Home Defense by Unlicensed Spouse (Castle Doctrine?)

[happilute]

Hello All,

I need some clarification. In Massachusetts, is a firearms license what is needed to grant you the permission to discharge a firearm? Or is its sole purpose for the purchasing of the firearm (so the state can keep a record of where it is and who it belongs to)?

I have been granted an Unrestricted Class A LTC in Worcester. My wife does not have a firearms license of any kind (FID or LTC). Hypothetically, if I am away from the home, and she is victim to a home invasion, is she protected under the "Castle Doctrine" if she were forced to take my firearm from the safe/locker and shoot the intruder that is threatening her life? i.e. Does my wife have to get an FID / LTC in order to use my firearm for self defense in our home?

All the posts that I have read (thus far) regarding the Castle Doctrine have had the basic caveat that the licensed individual is the one discharging the firearm. I am not well-versed in the legalese, so your advice is much appreciated.

Thanks,
Happy

 

[drgrant]

Yes, she needs to be licensed, period end. Otherwise if such an "event" occurred she could be charged with unlawful possession and you with unsafe storage, both of which are felonies. (that carry a lifetime poison pill of "prohibited person". )

There are other reasons she should be licensed anyways, namely, in case something happens to you she can lawfully take possession of your guns, move them about, etc.

To be clear, in MA you need a license (of the appropriate class) to do pretty much anything with a firearm unless:

-You;re being directly supervised by someone with a license.

-You're somehow covered by one of the very narrow exceptions written in MGL. (for example, on duty LE/Mil-under-orders, non-residents hunting with fudd guns, competition exemption, etc.

-You're transporting guns through the state in compliance with FOPA. (and not stopping in MA).

Most of the things in the 2nd category would NEVER cover you in a home defense scenario.

-Mike

 

[Racenet]

If your wife does not have an FID/LTC, she should not have access to the safe/locker to begin with. That pretty much answers your question right there.

 

[speedy]

Don't you love Massachusetts Laws, and how they have twisted the "REAL LAW" of the land.

 

[RKG]

I believe the relevant punitive statute to be G. L. (2010 ed.) ch. 269, sec. 10(a), which provides, in part:

"Whoever, except as provided or exempted by statute, knowingly has in his possession; or knowingly has under his control in a vehicle; a firearm, loaded or unloaded, as defined in section one hundred and twenty-one of chapter one hundred and forty without either:

(1) being present in or on his residence . . . [shall be punished]."

I therefore inquire as to the legal basis for asserting that an unlicensed spouse holding a firearm in her (or his) residence is a crime.

 

[RB101]

If your wife does not have an FID/LTC, she should not have access to the safe/locker to begin with. That pretty much answers your question right there.

Why is that? I keep other things in my safe besides firearms. Some of which my wife owns.

 

[OlSparky11B]

Sweet! Another reason with which I can harass my wife to get her citizenship, since Massachusetts treats its LEGAL resident aliens with far less regard concerning rights than it does ILLEGAL immigrants.

 

[drgrant]

I believe the relevant punitive statute to be G. L. (2010 ed.) ch. 269, sec. 10(a), which provides, in part:

"Whoever, except as provided or exempted by statute, knowingly has in his possession; or knowingly has under his control in a vehicle; a firearm, loaded or unloaded, as defined in section one hundred and twenty-one of chapter one hundred and forty without either:

(1) being present in or on his residence . . . [shall be punished]."

I therefore inquire as to the legal basis for asserting that an unlicensed spouse holding a firearm in her (or his) residence is a crime.

That would seem to contradict this:

http://www.malegislature.gov/Laws/GeneralLaws/PartI/TitleXX/Chapter140/Section129c

Section 129C. No person, other than a licensed dealer or one who has been issued a license to carry a pistol or revolver or an exempt person as hereinafter described, shall own or possess any firearm, rifle, shotgun or ammunition unless he has been issued a firearm identification card by the licensing authority pursuant to the provisions of section one hundred and twenty-nine B.

My guess would be that C269 (10) is older and there is some sort of a working contradiction there.

If what you assert is true, then de-facto possession at home of (pretty much anything) would be legal without a license, and move-ins would not need a grace period,
etc, because they would be "covered" indefinitely as long as the guns stayed in their house.

-Mike

 

[RKG]

That would seem to contradict this:

http://www.malegislature.gov/Laws/GeneralLaws/PartI/TitleXX/Chapter140/Section129c

Section 129C. No person, other than a licensed dealer or one who has been issued a license to carry a pistol or revolver or an exempt person as hereinafter described, shall own or possess any firearm, rifle, shotgun or ammunition unless he has been issued a firearm identification card by the licensing authority pursuant to the provisions of section one hundred and twenty-nine B.

