ERPO: must your turn in guns from out of state?

[Reptile]

Due to the ERPO law, many people from Mass will be storing guns out of state.
If an ERPO is issued against you, the state will ask for all your guns.
They may even have a list of your FA10's.

When they come to your house they will demand you open all safes or else they will crack them.

If guns are stored out of state, can the state of Massachusetts compel you to get them?

If they ask, I suppose you have the right to remain silent, correct?

 

[drgrant]

Due to the ERPO law, many people from Mass will be storing guns out of state.
If an ERPO is issued against you, the state will ask for all your guns.
They may even have a list of your FA10's.

When they come to your house they will demand you open all safes or else they will crack them.

If guns are stored out of state, can the state of Massachusetts compel you to get them?

If they ask, I suppose you have the right to remain silent, correct?

Since ERPOs don't travel yet, they can't compel anyone to do shit out of
state, because the ERPO law doesn't have "orbital" authority like the Lautenberg
amendment does.

This is best discussed with a firearm attorney, though.

-Mike

 

[ridleyman]

I'm pretty sure that all of the guns out of state have been lost, stolen, drowned...........

 

[amm5061]

I'm pretty sure that all of the guns out of state have been lost, stolen, drowned...........

What guns? I don't own any guns.

 

[Boston4567]

I wonder what happens if your girlfriend/wife has an LTC?

In theory you can transfer possession of your guns to them by having them change the safe's combo to something you don't know. Either way the cops certainly have no right to take away any guns she owns. But something tells me they will... after all, can't have any guns in the household when you're a significant extreme risk, right?

 

[amm5061]

I wonder what happens if your girlfriend/wife has an LTC?

In theory you can transfer possession of your guns to them by having them change the safe's combo to something you don't know. Either way the cops certainly have no right to take away any guns she owns. But something tells me they will... after all, can't have any guns in the household when you're a significant extreme risk, right?

They steal it all. Everything must go, doesn't matter who owns it. Same as any other firearms theft that gets conducted in this state.

 

[Boston4567]

Another shit thing about this law is, I think it's going to be impossible to get this law struck down in court, no matter how unconstitutional, because of prudential rules around the way cases are adjudicated. At least, unless MA courts get really stupid in practice about applying the law and refuse to fix their mistakes, leaving an opening for fed courts to strike them down.

Here's the scenarios as I see them:

1) Average Joe doesn't like this law, sues right after it passes in state or fed court ---> Joe doesn't have standing because no ERPO against him
2) Wife takes out patently frivolous ERPO --> District Court rubber stamps, issues --> Husband appeals to MA Appeals Court, claims law is unconstitutional --> MA Appeals Court practices constitutional avoidance, overturns frivolous ERPO on as-applied basis, constitutional challenge mooted
3) Wife takes out legitimate ERPO against obviously dangerous person --> District Court issues --> Husband appeals to MA Appeals Court, claims law is unconstitutional --> poor test case, MA Appeals Court practices constitutional avoidance, says standard of proof and "risk" criteria is irrelevant because order would pass scrutiny even if the law used "clear and convincing" standard and "significant risk" criteria, case dismissed
4) Wife takes out patently frivious ERPO --> District Court rubber stamps, issues --> Husband tries to sue directly in Fed court --> Case dismissed, husband must exhaust state appeals before asking the feds for help.
5) Wife takes out patently frivious ERPO --> District Court rubber stamps, issues --> Husband appeals to MA Appeals Court, claims law is unconstitutional --> MA Appeals Court rubber stamps, SJC doesn't take case --> Husband sues in fed court --> ERPO expires and isn't renewed, case mooted before it's heard

Basically, once the courts fix your particular problem, they don't care that the law is unconstitutional and that you had to spend lots of money to get it fixed. In other cases, the person is a bad test case because the order has merit, so they sidestep constitutionality. If the order expires before adjudication, case mooted.

Comm2a's perspective would be interesting; I think they run into this problem with challenging LTC denials. The state can put together a Rube Goldberg machine that you have to pour money into to get justice, but as long as you get it, you can't challenge the law.

 

[amm5061]

Another shit thing about this law is, I think it's going to be impossible to get this law struck down in court, no matter how unconstitutional, because of prudential rules around the way cases are adjudicated. At least, unless MA courts get really stupid in practice about applying the law and refuse to fix their mistakes, leaving an opening for fed courts to strike them down.

