Comm2A files Amicus in Important Safe Storage Case

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I finished reading the Comm2A Amicus Brief on this case. It is an absolutely brilliant piece of work!
Agreed, great that this was pulled together so fast!

The brief made clear that the storage charge is definitely bunk since the car was locked and maybe the glove compartment too (disputed).
On the 131C(a) charge though, I'm wondering if they're trying to resurrect the precedent mentioned here though:
http://www.northeastshooters.com/vb...t-work-gun-law?p=962999&viewfull=1#post962999
Prior to 1998, court precedent established that if you left a firearm (handgun) unattended in a motor vehicle, you were "carrying it but not having it under your direct control".
I don't remember reading anything stating that the 131C(a) charge was related to the time he was driving the car as opposed to when he was at work and the vehicle was parked. The state's brief seems to argue for exactly this: http://www.ma-appellatecourts.org/?brief=SJC-11270_04_Appellee_Commonwealth_Brief.pdf @ page 21-22.

I also love the 2A argument for ready access for self-defense upon return to the vehicle in the other brief, though that's a real stretch for a state court.
http://www.ma-appellatecourts.org/?brief=SJC-11270_01_Appellant_Reyes_Brief.pdf @ page 21-22.
 
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Good stuff. See answer above. Where can I get these brochures, to leave at the club? Thank you.
I'll be posting something in the instructor and deal forums next week when I'm back from GRPC. I'll list out what we have and provide instructions for requesting promotional items. We'll also be looking for a few trusted volunteers to help with outreach in the coming months.
 

Garys

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Part of the art of constructing a decent brief is to lay out a logical framework that makes it difficult for a court that "wants" another outcome to write an intellectually coherent decision that addresses the points layed out in the brief. Tom did well on this one.

Not that that fact stops them if they really want a particular outcome. As in the extent case where the logic is pretty tortured at least at the trial level.
 

Garys

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I finished reading the Comm2A Amicus Brief on this case. It is an absolutely brilliant piece of work!

According to Keith Langer, he says it was Tom (terraformer) who wrote this brief. Pretty damn good for a non-lawyer! [wink]

I didn't know Tom wasn't a lawyer. It's very impressive for anyone, lawyer or not. Then again, why should Tom let the absence of a bar ticket, it certainly hasn't stopped Liz Warren.

The truth is that reading a lot of cases is very helpful, even if you aren't a lawyer. Actually, it used to be called "reading the law" and a lot of people became lawyers by clerking for lawyers, reading cases, and discussing them with their bosses. I think you could still do that in New York State into the 1970s.
 

Rob Boudrie

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I didn't know Tom wasn't a lawyer.

If you were facing a gun charge in MA, you would be better of with Tom than the vast majority of general practice lawyers. Unfortunately, since he is not a (D) candidate for public office, the system does not allow him to practice without a bar license.
 

terraformer

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Got an email from Terraformer on Saturday- "there goes my weekend", and draft of the brief ready for review the following Monday.
FIFY

I didn't know Tom wasn't a lawyer.

I am not and this (and everything else we do) is a team effort. The timelines were that we needed to quickly have an analysis of the case and a draft quickly or we would never have had it submitted given the courts timeline. What I gave to keith and what he submitted are worlds apart in terms of quality, polish and correctness. I merely laid out the general direction of the piece as any good client would tell their legal representative this is what we want to say. Sometimes it's easier to write draft language because in briefs you really don't have too much extraneous text. All of the quotes, citations, etc all say something. Every last one of these has been a team effort.
 

Garys

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If you were facing a gun charge in MA, you would be better of with Tom than the vast majority of general practice lawyers. Unfortunately, since he is not a (D) candidate for public office, the system does not allow him to practice without a bar license.

If I were facing a gun charge in MA, there is a short list of people I'd call. None of them would be a general practice lawyer. The is almost as specialized as medicine these days. It's almost to the point where you need to talk to a lawyer to talk to a lawyer.
 
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I'll be posting something in the instructor and deal forums next week when I'm back from GRPC. I'll list out what we have and provide instructions for requesting promotional items. We'll also be looking for a few trusted volunteers to help with outreach in the coming months.

