mere whims and/or a slight change in location within the same state.

 

[lupis42]

Which is why I responded as I did, to enable him to more fully explain his rationale. I realize that online posts, without the benefit of visual cues, can easily be misinterpreted. Nevertheless, I am deeply troubled by any District Attorney with an agenda beyond the fairest application of the law. I find it disconcerting that life altering prosecutions may be happening on mere whims and/or a slight change in location within the same state.

Being reasonable, however, if all DAs did their best to prosecute all laws equally, 'without fear or favor', it would still vary from location to location, because DAs are human, laws are not always clear and straightforward, and until courts have ruled, DAs often have nothing to go on.

Referring to a DAs 'agenda' doesn't have to equate to a strong personal bias either, it may be referring to the attitudes of their superiors, or the specific concerns of their electorate if they are independently elected. The individual criminal, the circumstances of the crime, the budget for collecting evidence, the skill of the DA...

And of course, some DAs are biased, in one way or the other. Some are more inclined to prosecute certain types of malum prohibitum crimes, others recognize those crimes as not particularly harmful in themselves.

 

[GSG]

I am deeply troubled by any District Attorney with an agenda beyond the fairest application of the law. I find it disconcerting that life altering prosecutions may be happening on mere whims and/or a slight change in location within the same state.

Me too.

 

[Half Cocked]

Your last comment is very troubling to me. It seems to indicate that there is a defacto "unequal" protection under the law by virtue of selective enforcement by whim on a county by county basis.

Discretion in the criminal justice system is nothing new whether it is a LEO, DA or Judge. There are some LEO's who will write a ticket for 5 MPH over the limit and others who will not unless it is 20 mph over. There are certain offenses I will not charge people for that others will routinely. There are DA's who will not indict on charges that other DA's routinely indict on. There are judges who will not sentence for certain crimes where other judges will sentence severely. You need not go any further than this thread for an example.... two men with the violation of the same criminal offense..... one DA pushes the case to the SJC... another does not and then explains his reasoning to the press.

Worse, from your tone, it appears that you condone such selective enforcement. Please tell me I am mistaken.

The most powerful tool that I possess is discretion. The most important tool that I possess is my reputation. It is important to know how to properly use both and to never abuse either.

 

[Half Cocked]

While I don't think I agree with HalfCocked on the safe storage subject

What do we not agree on? I think that the storage laws as written.. suck. The issue that I was commenting on was that people were trying to put varying degrees of fault between Runyan and Bolduc based upon the fact that a child actually obtained the gun in the Bolduc case.

My only point was that they are both the same legally based upon the law. There is no element as to whether someone actually accessed the gun.

That is all.

 

[GSG]

My only point was that they are both the same legally based upon the law. There is no element as to whether someone actually accessed the gun.

Gotcha.

 

[1rst pilgrim]

I read this as good news and a good interpretation of the law for the law obiding gun owner using a firearm for protection in his home.

 

[cekim]

I read this as good news and a good interpretation of the law for the law obiding gun owner using a firearm for protection in his home.

Then you misread it.

It was nothing short of a last minute jab that will shortly be overturned by the Supreme Court that relies on bad law and even worse public policy...

 

[GOAL C.M.]

More on Runyan from GOAL Executive Director Jim Wallace.

The other question concerning the Runyan case (COMMONWEALTH vs. Richard RUNYAN SJC-10480) that we got at the GOAL office was did it clarify the storage laws or just OK them? According to the court records: The defendant was charged in the Lowell Division of the District Court Department with storing or keeping a firearm that was not "secured in a locked container or equipped with a tamper-resistant mechanical lock or other safety device, properly engaged so as to render such weapon inoperable by any person other than the owner of other lawfully authorized user," in violation of G.L. c. 140, § 131L (a )

The particular section of law is as follows: Section 131L. (a) It shall be unlawful to store or keep any firearm, rifle or shotgun including, but not limited to, large capacity weapons, or machine gun in any place unless such weapon is secured in a locked container or equipped with a tamper-resistant mechanical lock or other safety device, properly engaged so as to render such weapon inoperable by any person other than the owner or other lawfully authorized user. For purposes of this section, such weapon shall not be deemed stored or kept if carried by or under the control of the owner or other lawfully authorized user.