Here's the scenarios as I see them:

1) Average Joe doesn't like this law, sues right after it passes in state or fed court ---> Joe doesn't have standing because no ERPO against him
2) Wife takes out patently frivolous ERPO --> District Court rubber stamps, issues --> Husband appeals to MA Appeals Court, claims law is unconstitutional --> MA Appeals Court practices constitutional avoidance, overturns frivolous ERPO on as-applied basis, constitutional challenge mooted
3) Wife takes out legitimate ERPO against obviously dangerous person --> District Court issues --> Husband appeals to MA Appeals Court, claims law is unconstitutional --> poor test case, MA Appeals Court practices constitutional avoidance, says standard of proof and "risk" criteria is irrelevant because order would pass scrutiny even if the law used "clear and convincing" standard and "significant risk" criteria, case dismissed
4) Wife takes out patently frivious ERPO --> District Court rubber stamps, issues --> Husband tries to sue directly in Fed court --> Case dismissed, husband must exhaust state appeals before asking the feds for help.
5) Wife takes out patently frivious ERPO --> District Court rubber stamps, issues --> Husband appeals to MA Appeals Court, claims law is unconstitutional --> MA Appeals Court rubber stamps, SJC doesn't take case --> Husband sues in fed court --> ERPO expires and isn't renewed, case mooted before it's heard

Basically, once the courts fix your particular problem, they don't care that the law is unconstitutional and that you had to spend lots of money to get it fixed. In other cases, the person is a bad test case because the order has merit, so they sidestep constitutionality. If the order expires before adjudication, case mooted.

Comm2a's perspective would be interesting; I think they run into this problem with challenging LTC denials. The state can put together a Rube Goldberg machine that you have to pour money into to get justice, but as long as you get it, you can't challenge the law.

I thought part of the bullshit in this law was that they removed your ability to even appeal the order in regular court? Or did they put that back in? So essentially you couldn't even contest it except in a special marsupial court.

 

[mothybee]

How about a 2 year mandatory sentence for taking out a frivolous ERPO.

 

[amm5061]

How about a 2 year mandatory sentence for taking out a frivolous ERPO.

Death sentence would be better.

 

[Horrible]

How about a 2 year mandatory sentence for taking out a frivolous ERPO.

I thought that the max fine was like $2,500. Amendments to increase the fine were quickly snuffed out by the voice-voting cowards in our state Senate.

 

[Matt-CZ]

This could get hairy. There's a difference between ownership and possession as well. The firearms attorney I consulted when I moved here went into this a bit with me. Since I could not possess a firearm without a license, I put them into the possession of someone in MA who could, but still retained ownership. I took possession back once I had my license, but I had no control of the firearms while I was unlicensed. Who knows if guns that were owned but not under control would be required to be surrendered.

 

[firestorm]

This could get hairy. There's a difference between ownership and possession as well. The firearms attorney I consulted when I moved here went into this a bit with me. Since I could not possess a firearm without a license, I put them into the possession of someone in MA who could, but still retained ownership. I took possession back once I had my license, but I had no control of the firearms while I was unlicensed. Who knows if guns that were owned but not under control would be required to be surrendered.

In theory as long as they are out of state and you keep your face shut about it they can't do anything to get them as this is a state issue only and does not make you a fed PP. But as always YMMV and talk with a lawyer before doing anything based on internet assumptions.

 

[Boston4567]

I thought part of the bullshit in this law was that they removed your ability to even appeal the order in regular court? Or did they put that back in? So essentially you couldn't even contest it except in a special marsupial court.

In the House bill, they never removed the ability to appeal to a higher court, that was there as of right. And they added a provision to expedite those appeals. They removed the provision that explicitly permitted one follow-up hearing to lift the order, but then added back the ability to make a motion for a new hearing without a limit on the number of times you can make that motion. It was a net win on both issues.

I haven't reviewed the original Senate bill enough to know exactly what the deal is there, but I don't think there were any amendments passed that related to appeals

 

[amm5061]

In theory as long as they are out of state and you keep your face shut about it they can't do anything to get them as this is a state issue only and does not make you a fed PP. But as always YMMV and talk with a lawyer before doing anything based on internet assumptions.

Does it though? I can see this possibly being stretched so that they're covered under that pesky restraining order question on the 4473

 

[milktree]

Does it though? I can see this possibly being stretched so that they're covered under that pesky restraining order question on the 4473

But there's nothing in it about restraining anyone. It's *entirely* about gun confiscation.

If it was about someone being a threat to themselves or someone else, there would be some language about hospitalization (harm to self); or arrest or restriction of movement (harm to others)

But there's nothing in it preventing anyone from going anywhere or doing anything; it's not a restraining order, it's a "becuz gunz" confiscation order.

If it was about risk, or protection, they'd arrest you.

 

[amm5061]

But there's nothing in it about restraining anyone. It's *entirely* about gun confiscation.

