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Sunday morning one of my LE organizations held a meeting where our guest speaker was an Associate Justice in one of the MA Superior Courts. [Names and locations are intentionally not stated.]
Another member raised the issue of cops that suddenly became retroactively disqualified from ever possessing a gun (slightly incorrect, because law allows a chief to make an "on duty only" exception for LEOs). His public response was that judges can NOT Overrule a Legislative act (law), except ONLY on very strictly narrow grounds of Constitutionality.
I didn't get to ask my question (follow-up on above) during the public Q&A but did get to talk with this judge 1-on-1 about it after his speech and Q&A ended. His reaction (he was basically unaware of the onerous ramifications of Ch. 180) deeply concerns me.
I painted a few scenarios for him about the ex-post-facto provisions of Ch. 180 regarding Constitutionality and I could see that I really got him thinking about it! [Many thanks to GOAL and Ron Glidden for providing these real scenarios publicly.]
- During the Vietnam War, a Veteran returns and goes into a bar wearing some article of military clothing (lots of folks wore their jackets). He's attacked and accused of being a "baby killer" and a fist-fight ensues. Veteran is arrested and charged with simple assault (no weapons). Pleads and pays $25 fine and goes on in life, with no legal troubles ever after that event. Fast forward to 1998 and the Ch. 180 law has an "infinite look-back provision". Suddenly our Veteran is denied on renewal of his LTC as "statutorily lifetime disqualified" due to conviction 30 years earlier for a violent crime (simple assault)!
- Hunters frequently would lean their rifles/shotguns against the bumper of their car/truck and urinate before heading off into the woods. EPO comes along and cites them for "having a loaded rifle/shotgun IN A VEHICLE". The hunters typically paid the $25 fine rather than lose a day's pay to go to court. Many years later (infinite look-back), Ch. 180 becomes law and the hunter is denied his LTC renewal as "statutory lifetime disqualified" due to ANY conviction for a "gun crime"!
Had either of these two people known the ramifications that would ensue many years later from these charges, they probably would have fought the charges and likely prevailed. Something that was looked upon as not a serious crime when it occurred, became a "major crime" many years later and bites them a second time!
The first scenario had the judge really thinking hard that this might well be a Constitutional infringement, although he did not come out and say as much in words.
The second scenario got a definite reaction from the judge that the entire charge was inappropriate and should never have happened in the first place!
What most concerns me is that the judge was totally unaware of these "infinite look-back" provisions in the law and seemed to warm up to my idea that Ch. 180s provisions might be attackable as a Constitutional infringement.
In defense of the judge, he's hearing mostly appeals from convictions in the lower courts. Therefore unless an attorney makes an issue of what I mentioned above, these facts are never laid before the bench for consideration!
So, why do defense attorneys NOT raise these issues upon appeal?? [?] That seems to be the $64,000 question here.
Another member raised the issue of cops that suddenly became retroactively disqualified from ever possessing a gun (slightly incorrect, because law allows a chief to make an "on duty only" exception for LEOs). His public response was that judges can NOT Overrule a Legislative act (law), except ONLY on very strictly narrow grounds of Constitutionality.
I didn't get to ask my question (follow-up on above) during the public Q&A but did get to talk with this judge 1-on-1 about it after his speech and Q&A ended. His reaction (he was basically unaware of the onerous ramifications of Ch. 180) deeply concerns me.
I painted a few scenarios for him about the ex-post-facto provisions of Ch. 180 regarding Constitutionality and I could see that I really got him thinking about it! [Many thanks to GOAL and Ron Glidden for providing these real scenarios publicly.]
- During the Vietnam War, a Veteran returns and goes into a bar wearing some article of military clothing (lots of folks wore their jackets). He's attacked and accused of being a "baby killer" and a fist-fight ensues. Veteran is arrested and charged with simple assault (no weapons). Pleads and pays $25 fine and goes on in life, with no legal troubles ever after that event. Fast forward to 1998 and the Ch. 180 law has an "infinite look-back provision". Suddenly our Veteran is denied on renewal of his LTC as "statutorily lifetime disqualified" due to conviction 30 years earlier for a violent crime (simple assault)!
- Hunters frequently would lean their rifles/shotguns against the bumper of their car/truck and urinate before heading off into the woods. EPO comes along and cites them for "having a loaded rifle/shotgun IN A VEHICLE". The hunters typically paid the $25 fine rather than lose a day's pay to go to court. Many years later (infinite look-back), Ch. 180 becomes law and the hunter is denied his LTC renewal as "statutory lifetime disqualified" due to ANY conviction for a "gun crime"!
Had either of these two people known the ramifications that would ensue many years later from these charges, they probably would have fought the charges and likely prevailed. Something that was looked upon as not a serious crime when it occurred, became a "major crime" many years later and bites them a second time!
The first scenario had the judge really thinking hard that this might well be a Constitutional infringement, although he did not come out and say as much in words.
The second scenario got a definite reaction from the judge that the entire charge was inappropriate and should never have happened in the first place!
What most concerns me is that the judge was totally unaware of these "infinite look-back" provisions in the law and seemed to warm up to my idea that Ch. 180s provisions might be attackable as a Constitutional infringement.
In defense of the judge, he's hearing mostly appeals from convictions in the lower courts. Therefore unless an attorney makes an issue of what I mentioned above, these facts are never laid before the bench for consideration!
So, why do defense attorneys NOT raise these issues upon appeal?? [?] That seems to be the $64,000 question here.
![[wink]](/xen/styles/default/xenforo/smilies.vb/002.gif "Wink [wink]")