Before getting into what the Massachusetts Supreme Judicial Court (MassSJC) said about the storage laws, it is important to know exactly what the Supreme Court of the United States said about them in general in the Heller decision. In the holdings in Heller, number 3 clearly stated: “3. The handgun ban and the trigger-lock requirement (as applied to self-defense) violate the Second Amendment.” I don’t think that statement could be any more clear on the federal court’s view on trigger locks. With that knowledge we can now explore the MassSJC ruling in Runyan.

The MassSJC ruling concerning the storage laws starts off by referring to the lower court’s dismissal as “erroneous”. “The judge's second erroneous premise was that the provisions of G.L. c. 140, § 131L (a ), are indistinguishable from those held unconstitutional by the Supreme Court in Heller. General Laws, c. 140, § 131L (a ), provides:”

The term erroneous is bad enough to use at that level of law, but the reason for it was that the MassSJC decided not to actually enforce the Heller ruling itself. Instead the MassSJC decided to come up with their own interpretation based on a comparison of the Massachusetts storage laws and the Washington D.C. code that was challenged in Heller. The following paragraph from the Runyan decision is how the MassSJC explains their opinion that ignores holding number 3 in Heller.

D.C.Code § 7-2507.02 (2008). Under this provision, a person registered to keep a firearm (apart from law enforcement personnel) was prohibited in any circumstance from carrying or keeping a loaded firearm in his or her home. The ordinance prohibited a registered gun owner from keeping even an unloaded firearm in his or her home unless it was disassembled or rendered inoperable by a trigger lock or similar device. The Supreme Court ruled that the District of Columbia's requirement "that firearms in the home be rendered and kept inoperable at all times" made it "impossible for citizens to use them for the core lawful purpose of self-defense and is hence unconstitutional." Heller, supra at 2818. General Law c. 140, § 131L (a ), does not require that firearms in the home be rendered and kept inoperable at all times and does not prohibit a licensed gun owner from carrying a loaded firearm in the home; the statute therefore does not make it impossible for those persons licensed to possess firearms to rely on them for lawful self-defense. [FN7], [FN8]

So the court ignored the actual holdings of Heller and used its own diagnosis of the Massachusetts law versus the D.C. Code. If that were not bad enough, they did so by adding a caveat by means of [FN7]. In this note the MassSJC actually acknowledges that its ruling would probably not stand if they recognized the Second Amendment as a civil right.

FN7. We note that the Court in Heller, supra at 2820, declared that its analysis should not be taken to "suggest the invalidity of laws regulating the storage of firearms to prevent accidents." We do not, however, decide whether the defendant's alleged violation of G.L. c. 140, § 131L (a ), could survive a motion to dismiss if the Second Amendment were made applicable to the States through incorporation under the Fourteenth Amendment's due process clause.

As for clarifying anything regarding the storage laws, the court actually made things more confusing. In a single paragraph of the decision the MassSJC stated several things that have only added to the confusion about when a gun needs to be locked in Massachusetts.

The first was: “Under this provision, an individual with a valid firearms identification card issued under G.L. c. 140, § 129C, is not obliged to secure or render inoperable a firearm while the individual carries it or while it remains otherwise under the individual's control.” Firearm Identification Cards (FID Cards) are not issued under G.L. c. 140, § 129C they are issued under G.L. c. 140, § 129B. Also, FID Card holders cannot possess or carry firearms. Under G.L. c. 140, § 121 a firearm is legally defined as a pistol or revolver neither of which can be owned under and FID Card. These two points already should place doubt as to whether the justices are educated enough on the state’s gun laws to make a ruling on them.

Adding to the confusion is the following statement: “A gun owner may therefore carry or keep a loaded firearm under his or her control in his or her home without securing it with a trigger lock or comparable safety device.” Traditional views of the law have always been that in order for a gun to be under your direct control you must be carrying it in some fashion. This statement seems to say something different as it states “carry or … under his or her control”. This now begs the question when is a gun under your control when you are not carrying it?

That question is even more complicated by the sentence that follows it because it adds the word “immediate”. “The gun owner's obligation to secure the firearm in accordance with the statute arises only when the firearm is stored or otherwise outside the owner's immediate control. [FN6]”

The confusing language of the decision does not favor any reasonable conclusions from the language that was used. In fact the decision has actually muddied the waters even further as to what control means. With all of this confusion in the Runyan ruling, there is still more.
The paragraph in Runyan ruling dealing with “control” referenced footnote number 6, FN6.

FN6. This statutory obligation owed by one who keeps firearms in the home to secure those firearms safely is separate and distinct from the common-law duty of a home owner to ensure that the firearms stored on the property are properly secured when the home owner "allows unsupervised access to that property by a person known by her to have a history of violence and mental instability." Jupin v. Kask, 447 Mass. 141, 143 (2006).

