Commonwealth vs. Lojko: New MA "Safe Storage" Case

[TheRoland]

The MA Appeals Court today handed down a new decision regarding MA's "safe storage" provisions.

http://www.socialaw.com/slip.htm?cid=19943&sid=119

I'm reading the slip opinion right now, but the issue seems to be:

Is a firearm stored in a locked box safely stored if the whole box can just be stolen?

It looks like the appeals court has said "Yes." Also of interest, this seems to have had a question as to if the common "thread a cable lock through the factory gun case" is secure enough to count as a locked case (and the trial court seems to have found it was).

(EDIT to remove bad reading on my part: There is a Judge Cohen in this case.)

This case has made the popular Volokh Conspiracy blog but which I've not read yet.

 

[pdm]

Volokh link here.

 

[CLMN]

"Applying the familiar rules of statutory construction, as well as our reasoning in Parzick, the statutory language at issue here requires only that a gun owner secure a firearm in a locked container such that "all but the most persistent [will be deterred] from gaining access." Commonwealth v. Parzick, 64 Mass. App. Ct. at 850.(7)"

Has the wording: "... all but the most persistant [will be deterred] from gaining access..." ever been detailed by examples or better explained in any legal sense???

CLMN

 

[TheRoland]

"Applying the familiar rules of statutory construction, as well as our reasoning in Parzick, the statutory language at issue here requires only that a gun owner secure a firearm in a locked container such that "all but the most persistent [will be deterred] from gaining access." Commonwealth v. Parzick, 64 Mass. App. Ct. at 850.(7)"

Has the wording: "... all but the most persistant [will be deterred] from gaining access..." ever been detailed by examples or better explained in any legal sense???

CLMN

Well, Commonwealth v. Parzick was about using a standard indoor door lock (the pin-hole, not key, type of indoor lock) and that was not sufficient. So.... better than that?

 

[Dirtypacman]

Thanks for the link, too bad the original ruling had to be overturned instead of the proper ruling the first time.

 

[CLMN]

Well, Commonwealth v. Parzick was about using a standard indoor door lock (the pin-hole, not key, type of indoor lock) and that was not sufficient. So.... better than that?

Understood on the "bobbypin" interior door locks being NG. I'm just wondering if there has been any clarification of that dubious phrase beyond that.

CLMN

 

[yodaottis]

I have pondered this one myself as sometimes when traveling with more than one handgun I need to use a padlocked drybox. I always padlock it and run a locked cable through the padlock and around the bar that supports my trunk. A determined thief could always melt or cut the drybox but I didn't find anything in the wording to suggest a standard for the material of the storage container itself.

 

[cekim]

Thanks for the link, too bad the original ruling had to be overturned instead of the proper ruling the first time.

That's the way in this state. Either a dumb ruling gets overturned or a good one gets overturned. There is no consistency of law in this state - it's a crap shoot based on the whims of the judge legislating from the bench most of the time...

Some of that may be due to inside vs outside the 495 loop for a given judge...

 

[Admin]

The fact that you subjects even have to lock your guns up on your own property is absurd...

 

[TheRoland]

The fact that you subjects even have to lock your guns up on your own property is absurd...

It may be interesting to figure out how Heller and (in a day or Monday) McDonald effect this.

 

[Rob Boudrie]

Well, Commonwealth v. Parzick was about using a standard indoor door lock (the pin-hole, not key, type of indoor lock) and that was not sufficient. So.... better than that?

Actually, it was more likely about someone who did not lock up their guns and tried to pass off the fact that the bedroom door had a privacy lock as compliant - sort of an ex-post-facto locking device. Under innocent until proven guilty, the court could not simply say "cut the s--t, we know you're just trying to claim you had the gun locked up when you didn't", so they came up with other reasoning to the same end.

 

[terraformer]

It may be interesting to figure out how Heller and (in a day or Monday) McDonald effect this.

I wouldn't hold your breath. At most it will take some teeth out of some really strict interpretations of "under ones control" but don't expect that at it's core heller by itself will radically change MA storage laws.

 

[Dench]

...(in a day or Monday) McDonald effect this.

When is the ruling expected?

 

[terraformer]

When is the ruling expected?

Next week. Mon, Tues or Wed. Expect Wed.

 

[TheRoland]

Next week. Mon, Tues or Wed. Expect Wed.

I'm hoping for tomorrow (admittedly, not super likely) or Monday.

 

[terraformer]

I'm hoping for tomorrow (admittedly, not super likely) or Monday.

I just checked, you are right tomorrow is a possibility I didn't include on the list, but I still stand behind next wed being the likely day.

 

[TheRoland]

I just checked, you are right tomorrow is a possibility I didn't include on the list, but I still stand behind next wed being the likely day.

But my Monday is going to be insane, and could really use a lift. I'm sure the SCOTUS knows this and may plan accordingly.

I think Monday is traditionally an opinion day, while Wednesday isn't. Hope springs eternal. I also don't want to take a win for granted (although I think it very likely).

