http://www.boston.com/news/local/ma...2009/01/06/detention_in_gun_cases_challenged/
Detention in gun cases challenged
Bristol DA's policy oversteps, critics say
By John R. Ellement and Jonathan Saltzman, Globe Staff | January 6, 2009
Immediately after he took office in January 2007, Bristol District Attorney C. Samuel Sutter took a tough new approach to reducing the violent gun crime that has ravaged cities such as Fall River and New Bedford.
Under the controversial policy, his prosecutors would ask a district court judge to detain for up to 90 days anyone arrested for illegally carrying a gun, regardless of the circumstances. Over the past two years, his office has requested 197 so-called dangerousness hearings for such gun felonies and persuaded judges to jail defendants 141 times, he says. The move has drawn praise from police chiefs and New Bedford Mayor Scott W. Lang, a former prosecutor who says the tactic takes dangerous people off the streets before trial.
But yesterday, the state's top judge signaled that Sutter may have overstepped his authority by using a law designed to hold dangerous defendants in domestic violence cases against anyone arrested for illegally carrying a gun.
Speaking from the bench in Boston during oral arguments in a legal challenge to the policy, Supreme Judicial Court Chief Justice Margaret H. Marshall said Sutter faces an uphill battle, and she appeared sympathetic to defense lawyers who characterized the approach as unconstitutional.
"We don't detain people easily before trial," Marshall told Sutter and Rachel Eisenhaure, an assistant district attorney from Bristol.
Sutter, who ousted Bristol District Attorney Paul F. Walsh Jr. in a Democratic primary in the fall of 2006, is the only district attorney of 11 in the state to seek a dangerousness hearing for anyone arrested on felony gun possession charges, according to Berkshire District Attorney David F. Capeless, president of the Massachusetts District Attorneys Association.
Capeless said he and the other district attorneys hold such hearings on a case-by-case basis and will often request high bail for defendants who pose a risk to the community. He said the policy would make no sense in his largely rural county, but he defended Sutter's approach in the more urban Bristol County.
"We have a lot of people who are hunters who may possess weapons that they aren't licensed to have" but pose little threat of violence, he said. "It's very different if we're talking about a drug dealer who has a firearm while plying his trade on the street."
Sutter, for his part, told Marshall and four other sitting justices that his approach is aimed at defendants who are carrying firearms for no legitimate purpose, and terrorize their communities.
"They are not going skeet shooting," he said. "They are not going deer hunting."
The state law that established dangerousness hearings was enacted in 1994 to combat domestic violence after several defendants free on bail killed their wives or girlfriends. But it has been expanded to include people charged with burglary, arson, or a "felony that by its nature involves a substantial risk that physical force against the person or life of another may result."
Even before he took office, Sutter said he intended to apply the law in firearms cases. Under state law, a person needs a license to carry in order to buy and own handguns, and a separate firearms identification card to possess rifles, shotguns, and ammunition.
In an interview with the Globe in October 2007, Sutter acknowledged that his get-tough policy "pushed the envelope" but said it had quickly curbed violent crime in Southeastern Massachusetts.
Lang, the New Bedford mayor, sounded a similar note after attending yesterday's arguments.
"It defies common sense to think that a gun is not something that dramatically increases the risk of substantial harm in our communities," he said.
"We see it every day. We want people carrying illegal guns off the streets."
But lawyers for three Bristol defendants who had dangerousness hearings for gun offenses - one of whom was found dangerous and two who were not - told the SJC that Sutter is violating the constitution. They said that someone can be caught illegally carrying a firearm but not be dangerous.
"It's not reasonable [to let prosecutors use] a statute that deprives individuals of their liberty before adjudication of guilt," said Elizabeth B. Doherty, a Fall River lawyer. "It's meant to be used only against a small number of defendants, the most dangerous."
Murray Allan Kohn, staff attorney for the state public defender agency, filed a friend-of-the-court brief, contending that some innocent people are losing their liberty merely because they have not kept their gun permits up to date.
"Do some people who carry unlicensed firearms cause harm? Absolutely," he said after the hearing. "Do the majority of people who carry unlicensed firearms cause harm? There is absolutely no evidence of that."
Sutter's spokesman, Gregg Miliote, said prosecutors seek hearings only in felonies.
Sutter's approach also has a critic in the Gun Owners Action League, whose executive director, Jim Wallace, said yesterday the group fears a blanket concept will ensnare legally licensed gun owners who may have a minor technical violation, such as a license that lapsed because a city or town was behind in issuing renewals.
If Sutter's policy "is for a prohibited person who has been arrested for possession of firearm during commission of a crime, we are 100 percent behind him," Wallace said. "But if it is a blanket proposal, we just can't support that."