My guess would be that C269 (10) is older and there is some sort of a working contradiction there.

If what you assert is true, then de-facto possession at home of (pretty much anything) would be legal without a license, and move-ins would not need a grace period,
etc, because they would be "covered" indefinitely as long as the guns stayed in their house.

-Mike

Massachusetts has a long history of enacting facially contradictory statutes, in part because most legislators are too lazy to learn what they should about the subject matter of statutes they draft, file, and vote for. Indeed, a whole body of law has arisen about how to deal with apparently contradictory statutes, which, if the enactment process were done better, we wouldn't need.

269/10(a) is not older, having been re-written in 1998 I believe. Prior to that time, there were separate criminal provisions for "owning" and "carrying," which were merged into a single provision at that time.

In all events, 140/129C is not a criminal statute, as no penalties are provided.

My guess is that, if the Court ever had to squarely face the possible inconsistency, 269/10(a) would prevail, for the following reasons:

A) 269/10(a) is a criminal statute, while 140/129C is not; and

B) In context, the introductory admonition of 140/129C is primarily a predicate for the reporting requirement; and

C) If all else fails, one of the aforementioned rules of statutory interpretation is that, in a criminal prosecution, any statutory ambiguity must be resolved in favor of the defendant.

 

[drgrant]

So violating 140/129C is a civil infraction?

What about Safe Storage? Couldn't the OP still get bagged for "Unsafe Storage" under 131L because his wife is still not a "lawfully authorized user" by any stretch?


-Mike

 

[KMaurer]

They don't really contradict one another. One section says that a particular set of acts (absent certain exclusions) constitute a violation of this section. The other section says that another set of acts (absent certain other exclusions) constitute a violation of that section.

Ken

 

[Knuckle Dragger]

Sweet! Another reason with which I can harass my wife to get her citizenship, since Massachusetts treats its LEGAL resident aliens with far less regard concerning rights than it does ILLEGAL immigrants.

Not for long. Your wife should be able to get her LTC shortly.

 

[terraformer]

RKG is right and to boot, there is a failsafe beyond lenity available to the unlicensed spouse. However, the license holder faces a possible storage charge but that would be a statutory reach based on 269 10(a) and the statutes use of the term authorized. I am one flight from home but when I get there I will post up more of my thinking.


That said, those claiming prosecutions will occur are not wrong, but we have to start separating out what charges someone will get and what actual laws they break (an the constitutionality of said laws if one was broken). I am getting sick if this state charging people because they dared to defend themselves.

 

[drgrant]

Well, I'm glad to know I'm at least half wrong.

I think the courts would flog some of it based on "doctrine of competing harms" but the anti-gun douchebag DAs in this state would still try to at least get the gun owner for something, IMO. I would still advocate that people being permitted is the legally safest way to go, at the moment.

Hopefully in the near future most of this will become moot as "mere possession in ones home" will be considered "always legal by default".

-Mike

 

[terraformer]

Btw, lenity is the "tie goes to the runner" concept that RKG mentioned. Yeah mike, you aren't wholly wrong but it is time we start calling a spade a spade and call out this thuggery for what it is.

 

[JFR2]

it is time we start calling a spade a spade and call out this thuggery for what it is.

I like the sound of that!!!

-JR

 

[namedpipes]

Why is that? I keep other things in my safe besides firearms. Some of which my wife owns.

Oh, you're going to have FUN figuring this out!

Abandon all logic, ye who enter here.

 

[RB101]

Oh, you're going to have FUN figuring this out!

Abandon all logic, ye who enter here.

I know, I know. I was just making a point- a person without a LTC can access a safe. I didn't say I agreed with her having the combo.
In addition to firearms I can only assume some/most people put other important items (wills, titles, jewelry, deeds, bullion, etc) in their safes. Besides the fact of shared property- what if a death, arrest, or serious illness were to occur and a significant other needed to access the safe.
You can't all tell me you are the only ones with the safe combo...half of you maybe. The rest are liars. Sorry to get off topic here 0P.

 

[Len-2A Training]

Well, I'm glad to know I'm at least half wrong.

I think the courts would flog some of it based on "doctrine of competing harms" but the anti-gun douchebag DAs in this state would still try to at least get the gun owner for something, IMO. I would still advocate that people being permitted is the legally safest way to go, at the moment.

Hopefully in the near future most of this will become moot as "mere possession in ones home" will be considered "always legal by default".

-Mike

I'm with Mike here. Many DAs would fry both of them, suck them dry of cash defending themselves against the charges. 90% of attorneys out there will recommend they take a plea bargain and they end up Prohibited Persons as a result, law be damned.

Fighting to the bitter end when you know you are right is frequently a bitter-sweet victory. You may win but the cost could be everything you own!