This note basically says that if you allow someone in your home that meets a certain classification, and something happens, you can be exposed to legal action even if you meet the storage law requirements. As with most Massachusetts laws regarding guns, the key to this will be what meets the definition of “history of violence and mental instability”.

Unfortunately the Runyan decision has left us with more questions and certainly more uncertainty about our civil rights.

 

[Baystatesuks]

It's just the SJC clerks having more fun with all gun owners.

In all seriousness, does it surprise anyone that not even the SJC can properly sort out which statute is which? At the very least, the decision should be reconsidered as it refers to incorrect sections of the law. 2 demerits against the clerk who wrote it.

Nonetheless, good luck convincing Gants he got something wrong.

 

[Coyote33]

The other question concerning the Runyan case (COMMONWEALTH vs. Richard RUNYAN SJC-10480) that we got at the GOAL office was did it clarify the storage laws or just OK them? According to the court records: The defendant was charged in the Lowell Division of the District Court Department with storing or keeping a firearm that was not "secured in a locked container or equipped with a tamper-resistant mechanical lock or other safety device, properly engaged so as to render such weapon inoperable by any person other than the owner of other lawfully authorized user," in violation of G.L. c. 140, § 131L (a )...

...
D.C.Code § 7-2507.02 (2008). Under this provision, a person registered to keep a firearm (apart from law enforcement personnel) was prohibited in any circumstance from carrying or keeping a loaded firearm in his or her home. ...

Another one of those pesky exemptions, as discussed in exempt from MA and US laws

 

[GSG]

In all seriousness, does it surprise anyone that not even the SJC can properly sort out which statute is which?

Nope. Check out this SJC ruling, Commonwealth v. Manuel Alvarado (1998):

While a sawed-off shotgun can be lawfully registered in Massachusetts, "its lawful possession is, in ordinary experience, rare indeed,"

MGL 140-121 is clear:

“Sawed-off shotgun”, any weapon made from a shotgun, whether by alteration, modification or otherwise, if such weapon as modified has one or more barrels less than 18 inches in length or as modified has an overall length of less than 26 inches.

If it was originally manufactured with a barrel of less than 18 inches (a short barreled shotgun) then it is legal if all the other hoops have been jumped through WRT Mass. and federal law, but if a longer barrel is cut to be shorter (a sawed off shotgun) then it's illegal.

Somehow the SJC can't seem to read that area of firearms law either.

Another one of those pesky exemptions, as discussed in exempt from MA and US laws

That's an exemption to D.C. law, not Mass. or federal law.

 

[Half Cocked]

Another one of those pesky exemptions, as discussed in exempt from MA and US laws

Yup.... I hate when they hold LEO's to a higher standard......

 

[Kevlar]

Attorney Brenden McMahon may have found a powerful ally in the U.S. Supreme Court, but he wants his Billerica client's gun-ownership case dismissed without the high court's help.

Earlier this month, the state Supreme Judicial Court's ruling in Commonwealth vs. Richard Runyan shot down a Lowell District Court judge's decision to dismiss the Billerica gun case and, in doing so, upheld the constitutionality of the state law that requires gun owners to lock their weapons in their own homes.

It was a case watched closely by gun-control proponents and gun owners' groups. But those two groups are now waiting for the U.S. Supreme Court's pending decision in McDonald vs. Chicago, a case that challenges that city's handgun prohibition, according to Massachusetts Lawyers Weekly.

What gun-control proponents fear -- and gun owners will applaud -- is if the conservative Supreme Court rules that the Second Amendment right to bear arms is applicable to states, it could trigger challenges at the state level from state gun-storage laws to bans on assault rifles.

But while others wait for the Supreme Court's ruling, McMahon is charging forward on behalf of his client, Richard Runyan of Billerica.

"The only way the Runyan case could be directly impacted, meaning dismissed, would be a much clearer statement from the court that a trigger-lock provision is an unreasonable restriction on the right to keep and bear arms," McMahon said. "I do not expect that kind of minutia to be addressed."

Instead, McMahon is firing back at the district-court level. He has filed a motion to suppress that is scheduled for a May 4 hearing in Lowell District Court.

"My basic position is the police, lacking a warrant, had no right to search the home and lacked consent to do so," McMahon said.

http://www.leagle.com/unsecure/news.do?feed=yellowbrix&storyid=143081608.

