Comm2A Files Amicus in Gun Seizure Case

[Comm2A]

On Friday we filed an amicus brief with the SJC in Commonwealth vs. Mark Adams SJC-12620.

Adams deals with the issue of whether the police can force entry into a home and seize lawfully possessed firearms based upon the administrative suspension of an LTC but without obtaining a search warrant or other judicial order.

ISSUES PRESENTED

This Court requested amicus briefs to address:​

1. Whether Massachusetts should recognize the common-law crime of interfering with a police officer in the lawful performance of his or her duties; and if so, whether the jury instructions on the elements of that crime were correct.
2. Whether police officers, who had just served the defendant in hand with a notice suspending his firearms license, were in the lawful performance of their duties when demanding the immediate surrender of his firearms, where (i) the obligation to surrender the firearms under G. Z. c. 140, § 129D, does not apply if an appeal is pending, (ii) the defendant expressed the intention to consult-his attorney immediately upon receiving notice of the suspension, but (iii) the police nevertheless confiscated the weapons on the spot, before the defendant had an opportunity to consult with an attorney or commence an appeal.

Our brief can be found here.


COMMONWEALTH vs. MARK ADAMS

 

[JohnZ]

Do I remember the state arguing in one of these trials that you don't need a LTC for a firearm in the home? If so, revocation is not a valid reason to seize.

 

[42!]

Do I remember the state arguing in one of these trials that you don't need a LTC for a firearm in the home? If so, revocation is not a valid reason to seize.

That's an interesting thought, can the arguments used by the state in one case be used against them in another? I hope one of the lawyers out there will respond.

Given how convoluted the laws are, and how some of the arguments would be funny if it wasn't for the impact they have, I can see conflicting arguments coming up all the time.

 

[Junior314]

Keep up the good work!

 

[M125X]

Another donation incoming! Remember your donations are tax deductible so get them in by tomorrow for 2018!

 

[Palladin]

Jesus , how is it we don't hear about these things

 

[Drix]

I would have thought this had been settled after the Gardner cases?

 

[n1oty]

I checked out some of the briefs in this case. One thing I am deeply troubled by is the fact that the Tyngsboro cops went to this guys house to serve the notice of suspension and to confiscate the guns, ammo, etc., BUT the Commonwealth subsequently dropped the charge on the failure to surrender those same guns and ammo. Obviously, the Commonwealth must have felt they were on soft ground here. So, all we have left are supposed crimes that would not have occurred without the Tyngsboro cops initiating this entire affair.

 

[Chevy 2 65]

I have to ask. Does Heller have any bearing on this case with regards to keeping firearms in the home?

On June 26, 2008, in District of Columbia v. Heller (PDF), the United States Supreme Court issued its first decision since 1939 interpreting the Second Amendment to the United States Constitution. The Court ruled that the Second Amendment to the U.S. Constitution confers an individual right to possess a firearm for traditionally lawful purposes such as self-defense

 

[Rob Boudrie]

Does Heller have any bearing on this case with regards to keeping firearms in the home?

Only sort of, because the 2A is a right of the second class

 

[MaverickNH]

Never step over the threshold of your front door to talk with any LEOs, nor let them in. I’ve politely said: I’m just fine here in my house, thanks [talking to them while they stood on my sidewalk in the cold rain]. Maybe you’d like to call me from your cars, once you back out of my driveway onto the street. No thanks, I’ll not be planning to come to the station for a talk. Have a good day now. Good night.

Since my son joined the Army, I’ve had no occasion to talk to our Thin Blue Line and always drive below the speed limit in town. Time will cure all. Come a time I need them, I’m sure they’ll have no animosity, as I was always polite and respectful, as were they.

 

[Boston4567]

This is a really interesting case, because it's going to force the courts (for the first time) to define the specific rights and duties of firearms owners after administrative LTC revocation.

There appear to be two post-revocation surrender statutes that are at odds, and the one the actually prescribes penalties for not surrendering firearms after revocation allows an exception for cases that are under appeal. The other statute prescribes a duty to surrender but not a penalty or enforcement mechanism.

I wasn't aware this was a gray area before, but if you're interested, the Comm2a brief in this case is an interesting read. I was aware that the constitutional case for requiring surrender without a court order was strong, but I wasn't aware that there was a strong statutory case to be made.

Of course, the SJC will promptly discard normal rules of statutory interpretation, 'cuz guns.

 

[VetteGirlMA]

Do I remember the state arguing in one of these trials that you don't need a LTC for a firearm in the home? If so, revocation is not a valid reason to seize.

I'd be willing to bet though that our SJC can come up with an even more convoluted line of reasoning that justifies both positions even if they are mutually exclusive.

 

[HARRYM]

I have read that case. It's actually frightening. Its what happens in Communist Countries. Any official, including LE, who was involved in the Adams case needs to be fired and sentenced to jail time. Otherwise the Constitution doesn't mean a damn thing.