MUCH cheaper to just get all adults appropriately licensed and not have the legal battle to fight.

 

[Racenet]

Why is that? I keep other things in my safe besides firearms. Some of which my wife owns.

If there are firearms in there, you damn well know why.

 

[RB101]

If there are firearms in there, you damn well know why.

No I don't? Enlighten me. Hypothetically of course- I am meeting safe storage requirement laws. My wife is not handling firearms. She has access to her personal belongings in there. What does a shared household safe have to do with the 0P's question? Someone can access a safe without a LTC you know.

 

[mass]

My wife doesn't have my safe combination. She has no access to my guns or porn..

Sent from behind enemy lines using Tapatalk.

 

[mike93lx]

I'm surprised that this hasn't been pointed out yet, but Massachusetts does not have a "Castle Doctrine" like many other states. You do not have the right to shoot someone for simply crossing the threshold of your home...your life (or maybe the life of someone else in your home, I'm not 100% familiar with the exact legality) must be threatened.

 

[OfficerObie59]

I agree with the prevailing opinions regarding an unlicensed spouse put forth by Len and Terra.

With that said, while IANAL, it would likely not have any direct bearing on using a Castle Doctrine defense other than some possible evidence admission issues. The Castle Doctrine is not weapon specific; you can act under the Castle Doctrine using any weapon imaginable is a tool of immediate means, to include an unsecured firearm youre no licenced to posses. You may indeed face licensing penalties, but your theory of justification in the homicide trial should be unaffected.

My wife went through the class (coincidentally, co-taught by Len) so she could get her license to prevent, among other things, this very problem.

 

[qqac]

Massachusetts has a long history of enacting facially contradictory statutes, in part because most legislators are too lazy to learn what they should about the subject matter of statutes they draft, file, and vote for. Indeed, a whole body of law has arisen about how to deal with apparently contradictory statutes, which, if the enactment process were done better, we wouldn't need.

269/10(a) is not older, having been re-written in 1998 I believe. Prior to that time, there were separate criminal provisions for "owning" and "carrying," which were merged into a single provision at that time.

In all events, 140/129C is not a criminal statute, as no penalties are provided.

My guess is that, if the Court ever had to squarely face the possible inconsistency, 269/10(a) would prevail, for the following reasons:

A) 269/10(a) is a criminal statute, while 140/129C is not; and

B) In context, the introductory admonition of 140/129C is primarily a predicate for the reporting requirement; and

C) If all else fails, one of the aforementioned rules of statutory interpretation is that, in a criminal prosecution, any statutory ambiguity must be resolved in favor of the defendant.

GL ch. 269 s. 10 in subsection (h)(1) directly addresses ch. 140 s. 129C and provides criminal penalties for its violation.

(h)(1) Whoever owns, possesses or transfers a firearm, rifle, shotgun or ammunition without complying with the provisions of section 129C of chapter 140 shall be punished by imprisonment in a jail or house of correction for not more than 2 years or by a fine of not more than $500. Whoever commits a second or subsequent violation of this paragraph shall be punished by imprisonment in a house of correction for not more than 2 years or by a fine of not more than $1,000, or both. Any officer authorized to make arrests may arrest without a warrant any person whom the officer has probable cause to believe has violated this paragraph.

 

[OfficerObie59]

I'm surprised that this hasn't been pointed out yet, but Massachusetts does not have a "Castle Doctrine" like many other states. You do not have the right to shoot someone for simply crossing the threshold of your home...your life (or maybe the life of someone else in your home, I'm not 100% familiar with the exact legality) must be threatened.

Not quite, as what the other states have is not the castle doctrine, but instead something even better.

The MA castle doctrine (278/8A?) is simply a legislative codification of the same common law castle doctrine as has been the law since the times of the Magna Carta. The difference is other states give their citizens rights ADDITIONAL protections above and beyond that, to include criminal and sometimes even civil immunity in some places.

 

[RKG]

So violating 140/129C is a civil infraction?

What about Safe Storage? Couldn't the OP still get bagged for "Unsafe Storage" under 131L because his wife is still not a "lawfully authorized user" by any stretch?


-Mike

Not if, per 269/10(a) she is a lawfully authorized user so long as she stays in the house.

 

[RKG]

. . . I would still advocate that people being permitted is the legally safest way to go, at the moment. . . .

Most lawyers will tell you that the best answer to any question is not as good as keeping the question from coming up in the first place (though we'd as soon the world of clients isn't that smart).

 

[OfficerObie59]

Most lawyers will tell you that the best answer to any question is not as good as keeping the question from coming up in the first place (though we'd as soon the world of clients isn't that smart).

Amen. No one ever wants to hear that response though. Everyone wants to know where the line is so they can get as close to it as possible without crossing it.

 

[Kevlar]

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