Did GOAL ever do their big annual banquet this year? Is it too late to put together a Christmas Banquet? How about a New Year's Banquet some time in January?

This would be a great time to pull in all the clubs, and get new clubs to come to GOAL as well. This would also be a great opportunity for "break out sessions" for this sort of thing, and setting up networks to connect like minded people.

Carry on.
 

terraformer

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This case was argued this morning. Knuckle Dragger was there and will report out when he can. I heard it went well and the justices hammered the ADA on many of the same points we raised. We were not mentioned by name so we can't say if our participation helped any but it sure didn't hurt... [grin]

I look forward to having Comm2A be a resource for information for the justices when they have gun cases on their docket.
 

jcr

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I'm struck by a couple things with this case. First, the SJC took the case sua sponte rather than waiting for it to progress naturally through the lower courts. ... A less charitable view of this practice is that the SJC is interested in creating specific outcomes and pro-actively tailoring case law to their liking.
It is worth noting that "Commonwealth v. Hubert Davis" (1976) was also taken by the SJC sua sponte.

In 1976 the seeming motive was to provide a timely signal to the electorate that (they felt) there was no Constitutional problems with an outright ban on handguns.

On the ballot in November of 1976 was an initiative petition to ban all handguns in Massachusetts. They decided the case in March holding that neither the 2nd Amendment to the US Constitution nor Article 17 of the Declaration of Rights in the Massachusetts Constitution had anything to do with the private possession of a handgun.

The petition failed in that November -- and the anti-self-defense crowd has been salami slicing on Beacon Hill and at the AG & EOPS office ever since.

--jcr
 
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It is worth noting that "Commonwealth v. Hubert Davis" (1976) was also taken by the SJC sua sponte. ... On the ballot in November of 1976 was an initiative petition to ban all handguns in Massachusetts. They decided the case in March holding that neither the 2nd Amendment to the US Constitution nor Article 17 of the Declaration of Rights in the Massachusetts Constitution had anything to do with the private possession of a handgun. ...

Well, hasn't that been over-ruled on a federal level now? How does that get this case overturned?
 

cekim

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Well, hasn't that been over-ruled on a federal level now? How does that get this case overturned?
It has by Heller/MacDonald, but strictly speaking the state could try it one last time and get spanked. I think the 1st circuit and SCOTUS have made it abundantly clear to them that this would be pointless.

So far as I have seen and comm2A can correct me here, but the SJC shows little if signs that they are trying to apply Comm v. Davis at this point.

They are, instead, clinging bitterly to "in the home" and "reasonable restrictions." (thanks Scalia [thinking])

So, unless they decided to jump on a sword, I am not waiting to see a specific "overrule" of that, but rather it will just fall by the way side is irrelevant.
 
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There were two gun cases argued this morning and I attended both. The videos will be released at some point and we'll update the thread when that happens. If nothing else they're interesting and it's even better being there.

First up was Comm v. McGowan. This wasn't actually an appeal. The defendant moved for dismissal on 2A grounds and the trial court is deferring to the SJC.

Short story: 69 year old guy stores gun in night stand. Gets in fight with girlfriend/roommate who grabs gun runs outside and throws it in the bushes. This guy retrieves the gun, puts it away and calls the police on girlfriend/roommate. She's arrested, but charges are dropped. He's charged and goes to trial.

The defense mounted a short re-cap of their pleadings. The ADA was very good and articulate and didn't push the limits of 131L as far as many do. There was a lot of hypotheticals and neither the court nor the ADA seemed comfortable with the idea that a gun had to be on you or locked up. They seemed to be looking for some middle ground. Is the gun in the night stand under your control: when home upstairs? - probably, when you're asleep? - probably, downstairs? - maybe not. This is when of those things where you're probably good until you let someone stupid do something stupid with your gun and the cops get involved.

