Firearms License Review Board meeting minutes - *head explosion warning*

[Mike S]

Give it a read if you dare, there's so much bad info on here it's almost inconceivable.

http://www.mass.gov/eopss/agencies/dcjis/flrb-meeting-minutes-april-2015.pdf

 

[Varmint]

Give it a read if you dare, there's so much bad info on here it's almost inconceivable.

http://www.mass.gov/eopss/agencies/dcjis/flrb-meeting-minutes-april-2015.pdf

It's only 2 pages.

 

[dbott63]

I think the head exploding part is...

"Michaela Dunne, DCJIS Manager of Law Enforcement & Justice Services, updated the Board regarding the recognition of Board decisions by the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF). Through informal discussion, the ATF has stated that they will no longer recognize Board decisions and that petitioners who are found suitable will remain federally prohibited from possessing firearms due to the Courts decision in Logan v. US, 552 US 23 (2007). In Logan, the court found that because civil rights were never lost, they cannot be restored."

 

[Mike S]

That's half, the other part would be regarding Gemme v. Holden and the "suitability" standard which can no longer be used according to law.

Once again they've no effing clue what the laws are, yet they plow forward regardless.

 

[Len-2A Training]

Give it a read if you dare, there's so much bad info on here it's almost inconceivable.

http://www.mass.gov/eopss/agencies/dcjis/flrb-meeting-minutes-april-2015.pdf

I'm not sure what you are referring to (perhaps see comments below).

The only things of note (new) to me was that 3 of the members are people I'd NEVER want hearing anything I were ever to bring forth to any group of voting people! Atty Ryan's leaving is a good thing, but unsure wrt her replacement (could be better or worse).

I think the head exploding part is...

Nothing new here. I recall Jason Guida back years ago telling me about his meeting with BATFE over this subject. He was extremely frustrated with their position. Spin forward a number of years and I discussed this with Michaela who was "hopeful" regarding convincing BATFE to change their position.

As much as I'd like the answer to be different, when I teach my MA Gun Law Seminar, I point out to my students WHY the decision by BATFE is valid given what is printed on the 4473 form. I suggest that folks here read the instructions on that form wrt restoring rights . . . it is very clear. Since MA does not take away the right to vote, hold public office (state house would be close to empty) or right to serve on a jury, FLRB indeed can not restore those rights which is what the Feds use as their litmus test.

I'm unsure if it would take a re-write of US Code (never going to happen) or CFR (also highly unlikely) to change that position.

So again, there is nothing new in that statement except that Michaela went to bat and also struck out. I'll give her (and Jason before her) for trying.

 

[Mike S]

The way I read the BATFE language is this:

If MA finds someone unsuitable and the FLRB overturns that and issues a license, the BATFE will continue to deny rights to that person.

That same person could most likely purchase a firearms with no issue in any free state.

Then there's the clearly wrong agreement with Logan which is also a cluster****.

Hence the "head explode"

What am I missing or misreading?

 

[Len-2A Training]

Just spoke with Michaela and it is NOT good news.

The wording about restoration of rights is in the US Code (and thus will never change in our favor, as it requires Congress to change the law and would be political suicide).

Unsure if anything has really changed wrt prosecutions for people with FLRB restoration however. Both FBI and BATFE are involved in this.

What I will say is that when you try to buy and are denied, you are "flagged" and LE may well be notified.

So Mike, if someone from MA with FLRB restoration were to purchase in a free state from a dealer and the particular crime was one recognized federally as "PP status", you still would be denied. IIRC there are some crimes in MA which don't elevate to the federal level and thus may be AOK anywhere with a FLRB restoration.

 

[Mike S]

Just spoke with Michaela and it is NOT good news.

The wording about restoration of rights is in the US Code (and thus will never change in our favor, as it requires Congress to change the law and would be political suicide).

Unsure if anything has really changed wrt prosecutions for people with FLRB restoration however. Both FBI and BATFE are involved in this.

What I will say is that when you try to buy and are denied, you are "flagged" and LE may well be notified.

So Mike, if someone from MA with FLRB restoration were to purchase in a free state from a dealer and the particular crime was one recognized federally as "PP status", you still would be denied. IIRC there are some crimes in MA which don't elevate to the federal level and thus may be AOK anywhere with a FLRB restoration.

This is exactly what I'm referring to, not to mention the "Chiefs Discretion" BS which is clearly not a federal no-no.