 

[hv55maxx]

i wonder if this goes our way, if it will have any bearing on those stupid ERPO laws....

 

[Boston4567]

i wonder if this goes our way, if it will have any bearing on those stupid ERPO laws....

Not at first, but eventually. One of Comm2a's primary points in their brief is that ERPO was actually passed to fill a statutory gap - namely, the fact that police have no statutory authority to forcibly confiscate guns after administratively revoking an LTC on the basis of suitability. The problem with administrative revocation vs. ERPO is that there's no court order for the former.

This case will hopefully drive the development of future case law by reducing the role of administrative revocation in the absence of a court order. By forcing the police to go to the courts for an ERPO, you get a better record both of findings of fact and findings of law, which instigates the development of more case law as those cases are appealed.

And that's how we ultimately get to the point where the right judges are reviewing the "preponderance/more likely than not having a gun makes you unsafe" standard in ERPO.

 

[LoginName]

The ACLU is involved.

Is this a first for Comm2a and/or a challenge to MA firearms law?

 

[M1911]

Are they involved in any way other than just submitting an Amicus brief?

 

[LoginName]

Are they involved in any way other than just submitting an Amicus brief?

It just came to me, I just realized that I had read that the ACLU
had been involved elsewhere regarding ERPO's...

"The ACLU of Rhode Island today issued a fourteen-page analysis that expresses “great concern” about pending state legislation that would allow family members and law enforcement officers to petition a judge to issue an “extreme risk protective order” (ERPO) against an individual who legally owns firearms but who is alleged to pose a “significant danger of causing personal injury to self or others.” This so-called “red flag” legislation follows the tragic shooting of students at a Parkland, Florida high school last month."

ACLU of Rhode Island Raises Red Flags Over “Red Flag” Gun Legislation | News | The American Civil Liberties Union of Rhode Island

But that hasn’t been proven. He’s been disarmed without being convicted of anything. And that concerns, of all groups, the American Civil Liberties Union of Rhode Island:


“The heart of the legislation’s ERPO process requires speculation – on the part of both the petitioner and judges – about an individual’s risk of possible violence. But, the ACLU analysis notes: ‘Psychiatry and the medical sciences have not succeeded in this realm, and there is no basis for believing courts will do any better. The result will likely be a significant impact on the rights of many innocent individuals in the hope of preventing a tragedy.’”


‘Gun Leaders’ Approve of Extreme Protection Orders Opposed by ACLU

 

[FalArAk]

Are they involved in any way other than just submitting an Amicus brief?

+1

 

[allen-1]

I have read that case. It's actually frightening. Its what happens in Communist Countries. Any official, including LE, who was involved in the Adams case needs to be fired and sentenced to jail time. Otherwise the Constitution doesn't mean a damn thing.

I just read the PDF that Comm2a provided. It is indeed frightening. Cops show up, and without warrant, demand entry to your home and demand your firearms because your LTC has been administratively suspended - and arrest you for interfering with a police officer when you refuse. Then they break into your safe and seize your firearms.

If you're a Mass gun-owner, you should be afraid - and should very seriously consider sending funds to Comm2a and GOAL. This crap has to be beaten in the courts.

 

[Boston4567]

The ACLU is involved.

Is this a first for Comm2a and/or a challenge to MA firearms law?

I missed that the first time I looked up the case. Anyone have a copy of their brief? It doesn't seem to be on the SJC's site.

EDIT: Also missed this the first time. It looks like the SJC might be leaning our way for once, given the sua sponte transfer, questions presented, and solicitation of amici (emphasis mine):

10/12/2018 #2 ANNOUNCEMENT: The Justices are soliciting amicus briefs. 1. Whether Massachusetts should recognize the common-law crime of interfering with a police officer in the lawful performance of his or her duties; and if so, whether the jury instructions on the elements of that crime were correct. 2. Whether police officers, who had just served the defendant in hand with a notice suspending his firearms license, were in the lawful performance of their duties when demanding the immediate surrender of his firearms, where (i) the obligation to surrender the firearms under G. L. c. 140, § 129D, does not apply if an appeal is pending, (ii) the defendant expressed the intention to consult his attorney immediately upon receiving notice of the suspension, but (iii) the police nevertheless confiscated the weapons on the spot, before the defendant had an opportunity to consult with an attorney or commence an appeal.

 

[Knuckle Dragger]

If the SJC does indeed 'lean our way' here it will because their 4A/Art.14 concerns far outweigh their feelings about guns, gun owners, and the Second Amendment. This is exactly why the ACLU has submitted a brief in this case.