Next up was Reyes: I was disappointed that the court didn't specifically reference the fine amicus work done by Comm2A. JK

The defense attorney presented his case without incident. The ADA did not fair so well. The state's case is that Reyes improperly stored (131L) and transported (131C) because he left a loaded gun locked in his car. Although 131L says nothing about a loaded gun, the state contends that 131L must be read in conjunction with 131C so that by leaving his gun in the car unintended, he was transporting it out of his direct control. The justices were having none of it. The state's case goes into legilstavie history of the two section - Gants: "So, a gun owner needs to know the law and the legislative history?" They kept trying to get the ADA to address 131L where the word "loaded" never occurs. Even Botsford - who is no 2A fan wasn't buy it.

On the whole I think the justices were very serious with both these cases and asked good questions. With the exception of the Reyes ADA what I didn't see from the court or state was an attempt to push 131L to be read as broadly as possible. I think they want to put some kind of bounds around this. But we'll see.

Ironically enough, I ended up sitting next to Runyan's attorney who was there on a completely different and unrelated matter.

And then.... I run a quick errand whilst downtown and when I jump onto the MBTA I run smack into Scrivener(!) who almost didn't recognize me at first. My dapper suit and tie probably threw him off.
 

Palladin

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There were two gun cases argued this morning and I attended both. The videos will be released at some point and we'll update the thread when that happens. If nothing else they're interesting and it's even better being there.

First up was Comm v. McGowan. This wasn't actually an appeal. The defendant moved for dismissal on 2A grounds and the trial court is deferring to the SJC.

Short story: 69 year old guy stores gun in night stand. Gets in fight with girlfriend/roommate who grabs gun runs outside and throws it in the bushes. This guy retrieves the gun, puts it away and calls the police on girlfriend/roommate. She's arrested, but charges are dropped. He's charged and goes to trial.

The defense mounted a short re-cap of their pleadings. The ADA was very good and articulate and didn't push the limits of 131L as far as many do. There was a lot of hypotheticals and neither the court nor the ADA seemed comfortable with the idea that a gun had to be on you or locked up. They seemed to be looking for some middle ground. Is the gun in the night stand under your control: when home upstairs? - probably, when you're asleep? - probably, downstairs? - maybe not. This is when of those things where you're probably good until you let someone stupid do something stupid with your gun and the cops get involved.

Next up was Reyes: I was disappointed that the court didn't specifically reference the fine amicus work done by Comm2A. JK

The defense attorney presented his case without incident. The ADA did not fair so well. The state's case is that Reyes improperly stored (131L) and transported (131C) because he left a loaded gun locked in his car. Although 131L says nothing about a loaded gun, the state contends that 131L must be read in conjunction with 131C so that by leaving his gun in the car unintended, he was transporting it out of his direct control. The justices were having none of it. The state's case goes into legilstavie history of the two section - Gants: "So, a gun owner needs to know the law and the legislative history?" They kept trying to get the ADA to address 131L where the word "loaded" never occurs. Even Botsford - who is no 2A fan wasn't buy it.

On the whole I think the justices were very serious with both these cases and asked good questions. With the exception of the Reyes ADA what I didn't see from the court or state was an attempt to push 131L to be read as broadly as possible. I think they want to put some kind of bounds around this. But we'll see.

Ironically enough, I ended up sitting next to Runyan's attorney who was there on a completely different and unrelated matter.

And then.... I run a quick errand whilst downtown and when I jump onto the MBTA I run smack into Scrivener(!) who almost didn't recognize me at first. My dapper suit and tie probably threw him off.


Good deal!
 
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I'm reading this thinking of Americans with Disabilities Act (ADA), but it doesn't make a whit of sense. You need to speak in common language.
 

milktree

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The argument goes,

"The car is locked, therefore the glovebox or center console are 'locked containers', because the trunk, which can be accessed from the passenger compartment, is considered a 'locked container'."

right?

So, why does my house, which is locked, not count as a locked container?


I know, the answer is, "it's a stupid law, locked containers within locked containers leads to madness or Russian dolls.", but given that it's established that a house doesn't count as a locked container, how can an unlocked glovebox be considered one?
 