If it was about someone being a threat to themselves or someone else, there would be some language about hospitalization (harm to self); or arrest or restriction of movement (harm to others)

But there's nothing in it preventing anyone from going anywhere or doing anything; it's not a restraining order, it's a "becuz gunz" confiscation order.

If it was about risk, or protection, they'd arrest you.

I completely agree--this has nothing to do with helping anyone--but don't underestimate the dishonesty and corruption of our politicians.

 

[Boston4567]

Does it though? I can see this possibly being stretched so that they're covered under that pesky restraining order question on the 4473

No matter what, you're under no legal requirement to say anything other than "these are the only guns in my possession" when they come to your house with an order. It would be foolish to say anything else, in fact.

If it turns out it does make you a fed PP, it's in your discretion to decide what to do. Have a friend or family member in that state take possession; if you have a wife or girlfriend just give her the keys to the gun safe in NH or have her change the combo.

Regardless, if the guns are out of state, they're beyond the physical and practical reach of MA. Mass. LEOs can't invade NH, they can't make you go get them (would be illegal), and somehow I doubt NH law would allow MA to order NH courts to serve up a warrant to confiscate firearms.

Not that any of this is relevant. You lost those guns on Lake Winnipesaukee in that tragic boating accident, remember?

 

[firestorm]

No matter what, you're under no legal requirement to say anything other than "these are the only guns in my possession" when they come to your house with an order. It would be foolish to say anything else, in fact.

If it turns out it does make you a fed PP, it's in your discretion to decide what to do. Have a friend or family member in that state take possession; if you have a wife or girlfriend just give her the keys to the gun safe in NH or have her change the combo.

Regardless, if the guns are out of state, they're beyond the physical and practical reach of MA. Mass. LEOs can't invade NH, they can't make you go get them (would be illegal), and somehow I doubt NH law would allow MA to order NH courts to serve up a warrant to confiscate firearms.

Not that any of this is relevant. You lost those guns on Lake Winnipesaukee in that tragic boating accident, remember?

Unfortunately if this goes federal it will do just that. NH LEO's will confiscate guns that are yours being kept in NH if you are under a 209A due to lautenberg. This doesn't have that reach, yet, but if it is somehow enshrined in federal law then your only option is to sell them off before they are taken so that you are not in possession or own them. Once you are out from under the nonsense and no longer a fed PP then you go about rebuilding your collection.

 

[Boston4567]

Unfortunately if this goes federal it will do just that. NH LEO's will confiscate guns that are yours being kept in NH if you are under a 209A due to lautenberg. This doesn't have that reach, yet, but if it is somehow enshrined in federal law then your only option is to sell them off before they are taken so that you are not in possession or own them. Once you are out from under the nonsense and no longer a fed PP then you go about rebuilding your collection.

Fair point about restraining orders, but PP prohibits possession, not ownership, so no need to sell if you have someone who will hold them for you.

And there's no reason to volunteer any information to LE other than giving up what's in your home. They can't take what they don't know about.

 

[TayNinh_66]

Expect gestapo to show up with a list from FRB. They will demand all of the guns on the list. They are not going to get into a debate about your LTC being "revoked" or "surrendered" or "suspended" You can show them a bill of sale indicating you transferred ownership to someone else along with EFA-10 or proof of a notification of loss and they will not dig up your backyard with a backhoe. Claiming you don't have a firearm that is on the FRB list is going to have you back before the judge on a contempt motion with the potential for a 3 year prison sentence. Good luck with that.

This can all be done ex parte so the first notice you receive that you're firearms are being confiscated is a knock on the door. If you think your PO'd girlfriend is filing a petition then you better start transferring ownership and possession to someone with an LTC. (Make sure your 80 year old mother has an LTC)

 

[amm5061]

Expect gestapo to show up with a list from FRB. They will demand all of the guns on the list. They are not going to get into a debate about your LTC being "revoked" or "surrendered" or "suspended" You can show them a bill of sale indicating you transferred ownership to someone else along with EFA-10 or proof of a notification of loss and they will not dig up your backyard with a backhoe. Claiming you don't have a firearm that is on the FRB list is going to have you back before the judge on a contempt motion with the potential for a 3 year prison sentence. Good luck with that.

This can all be done ex parte so the first notice you receive that you're firearms are being confiscated is a knock on the door. If you think your PO'd girlfriend is filing a petition then you better start transferring ownership and possession to someone with an LTC. (Make sure your 80 year old mother has an LTC)

Eat a dick and bring on the backhoe. Good luck, and have fun when you hit the septic system.

 

[firestorm]

Fair point about restraining orders, but PP prohibits possession, not ownership, so no need to sell if you have someone who will hold them for you.