Basically we have the feds applying law differently depending on what state you live in, it's BS, hence the head explode.

 

[terraformer]

Just spoke with Michaela and it is NOT good news.

The wording about restoration of rights is in the US Code (and thus will never change in our favor, as it requires Congress to change the law and would be political suicide).

Unsure if anything has really changed wrt prosecutions for people with FLRB restoration however. Both FBI and BATFE are involved in this.

What I will say is that when you try to buy and are denied, you are "flagged" and LE may well be notified.

So Mike, if someone from MA with FLRB restoration were to purchase in a free state from a dealer and the particular crime was one recognized federally as "PP status", you still would be denied. IIRC there are some crimes in MA which don't elevate to the federal level and thus may be AOK anywhere with a FLRB restoration.

There had been a gentlemens agreement that they wouldn't prosecute people who had been restored unless they had screwed up (see caron). That's gone and they will now go after everyone they find. That's a big difference.

 

[Beansie]

Can I get a dumb person's cliff's here?

I think I get it, but not sure. Maybe a sports analogy?

Thanks for spoon feeding me in advance.

 

[Rob Boudrie]

That same person could most likely purchase a firearms with no issue in any free state.

Negative, they would still be flagged as a PP in NICS.

I have seen the NICS denial appeal denial from an individual with a MA OUI (misdafelony - MA misdemenanor with > 2 year possible sentence).

Basically we have the feds applying law differently depending on what state you live in, it's BS, hence the head explode.

They apply it consistently - any state offense that is a felony, misdemeanor crime of domestic violence, or misdemeanor punishable by > 2 years is considered a felony for the purposes of 18 USC 922(g). The difference is in MA - a very common sentence limit for a trivial misdemeanor is 2.5 years - even though almost no one get that.

What is needed is a court decision that loss of gun rights is a loss of civil rights. The Logan standard (Vote, Hold public office, Serve on a Jury) touches of two of the boxes of freedom (ballot box, jury box), but ignore one of the others (cartridge box).

 

[Mike S]

Rob, what am I missing, here's what I'm not understanding.

Person A. applies for license, gets denied on chiefs discretion "just because", appeals to FLRB, wins, gets license. When he goes to buy gun would he then be denied during NICS because of the original denial?

How can person A. be declined during NICS if they are not a PP?

Also, if person A lived in a free state they would never get the denial on a license, or the ensuing denial by NICS, so that's what I'm seeing as an unequal application of the law.

 

[LoginName]

Rob, what am I missing, here's what I'm not understanding.

Person A. applies for license, gets denied on chiefs discretion "just because", appeals to FLRB, wins, gets license. When he goes to buy gun would he then be denied during NICS because of the original denial?

FLRB doesn't review discretionary denials by the CLEO, they only hear and decide on misdemeanor convictions...

http://www.goal.org/masslawpages/masslawdenialinfo.html

And even if the FLRB gives the green light, the CLEO can still statutorily deny the licensee

How can person A. be declined during NICS if they are not a PP?

Also, if person A lived in a free state they would never get the denial on a license, or the ensuing denial by NICS, so that's what I'm seeing as an unequal application of the law.

They would if they were ever convicted in any state of a crime punishable by more than 2 years jail time regardless of what state they reside in
l

 

[Mike S]

FLRB doesn't review discretionary denials by the CLEO, they only hear and decide on misdemeanor convictions...

http://www.goal.org/masslawpages/masslawdenialinfo.html

And even if the FLRB gives the green light, the CLEO can still statutorily deny the licensee




They would if they were ever convicted in any state of a crime punishable by more than 2 years jail time regardless of what state they reside in
l

Ah, thanks, yes, that's what I was missing.

So, a right denied then restored by the FLRB is not permissible, but a right denied and restored by the courts IS permissible in the eyes of the BATFE?

Another double standard?

 

[MetalgodZ]

One thing I've always been shaky on...

Anyone convicted in any other state of something that would fall under MA "misdafelony" status would be denied the right to purchase/possess a pistol in MA, correct?

Given that, how does the prohibition not automatically apply to EVERYONE IN THE US who's been convicted under the same?

 

[Rob Boudrie]

Ah, thanks, yes, that's what I was missing.

So, a right denied then restored by the FLRB is not permissible, but a right denied and restored by the courts IS permissible in the eyes of the BATFE?