John Ellement can be reached at [email protected]. Jonathan Saltzman can be reached at [email protected]
© Copyright 2009 The New York Times Company
Detention in gun cases challenged
Bristol DA's policy oversteps, critics say
By John R. Ellement and Jonathan Saltzman, Globe Staff | January 6, 2009
Immediately after he took office in January 2007, Bristol District Attorney C. Samuel Sutter took a tough new approach to reducing the violent gun crime that has ravaged cities such as Fall River and New Bedford.
Under the controversial policy, his prosecutors would ask a district court judge to detain for up to 90 days anyone arrested for illegally carrying a gun, regardless of the circumstances. Over the past two years, his office has requested 197 so-called dangerousness hearings for such gun felonies and persuaded judges to jail defendants 141 times, he says. The move has drawn praise from police chiefs and New Bedford Mayor Scott W. Lang, a former prosecutor who says the tactic takes dangerous people off the streets before trial.
But yesterday, the state's top judge signaled that Sutter may have overstepped his authority by using a law designed to hold dangerous defendants in domestic violence cases against anyone arrested for illegally carrying a gun.
Speaking from the bench in Boston during oral arguments in a legal challenge to the policy, Supreme Judicial Court Chief Justice Margaret H. Marshall said Sutter faces an uphill battle, and she appeared sympathetic to defense lawyers who characterized the approach as unconstitutional.
"We don't detain people easily before trial," Marshall told Sutter and Rachel Eisenhaure, an assistant district attorney from Bristol.
Sutter, who ousted Bristol District Attorney Paul F. Walsh Jr. in a Democratic primary in the fall of 2006, is the only district attorney of 11 in the state to seek a dangerousness hearing for anyone arrested on felony gun possession charges, according to Berkshire District Attorney David F. Capeless, president of the Massachusetts District Attorneys Association.
Capeless said he and the other district attorneys hold such hearings on a case-by-case basis and will often request high bail for defendants who pose a risk to the community. He said the policy would make no sense in his largely rural county, but he defended Sutter's approach in the more urban Bristol County.
"We have a lot of people who are hunters who may possess weapons that they aren't licensed to have" but pose little threat of violence, he said. "It's very different if we're talking about a drug dealer who has a firearm while plying his trade on the street."
Sutter, for his part, told Marshall and four other sitting justices that his approach is aimed at defendants who are carrying firearms for no legitimate purpose, and terrorize their communities.
"They are not going skeet shooting," he said. "They are not going deer hunting."
The state law that established dangerousness hearings was enacted in 1994 to combat domestic violence after several defendants free on bail killed their wives or girlfriends. But it has been expanded to include people charged with burglary, arson, or a "felony that by its nature involves a substantial risk that physical force against the person or life of another may result."
Even before he took office, Sutter said he intended to apply the law in firearms cases. Under state law, a person needs a license to carry in order to buy and own handguns, and a separate firearms identification card to possess rifles, shotguns, and ammunition.
In an interview with the Globe in October 2007, Sutter acknowledged that his get-tough policy "pushed the envelope" but said it had quickly curbed violent crime in Southeastern Massachusetts.
Lang, the New Bedford mayor, sounded a similar note after attending yesterday's arguments.
"It defies common sense to think that a gun is not something that dramatically increases the risk of substantial harm in our communities," he said.
"We see it every day. We want people carrying illegal guns off the streets."
But lawyers for three Bristol defendants who had dangerousness hearings for gun offenses - one of whom was found dangerous and two who were not - told the SJC that Sutter is violating the constitution. They said that someone can be caught illegally carrying a firearm but not be dangerous.
"It's not reasonable [to let prosecutors use] a statute that deprives individuals of their liberty before adjudication of guilt," said Elizabeth B. Doherty, a Fall River lawyer. "It's meant to be used only against a small number of defendants, the most dangerous."
Murray Allan Kohn, staff attorney for the state public defender agency, filed a friend-of-the-court brief, contending that some innocent people are losing their liberty merely because they have not kept their gun permits up to date.
"Do some people who carry unlicensed firearms cause harm? Absolutely," he said after the hearing. "Do the majority of people who carry unlicensed firearms cause harm? There is absolutely no evidence of that."
Sutter's spokesman, Gregg Miliote, said prosecutors seek hearings only in felonies.
Sutter's approach also has a critic in the Gun Owners Action League, whose executive director, Jim Wallace, said yesterday the group fears a blanket concept will ensnare legally licensed gun owners who may have a minor technical violation, such as a license that lapsed because a city or town was behind in issuing renewals.
If Sutter's policy "is for a prohibited person who has been arrested for possession of firearm during commission of a crime, we are 100 percent behind him," Wallace said. "But if it is a blanket proposal, we just can't support that."
John Ellement can be reached at [email protected]. Jonathan Saltzman can be reached at [email protected]
© Copyright 2009 The New York Times Company
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