 

[Coyote33]

In a news blurb I got from GOAL last Friday, there was an article claiming the 2nd Amendment was incorporated for (into?) the states. I have seen mentions of it here and there, and in this thread. I would think this would have a bigger impact here.

Here's the article they sent: http://www.examiner.com/x-7133-Bost...-Court-likely-to-incorporate-Second-Amendment

 

[cekim]

In a news blurb I got from GOAL last Friday, there was an article claiming the 2nd Amendment was incorporated for (into?) the states. I have seen mentions of it here and there, and in this thread. I would think this would have a bigger impact here.

Here's the article they sent: http://www.examiner.com/x-7133-Bost...-Court-likely-to-incorporate-Second-Amendment

Not yet...

Finger crossed...

 

[Sir_Macadoo]

Would storing pistols and long guns in a lockable one of these satisfy?

 

[GOAL C.M.]

Attorney pushes to end Billerica gun-rights case
By Lisa Redmond, [email protected]
Updated: 03/29/2010 06:35:54 AM EDT

LOWELL -- Attorney Brenden McMahon may have found a powerful ally in the U.S. Supreme Court, but he wants his Billerica client's gun-ownership case dismissed without the high court's help.

Earlier this month, the state Supreme Judicial Court's ruling in Commonwealth vs. Richard Runyan shot down a Lowell District Court judge's decision to dismiss the Billerica gun case and, in doing so, upheld the constitutionality of the state law that requires gun owners to lock their weapons in their own homes.

It was a case watched closely by gun-control proponents and gun owners' groups. But those two groups are now waiting for the U.S. Supreme Court's pending decision in McDonald vs. Chicago, a case that challenges that city's handgun prohibition, according to Massachusetts Lawyers Weekly.

What gun-control proponents fear -- and gun owners will applaud -- is if the conservative Supreme Court rules that the Second Amendment right to bear arms is applicable to states, it could trigger challenges at the state level from state gun-storage laws to bans on assault rifles.

But while others wait for the Supreme Court's ruling, McMahon is charging forward on behalf of his client, Richard Runyan of Billerica.

"The only way the Runyan case could be directly impacted, meaning dismissed, would be a much clearer statement from the court that a trigger-lock provision is an unreasonable restriction on the right to keep and bear arms," McMahon said. "I do not expect that
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kind of minutia to be addressed."

Instead, McMahon is firing back at the district-court level. He has filed a motion to suppress that is scheduled for a May 4 hearing in Lowell District Court.

"My basic position is the police, lacking a warrant, had no right to search the home and lacked consent to do so," McMahon said.

Billerica police responded to Runyon's Fernwood Road home on April 1, 2008, for a report that Runyan's son, an 18-year-old with special needs, used a BB gun to shoot out some of his neighbor's windows.

The teen allegedly told police he "hates" his neighbor, who is 82.

When Billerica police asked if there were other guns in the house, the teen took them to his father's bedroom and pointed to two soft carrying cases under the bed. One case contained a shotgun secured with a trigger lock. The other contained a semiautomatic hunting rifle that had no locking device.

The father was charged by Billerica police with violating the gun laws by failing to secure the rifle in a locked container or by means of a trigger lock or comparable safety device.

State law requires that stored firearms be secured in a locked container or equipped with a tamper-resistant safety device, except when "carried by or under the control of the owner or other lawfully authorized user."

In the early stages of the case, McMahon asked that the case be dismissed, arguing that mandating the safe storage of firearms infringes on Runyon's right to bear arms for self-defense under the Second Amendment. What was cited was a 2008 case in which the U.S. Supreme Court threw out the District of Columbia's requirement that firearms be equipped with trigger locks or kept disassembled.

In October 2008, Lowell District Court Judge Geoffrey Packard allowed the motion to dismiss the Runyan case. The Middlesex District Attorney's office appealed and the SJC took it upon appeal, siding with the district attorney.

Read more: http://www.lowellsun.com/ci_14777808?source=rss#ixzz0jfV9Vzwu

 

[Pilgrim]

Would storing pistols and long guns in a lockable one of these satisfy?

yes

 

[Garys]

How come it's always "the conservative Supreme Court" when they find for conservative appellants, but it's never the "liberal Supreme Court" when they find for liberal appellants?

That's a rhetorical question, because I know the answer.

 

[Knuckle Dragger]

Okay, so Mr. Runyan is taking a different course and going with a 4th Amendment question. If successful it will be good for him , but have no impact on any Mass law or any other gun owners.