Another double standard?

The only way courts "restore the right" of a prohibited person is by re-opening the case and closing it with an alternate disposition (revise and revoke). This rarely happens without cooperation from the ADA.

 

[Len-2A Training]

Mike, a "suitability" denial never makes someone a PP anywhere. If they moved to another town in MA, they might get their LTC. If they move out of MA, no issue buying from dealers. If they were to buy a long gun (theoretically) from a dealer in another state, they would pass NICS (dealer shouldn't sell it without FID/LTC, but that is a different issue).

PP in the eyes of the Feds only comes after a conviction for a crime with a >2 year sentence possible (or Misdemeanor Domestic Violence).

 

[drgrant]

One thing I've always been shaky on...

Anyone convicted in any other state of something that would fall under MA "misdafelony" status would be denied the right to purchase/possess a pistol in MA, correct?

No, at least not statutorily. In other words if some guy gets first offense DUI in some random state and, in THAT state, and say, for example, it's only a misdemeanor with a max potential of 6 months in in jail for first offense, it's not going to trigger the MA trap if he moves here later. He's still going to have garbage to deal with on his app, but he wouldn't be statutorily disqualified. Not to mention if the other state is less retarded than MA is, and its possible for the person to pursue an expungement in that state, get it expunged and get paperwork, then he still has to disclose, but then can argue that for legal purposes, it never happened.

-Mike

 

[MetalgodZ]

No, at least not statutorily. In other words if some guy gets first offense DUI in some random state and, in THAT state, and say, for example, it's only a misdemeanor with a max potential of 6 months in in jail for first offense, it's not going to trigger the MA trap if he moves here later. He's still going to have garbage to deal with on his app, but he wouldn't be statutorily disqualified. Not to mention if the other state is less retarded than MA is, and its possible for the person to pursue an expungement in that state, get it expunged and get paperwork, then he still has to disclose, but then can argue that for legal purposes, it never happened.

-Mike

Right.

But what I'm talking about is a situation where someone is convicted in any other state of a crime with a 1 1/2 year maximum. That conviction makes them ineligible to be issued an LTC in MA, ever, whether they live here and are ineligible for a resident LTC, or don't live here and are ineligible for a nonres LTC.

The MA prohibition on someone with that type of conviction doesn't specify that the conviction occur in MA.

Why would a conviction for a resident of another state not immediately trigger the federal felon ineligibility due to the person's permanent ineligible status in MA?

 

[drgrant]

Right.

But what I'm talking about is a situation where someone is convicted in any other state of a crime with a 1 1/2 year maximum. That conviction makes them ineligible to be issued an LTC in MA, ever, whether they live here and are ineligible for a resident LTC, or don't live here and are ineligible for a nonres LTC.

The MA prohibition on someone with that type of conviction doesn't specify that the conviction occur in MA.

If a crime carries over a year max possible prison sentence it has nothing to do with MA bullshit, it automatically triggers the federal prohibition. Which is blanket. You're screwed everywhere at that point unless you can get an expungement/pardon/etc from wherever the offense occurred. This has NOTHING to do with what MA legal system thinks about the guys crimes.

The key issue here (that makes things more confusing than normal) is MA is completely ****ing retarded. Most states have misdemeanors- that fall under that bar and don't become PP crimes. Or they have felonies which fall way above that bar (which do become disabling convictions). MA is uniquely retarded in the respect that it has misdemeanors which trigger a felony equivalent loss of rights. It also is retarded in the respect that its very poor about offering options for relief from disability. (EG MA has no expungement mechanism.) The FLRB procedure was basically a wallhack of sorts to allow the FLRB to override state law on a case by
case basis in terms of issuing licenses. Problem is the wallhack didn't truely nullify the offense; and the feds are now arguing that this wallhack is not good enough to restore rights because of a stupid technicality.

There's also the lautenberg amendment garbage, which counts everywhere- any domestic violence misdemeanor, anywhere, is a federal DQ.

Also worth noting... there are various other crimes in other states that fit under the misdemeanor 1 year bar that might DQ someone under MA law, but yet at the same time not trigger a blanket federal DQ. (for example, various weak drug possesion, or menial crimes involving weapons/firearms/etc).

Why would a conviction for a resident of another state not immediately trigger the federal felon ineligibility due to the person's permanent ineligible status in MA?