Garys

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The defense attorney presented his case without incident. The ADA did not fair so well. The state's case is that Reyes improperly stored (131L) and transported (131C) because he left a loaded gun locked in his car. Although 131L says nothing about a loaded gun, the state contends that 131L must be read in conjunction with 131C so that by leaving his gun in the car unintended, he was transporting it out of his direct control. The justices were having none of it. The state's case goes into legilstavie history of the two section - Gants: "So, a gun owner needs to know the law and the legislative history?" They kept trying to get the ADA to address 131L where the word "loaded" never occurs. Even Botsford - who is no 2A fan wasn't buy it.

On the whole I think the justices were very serious with both these cases and asked good questions. With the exception of the Reyes ADA what I didn't see from the court or state was an attempt to push 131L to be read as broadly as possible. I think they want to put some kind of bounds around this. But we'll see.

Is it possible (dumb question I know) that the court is trying to find a middle road that won't run afoul of Heller, but will still preserve the essence of "safe storage"? At least on the surface, the safe storage laws are alledged to be intended to prevent kids and others from gaining access to firearms. I forget the exact terms, but "unauthorized people" comes to mind. Or maybe I'm all wet.

Heller doesn't outlaw some storage restrictions, but would seem to prohibit making them so strict so as to prevent the legitmate owner from accessing it for self defense purposes. Of course, the venue being a car just complicates the whole thing.

Again, maybe I'm all wet.
 

jar

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Is it possible (dumb question I know) that the court is trying to find a middle road that won't run afoul of Heller, but will still preserve the essence of "safe storage"? At least on the surface, the safe storage laws are alledged to be intended to prevent kids and others from gaining access to firearms. I forget the exact terms, but "unauthorized people" comes to mind. Or maybe I'm all wet.

Heller doesn't outlaw some storage restrictions, but would seem to prohibit making them so strict so as to prevent the legitmate owner from accessing it for self defense purposes. Of course, the venue being a car just complicates the whole thing.

Again, maybe I'm all wet.

No, I think your analysis is spot on. The 2A protects a right to self defense. Anything that significantly infringes this right is likely unconstitutional. That doesn't mean that all gun laws are unconstitutional. While I think safe storage laws are bad policy, they likely pass constitutional muster if appropriately tailored. Being required to have your guns locked up when you're not home doesn't materially affect your self defense rights if you're free to carry one on your person as you come and go.
 
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I did not know I was alone in this. I guess I'll just stop reading now. Sorry to have bothered you.

;-)
You're not alone. You're just the only one willing to put yourself out there and ask.

Is it possible (dumb question I know) that the court is trying to find a middle road that won't run afoul of Heller, but will still preserve the essence of "safe storage"? At least on the surface, the safe storage laws are alledged to be intended to prevent kids and others from gaining access to firearms. I forget the exact terms, but "unauthorized people" comes to mind. Or maybe I'm all wet.

Heller doesn't outlaw some storage restrictions, but would seem to prohibit making them so strict so as to prevent the legitmate owner from accessing it for self defense purposes. Of course, the venue being a car just complicates the whole thing.

Again, maybe I'm all wet.
Actually, you're spot on. I'd challenge anyone to come up with a sound legal theory as to why safe storage laws are always unconstitutional. On their face they have a legitimate purpose. Their constitutionality will hinge on things like whether they interfere with one's right of self defense or whether they're plainly enough written such that people can understand and comply with them.

The safety vs. self defense tradeoff was relevant to McGowan here, not to Reyes where we filed the brief. In fact, the constitutional challenge in Reyes to 131C and 131L was NOT on Second Amendment grounds. A law can be unconstitutional if it is vague or overly broad. In Reyes the ADA had a pretty obtuse theory about how 131L needs to be read 'in light' of 131C such that storing a loaded gun in an unattended locked vehicle violated BOTH 131C and 131L even though the latter says nothing about loaded vs. unloaded guns. The justices were clearly concerned with this overly creative reading and the ability of the average person to understand their responsibility under the law. They challenged the prosecution not only on their nonsensical interpretation but on a citizen's ability to understand it from reading the law.
 
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