 

[terraformer]

But my Monday is going to be insane, and could really use a lift. I'm sure the SCOTUS knows this and may plan accordingly.

I think Monday is traditionally an opinion day, while Wednesday isn't. Hope springs eternal. I also don't want to take a win for granted (although I think it very likely).

Yes, it is along with thursdays. I hope you are right. They have a ton of stuff not released yet. 11 to be exact.

 

[TheRoland]

Yes, it is along with thursdays. I hope you are right. They have a ton of stuff not released yet. 11 to be exact.

Indeed; and they normally do, what, 4 or 5 per opinion day? With that logic, though, they could delay McDonald to a non-traditional opinion day, like Wednesday, or *gasp* beyond the normal June cutoff.

The time sure is going slow, either way, to the point where we're arguing over the day they'll slip it! My bet? Six opinions tomorrow, 4 + McDonald on Monday.

 

[terraformer]

Indeed; and they normally do, what, 4 or 5 per opinion day? With that logic, though, they could delay McDonald to a non-traditional opinion day, like Wednesday, or *gasp* beyond the normal June cutoff.

The time sure is going slow, either way, to the point where we're arguing over the day they'll slip it! My bet? Six opinions tomorrow, 5 Monday.

Last year or the year before they issued an opinion in August from the term before. But if they release 5 or 6 opinions tomorrow I will start to agree with you monday is looking more likely. We find soon enough.

 

[Mike S]

they usually give a "heads up" the day before a decision of that magnitude is rendered, do they not?

 

[TheRoland]

they usually give a "heads up" the day before a decision of that magnitude is rendered, do they not?

I could be wrong, but I don't think so. There's usually only a few cases left on the last day of scheduled opinions, though, so it's usually a no-brainer if one of those cases is high-profile. The Heller case, for instance, was expected because there were only 3 left.

 

[dfranke]

Actually there are two high-profile opinions left to be handed down this session. The other (unrelated to guns or 2A) is In re Bilski.

 

[TheRoland]

Actually there are two high-profile opinions left to be handed down this session. The other (unrelated to guns or 2A) is In re Bilski.

Oooh, good point. I love my patent cases. We've largely ignored last week's big decision on 'material support' too.

I may have to go make a SCOTUS Thread....

 

[n1oty]

It appears that the Barnstable County DA is talking out of both sides of his mouth. This Comm v. Lojko case, although preceding the Bolduc case by a few months, went through the appellate process around the same time that the Barnstable County DA decided NOT to appeal on Bolduc. Yet, I noted in this case that the Barnstable County ADA made the argument that Heller did not apply in Mass and that this argument stayed this appeal until the SJC made it's storage ruling, at which time this appeal was heard. So, we have one case (Bolduc) where the DA in that County says Heller applies and he won't appeal the dismissal and then we have the same DA (through his ADA) arguing on two grounds, one of which is against the applicability of Heller. Now, in order for this issue to be raised on appeal, it HAD to be raised at trial. Fortunately, this guy got it overturned based on proper storage.

 

[terraformer]

It appears that the Barnstable County DA is talking out of both sides of his mouth.

Color me shocked. It was obvious Bolduc was only half heartedly prosecuted from day one.

 

[wheelgun]

It seems this Lojko ruling only addresses firearms locked in container. Does it in any way impact storage with just a trigger lock and no container?

.

 

[terraformer]

It seems this Lojko ruling only addresses firearms locked in container. Does it in any way impact storage with just a trigger lock and no container?

.

No, they specifically said they were only dealing with the first half of the storage requirement.

Discussion. In order to prove the offense of improper storage of a firearm, the Commonwealth must demonstrate that the defendant failed to keep the firearm "secured in a locked container" or "equipped with a tamper-resistant mechanical lock or other safety device." G. L. c. 140, § 131L(a).(5) In this case, we are concerned only with the first method of storing a firearm. The Commonwealth's theory of culpability was that, even though the handgun was stored in a locked box, the box and the lock were inadequate, and, further, that the gun was not "secure[]" because anyone could walk away with the cooler in which the gun was hidden or with the locked box itself. The judge adopted the Commonwealth's latter theory, framing the issue as "whether the gun was maintained in a locked and secured location." The judge found the defendant guilty on the ground that, "although . . . the gun was locked," it was not in a "secured location."

 

[wheelgun]

No, they specifically said they were only dealing with the first half of the storage requirement.

Yes I saw that, but if they were SO concerned about a locked container being inadequate, I can only imagine how dangerous they would consider an openly exposed firearm with just a trigger lock. I guess it's best to just keep quiet and not give them any ideas.

.

 

[Half Cocked]

Yet, I noted in this case that the Barnstable County ADA made the argument that Heller did not apply in Mass and that this argument stayed this appeal until the SJC made it's storage ruling, at which time this appeal was heard.

It was the Appeals Court that heard oral arguments and then stayed the appeal until after Runyan. Not the DA.