And there's no reason to volunteer any information to LE other than giving up what's in your home. They can't take what they don't know about.

The issue there is mass law. IIRC there is a provision that when your license is revoked (Maybe just for 209a) that you must surrender all firearms you own or you will be facing state jail time for violation. Federal law may allow you to own, but not possess but state law will put the boots to you for it.

 

[JayMcB]

How about a 2 year mandatory sentence for taking out a frivolous ERPO.

Would be applied about as frequently as Bartley Fox on an illegal

 

[drgrant]

Regardless, if the guns are out of state, they're beyond the physical and practical reach of MA. Mass. LEOs can't invade NH, they can't make you go get them (would be illegal), and somehow I doubt NH law would allow MA to order NH courts to serve up a warrant to confiscate firearms.

They do this under Lautenberg all the time, either by something that's actually buried in US code or via some kind of "reciprocal courtesy". Years ago there
was a member here whose ex lived in MA, and he lived like 2 hrs away from her in NH, and she still pulled an RO on him, and the local PD in NH showed up to
steal his shit, which he didn't get back until the RO was vacated. Lautenberg DV ROs are pretty much "Orbital" and applicable across the whole country. I am unaware of any state that would refuse to service a remote Lautenberg gun confiscation. (although someone in LE or a lawyer here may know otherwise?) Particularly given that a DV RO makes one a federally prohibited person on trigger. I can't see ERPO being that way unless they pass it federally, or both states have an ERPO like system and they agree to do "courtesy work" for one another.

-Mike

 

[drgrant]

Claiming you don't have a firearm that is on the FRB list is going to have you back before the judge on a contempt motion with the potential for a 3 year prison sentence. Good luck with that.

LOL, so if someone has guns on their list that they sold years ago and can't remember what dealer or who they sold them to, then they're on the
hook? Where is that printed in the law? (that you are compelled to maintain paperwork for guns you sold) Or are you suggesting that the courts basically don't care and will just imprison you based on "thoughts and feelings" rather than actual proof that you "still have guns". A gun appearing on a list generated by the states horrible database that is never cleaned in any way isn't really proof. Then again the more heinous shit I see in this state the more I realize the
state doesn't really abide by any sense of actual due process in anything it does.

Of course a lot of it depends on the LEOs in question. I know some LEOs take the approach that if it appears the LTC holder is acting in good
faith - eg surrendering whatever guns they have etc, that they're not going to go full retard over a few loose ends based on information gleaned from a
horribly run, unclean government database.

-Mike

 

[fshalor]

They steal it all. Everything must go, doesn't matter who owns it. Same as any other firearms theft that gets conducted in this state.

I believe there is another thread on this. It indicated the sheriff co operation in the remote town as the key factor.

 

[drgrant]

Does it though? I can see this possibly being stretched so that they're covered under that pesky restraining order question on the 4473

An ERPO is not a "domestic violence restraining order" as defined by federal law and would not be covered under Lautenberg.

That said, it's worth noting that ultimately, that one distinction is the entire reason the antis are pushing this bullshit- they want ERPO to become JUST like Lautenberg; that's going to be their next argument after they infect a bunch of state level lawbooks with this bullshit- they're going to argue that "It should be federal law" blah blah, bray bray, etc. They want to be able to disarm people at a whim anywhere in america for saying or thinking something they don't like,
etc.

-Mike

 

[Asaltweapon]

You can sell guns f to f in other states without any paperwork.

If they were legal to own and possess elsewhere (another residence falling under the guidelines set by ATF) then why is it not OK to transfer ownership?

Like Mike said above it's not a case of being issued a restraining order.

 

[Len-2A Training]

How about a 2 year mandatory sentence for taking out a frivolous ERPO.

Just like all the lying in divorce actions. Nobody every gets prosecuted and it won't happen here either.

In theory as long as they are out of state and you keep your face shut about it they can't do anything to get them as this is a state issue only and does not make you a fed PP. But as always YMMV and talk with a lawyer before doing anything based on internet assumptions.

The issue there is mass law. IIRC there is a provision that when your license is revoked (Maybe just for 209a) that you must surrender all firearms you own or you will be facing state jail time for violation. Federal law may allow you to own, but not possess but state law will put the boots to you for it.

MGL C. 269 S. 10 (some subsection) makes it a felony NOT to tell PD WHERE all guns/ammo/mags are (regardless of it being in another state) instantly. What a remote PD may do if contacted and ask to confiscate on an ERPO is another matter. But here silence will get you a state prison sentence and Fed PP status for life. This is true in MGL for ANY suspension/revocation, not just for 209As.

You can sell guns f to f in other states without any paperwork.

Federal felony to do FTF between 2 parties that don't live in the same state.