 

[cekim]

How come it's always "the conservative Supreme Court" when they find for conservative appellants, but it's never the "liberal Supreme Court" when they find for liberal appellants?

That's a rhetorical question, because I know the answer.

There's also the issue that the court hasn't been "conservative" for a LOOONG time WRT to protecting the Constitution. It's been ignoring the 14th amendment and enumerated powers for 150 years...

That's the funny thing about this moment in history. The "establishment" is socialist, environmentalist, progressive, etc....

WE are now "anti-establishment" in believing in a strict interpretation of the Constitution and the rights of the individual over the rights of the state.

Welcome to the other side all you NES liberals...

 

[cekim]

Okay, so Mr. Runyan is taking a different course and going with a 4th Amendment question. If successful it will be good for him , but have no impact on any Mass law or any other gun owners.

He needs to do what he needs to do... If you want to fall on a Constitutional sword, please do, but don't ask anyone else to...

 

[Half Cocked]

Okay, so Mr. Runyan is taking a different course and going with a 4th Amendment question. If successful it will be good for him , but have no impact on any Mass law or any other gun owners.

Correct.....And my guess is that it is a hail mary attempt as this would have most likely been the first argument to make in normal circumstances.

 

[Half Cocked]

Adding to the confusion is the following statement: “A gun owner may therefore carry or keep a loaded firearm under his or her control in his or her home without securing it with a trigger lock or comparable safety device.” Traditional views of the law have always been that in order for a gun to be under your direct control you must be carrying it in some fashion. This statement seems to say something different as it states “carry or … under his or her control”. This now begs the question when is a gun under your control when you are not carrying it?

If I were to make a legal argument as to what is "under direct control" I would make a comparison to "Constructive Possession" as it applies to possessory offenses. Look at the legal definition of "Constructive Possession".

CONSTRUCTIVE POSSESSION

The law recognizes that possession may be constructive instead of actual. A person who, with knowledge of its character, knowingly has direct physical control over a thing, at a given time, is in actual possession of it. Constructive possession means possession in which the person does not physically have the property, but though not physically on one's person, (he/she) is aware of the presence of the property and is able to exercise intentional control or dominion over it.
A person who,although not in actual possession, has knowledge of its character, knowingly has both the power and the intention at a given time to exercise control over a thing, either directly or through another person or persons, is then in constructive possession if it.

I would make an argument that if you could be charged with "Constructive Possession" for having an illegal item sitting in your home or car and not on your person then you should be in "direct control" for purposes of storage requirement.

But we all know... I am not a lawyer.

 

[Len-2A Training]

Correct.....And my guess is that it is a hail mary attempt as this would have most likely been the first argument to make in normal circumstances.

Yes, but I always wondered about this angle. Having had a Sister who had Downs Syndrome, someone with a mental disability (at least of diminished capacity . . . can't speak of toher "mental disabilities") really doesn't have the capability of understanding that they can withhold consent, refuse to answer questions, etc. If a police officer or anyone on official business came to the door and talked with my late Sister, she would have told him/her her life history, showed them anything they asked about, told them everything about the Family, etc. They are incapable of keeping a secret, understanding the concept of "privacy" or the legal rights that we discuss here all the time.

Therefore, I question if they can give consent to a search (offer info on "other guns" ot the officer and then lead him there). IANAL, but I think that the search (and fruits thereof) should have been tossed if the Son had diminished capacity.

 

[Half Cocked]

Yes, but I always wondered about this angle. Having had a Sister who had Downs Syndrome, someone with a mental disability (at least of diminished capacity . . . can't speak of toher "mental disabilities") really doesn't have the capability of understanding that they can withhold consent, refuse to answer questions, etc. If a police officer or anyone on official business came to the door and talked with my late Sister, she would have told him/her her life history, showed them anything they asked about, told them everything about the Family, etc. They are incapable of keeping a secret, understanding the concept of "privacy" or the legal rights that we discuss here all the time.

Therefore, I question if they can give consent to a search (offer info on "other guns" ot the officer and then lead him there). IANAL, but I think that the search (and fruits thereof) should have been tossed if the Son had diminished capacity.

I would think that a motion to suppress the search would have been done prior to an SJC case if the defense attorney was confident in it.

That is my only point. Not commenting on the merits of the search.

 

[Len-2A Training]

HC, we agree. I don't understand why it wasn't raised as the first objection.