Frankly, the cops are just plain lazy in these cases. If given the opportunity, most district court judges would happily issue a judicial order to seize someone's guns once the police tell them that an LTC had been suspended. I wouldn't be surprised if the SJC ruled in favor of this guy but at the same time provided police and lower courts a roadmap on how to take someone's guns away following the 'administrative' suspension of an LTC.

 

[rommel]

Do I remember the state arguing in one of these trials that you don't need a LTC for a firearm in the home? If so, revocation is not a valid reason to seize.

It is right in the name of the license. It is a license to carry. Does the revocation of the ltc automatically mean you can not posess and/or store inside a private home? How is this not differemt from not renewing on time? Am I to expect a raid by police the day after my birthday because I forgot to renew my ltc on time?
Other thoughts, the transferee has (I believe) 7 days to record the transfer. Could he have transfered the guns to another person on the premises and the guns have just not been efa10'd yet?
What if I loaned my friend a gun when he had his/her ltc and he suddenly gets it revoked (unforseeable) does my gun get confiscated also? Although I disagree with the confiscation, why are the police asserting they are the only option for safekeeping the guns? What if my friend loaned me a gun and then he/she gets revoked, does that mean my house will get unjustly raided also? What if I have an out of state MA ltc and it gets revoked, does my NH home get raided?
I do not see how the state can assert that losing your MA ltc is grounds to raid private property and seize private property. Last I knew if my drivers license was revoked, the state does not come and take your car.

 

[MuzzleDiscipline]

It is right in the name of the license. It is a license to carry. Does the revocation of the ltc automatically mean you can not posess and/or store inside a private home? How is this not differemt from not renewing on time? Am I to expect a raid by police the day after my birthday because I forgot to renew my ltc on time?
Other thoughts, the transferee has (I believe) 7 days to record the transfer. Could he have transfered the guns to another person on the premises and the guns have just not been efa10'd yet?
What if I loaned my friend a gun when he had his/her ltc and he suddenly gets it revoked (unforseeable) does my gun get confiscated also? Although I disagree with the confiscation, why are the police asserting they are the only option for safekeeping the guns? What if my friend loaned me a gun and then he/she gets revoked, does that mean my house will get unjustly raided also? What if I have an out of state MA ltc and it gets revoked, does my NH home get raided?
I do not see how the state can assert that losing your MA ltc is grounds to raid private property and seize private property. Last I knew if my drivers license was revoked, the state does not come and take your car.

Firstly the obligation to record a transfer in the transferor and it is required to be done at or before the time of transfer.
Secondly you are trying to construct a logical approach to the legal system of the Commonwealth concerning a subject the leadership of the Commonwealth wants destroyed. Logic and commonsense have nothing to do with the power distribution or disrespect for the rule of law possessed by that leadership.

Since politically this has been settled for sometime the courts are really the only method to set things right.

 

[milktree]

It is right in the name of the license. It is a license to carry. Does the revocation of the ltc automatically mean you can not posess and/or store inside a private home? How is this not differemt from not renewing on time? Am I to expect a raid by police the day after my birthday because I forgot to renew my ltc on time?
Other thoughts, the transferee has (I believe) 7 days to record the transfer. Could he have transfered the guns to another person on the premises and the guns have just not been efa10'd yet?
What if I loaned my friend a gun when he had his/her ltc and he suddenly gets it revoked (unforseeable) does my gun get confiscated also? Although I disagree with the confiscation, why are the police asserting they are the only option for safekeeping the guns? What if my friend loaned me a gun and then he/she gets revoked, does that mean my house will get unjustly raided also? What if I have an out of state MA ltc and it gets revoked, does my NH home get raided?
I do not see how the state can assert that losing your MA ltc is grounds to raid private property and seize private property. Last I knew if my drivers license was revoked, the state does not come and take your car.

A driver's license is not a "vehicle owning license", it's a license to drive on public roads. Akin to a "Carry permit" in states where there's no licensing of gun ownership.

So... your analogy doesn't quite work here.

 

[Rob Boudrie]

EDIT: Also missed this the first time. It looks like the SJC might be leaning our way for once, given the sua sponte transfer, questions presented, and solicitation of amici (emphasis mine):

They have not listed a very important question: Does an LTC suspension/revocation order authorize police entry to the license holder's home if (s)he cooperates and offers to bring the cased guns to the door for surrender?

 

[Len-2A Training]

They have not listed a very important question: Does an LTC suspension/revocation order authorize police entry to the license holder's home if (s)he cooperates and offers to bring the cased guns to the door for surrender?

What about those of us who don't have enough cases? Or keep them uncased in a safe?

 

[swatgig]

I think I'll apply for an FID card. That way the chief has to go to court to seize my guns (based on suitability)

 

[308rifleman]

I think I'll apply for an FID card. That way the chief has to go to court to seize my guns (based on suitability)

That is why I am happy to be FID only. They said I was "unsuitable" for LTC because of my BCD 20 years ago. They actually did me a favor!