There is no magic bullet link between two states laws in this regard unless a specific offense rises to the level that triggers the federal prohibition. The MA DUI example is one that does.

-Mike

 

[MetalgodZ]

I thought that the issue was that after a conviction, you could eventually get back the right to get an FID and long arms, but not an LTC and a pistol...And that's why the ATF considered you a PP still.

Or am I thinking of another situation?

(The fact that this even needs to be discussed is obscene.)

 

[drgrant]

I thought that the issue was that after a conviction, you could eventually get back the right to get an FID and long arms, but not an LTC and a pistol...And that's why the ATF considered you a PP still.

The FID 5 year thing is another wallhack, although far dirtier than the FLRB option. We used to call this the FID felony trap. Felons can get FID cards. (I honestly don't know WTF they would do with them, although I'm guessing it would allow them to legally possess primitive firearms in MA for hunting, possibly. ) This "restoration" with the FID thing was automatic pending a clock running out w/no further convictions. In contrast, the FLRB procedure was very clearly intended to allow for a form of due process to restore rights much like an expungement hearing or whatever. The FID thing involved no due process at all. It's also worth noting that theres a laundry list of crap scenarios where FID could be recovered but FLRB still would never even consider an application for an LTC review. FLRB had a bunch of strict criteria, eg, there is a "small window" of stupid crimes you could attempt to get relief from. If the offense you committed fell outside this window, they wouldn't even consider your application. (EG they might consider some poor bastard that got a 1.5 yr misdafelony for DUI but if it was for something actually bad like a violent crime you could forget about it. ) I forget what all the guidelines are offhand, probably published on the site somewhere.

In my mind the two issues are nowhere near related/linked.

-Mike

 

[fishgutzy]

Mike, a "suitability" denial never makes someone a PP anywhere. If they moved to another town in MA, they might get their LTC. If they move out of MA, no issue buying from dealers. If they were to buy a long gun (theoretically) from a dealer in another state, they would pass NICS (dealer shouldn't sell it without FID/LTC, but that is a different issue).

PP in the eyes of the Feds only comes after a conviction for a crime with a >2 year sentence possible (or Misdemeanor Domestic Violence).

I have seen that Lowell defines "suitable" as someone who has already been a verifiable victim of a violent crime, unless one is an elected official, a business owner, of a police officer.

 

[OfficerObie59]

The only way courts "restore the right" of a prohibited person is by re-opening the case and closing it with an alternate disposition (revise and revoke). This rarely happens without cooperation from the ADA.

And even then, revise and revokes are technically supposed to be done within a certain time period of the original disposition (60 days, IIRC) and it's only supposed to alter the actual punishment imposed.

But many judges do a wink and a nod in order to do right by someone who got porked by the system.

 

[Len-2A Training]

I thought that the issue was that after a conviction, you could eventually get back the right to get an FID and long arms, but not an LTC and a pistol...And that's why the ATF considered you a PP still.

Or am I thinking of another situation?

(The fact that this even needs to be discussed is obscene.)

This WAS true as Mike explained. However, the 8/14/2014 gun law changed that. If you are statutorily prohibited in MA from getting a LTC, you can NO LONGER get an FID either, period. It avoids the FID Federal Felony PP trap.

 

[Mike S]

This WAS true as Mike explained. However, the 8/14/2014 gun law changed that. If you are statutorily prohibited in MA from getting a LTC, you can NO LONGER get an FID either, period. It avoids the FID Federal Felony PP trap.

Thanks for the earlier explanation.

Regarding the above, in light of the BATFE's recent position it doesn't sound like the change in law makes any difference as the BATFE will deny anyways, no?

 

[Len-2A Training]

Thanks for the earlier explanation.

Regarding the above, in light of the BATFE's recent position it doesn't sound like the change in law makes any difference as the BATFE will deny anyways, no?

Yes, BATFE would deny. However some with FIDs that were federally PP were prosecuted and convicted by feds for possession in the past.

Now it seems those with FLRB restoration (and fit the Fed PP status) will also be prosecuted (and it seems that there was a "gentleman's agreement" not to prosecute in the past).

 

[M1911]

Let's stay on topic and avoid personal attacks.

 

[Len-2A Training]

.

 

[PATRON]

I have a interesting question,the FLRB restored your rights now they gave you the right to own a gun, but the FEDS still say your a felon.So isn't the FLRB guilty of allowing a felon to possess a gun?