New Guy with questionable past

[jasons]

What about a firearm that is over 100 years old? They are considered antiques and not firearms.

Would a DQ person legally be able to own one? And with an FID card they could buy/possess ammunition.

Just thinking outside the box here.

Rich

Not in MA, at least not according to Chapter 140, Section 121.

 

[Len-2A Training]

Just curious, but do people who were pinched for pot possession before that was made "less illegal" have standing to have their rights restored now?

No, nothing in the law wrt decriminalizing minor amounts of pot gave any relief to those already convicted.

 

[richc]

Not in MA, at least not according to Chapter 140, Section 121.

What about this language?

"The provisions of sections 122 to 129D, inclusive, and sections 131, 131A, 131B and 131E shall not apply to:

(A) any firearm, rifle or shotgun manufactured in or prior to the year 1899; "

 

[jasons]

What about this language?

"The provisions of sections 122 to 129D, inclusive, and sections 131, 131A, 131B and 131E shall not apply to:

(A) any firearm, rifle or shotgun manufactured in or prior to the year 1899; "

Yeah, I guess he could get a 1898 Mauser or a cap and ball revolver. He's not getting a 1911 or anything most of us would consider "modern."

 

[Kevlar]

So, talking to a friend of mine who is, along with his wife, interested in applying for a permit of some kind, seems to have a misdemeanor class D possession conviction in MA on his record from 20+ years ago. I'm still not clear even after browsing a number of threads, is he prohibited from gun ownership in MA and federally?

ETA: I have sent him a note asking for more info about it, like if it was CWOF, etc.

A cursory search of MGL history shows that a conviction for possession of a class "D" substance (marijuana) between July, 1972 (creation of Chapter 94C) and January, 2009 (decriminalization) was a misdemeanor with a potential penalty of up to 1 year incarceration.

Such a conviction would not render one a Federally Prohibited Person (18 USC 921(a)(20)(B)), though it would be a lifetime LTC disqualifier (MGL 140-131(d)(i)(e))).

One would be eligible for a FID after 5 years had elapsed since "release from confinement, probation or parole supervision for such conviction or adjudication" (MGL 140-129B(1)(i)(d)).

IANAL, YMMV etc.

ANY drug conviction, regardless of sentence, is a lifetime LTC DQ in MA!

FIFY.

 

[terraformer]

No, nothing in the law wrt decriminalizing minor amounts of pot gave any relief to those already convicted.

Um, yes there is a sealed record statute so there is some relief. Whether it is enough remains to be seen.

To Emoto, you know who to have him call if he is denied.

 

[Len-2A Training]

Um, yes there is a sealed record statute so there is some relief. Whether it is enough remains to be seen.

To Emoto, you know who to have him call if he is denied.

Sealed records are a "non-starter" when it comes to MA gun licensing. State opens all sealed records and reports back if a DQ (and every drug conviction is a lifetime DQ for a MA LTC).

Then you have the Fed interpretation of "PARTIAL GUN RIGHTS" to contend with . . . that they don't recognize the legality of anyone who is statutorily DQ'd from a LTC but is issued a MA FID!

 

[terraformer]

Sealed records are a "non-starter" when it comes to MA gun licensing. State opens all sealed records and reports back if a DQ (and every drug conviction is a lifetime DQ for a MA LTC).

Then you have the Fed interpretation of "PARTIAL GUN RIGHTS" to contend with . . . that they don't recognize the legality of anyone who is statutorily DQ'd from a LTC but is issued a MA FID!

I know the second one. I am just not assenting to the former point. The legal theory that the state hangs it's hat on for opening sealed records is that the 1998 mods are newer than §100B and so override §100B's prohibition on using the records for any license disqualifications. Well, 94C § 34 is newer than the 1998 mods and has the same language as §100B. I would love to see the gymnastics they plan on playing here. Given we have not been finding people with sealed 94C convictions calling us, I don't know if they are being denied, but it's possible they are not. Only time will tell.

 

[Emoto]

Um, yes there is a sealed record statute so there is some relief. Whether it is enough remains to be seen.

To Emoto, you know who to have him call if he is denied.

Thanks, Terraformer.

 

[TimMcG74]

You wouldn't be able to purchase a gun from a dealer since they are federally licensed but you could buy though private sale with a FA-10 since only the state handles those.

Be very careful about the advice you give. It is a felony for a prohibited person to take possession of a firearm, and doing so on an FA-10 creates a permenent record of that crime that is conceivably accessible by the feds. Just because the ATF may have said they won't prosecute, that does not mean that another federal agency will not, like the FBI for instance.

 

[45collector]

To the OP: By your brief explanation of those events that occurred years ago, I gather that you took the fall for your room mates who were selling drugs? And you were in no way engaged in that activity but just had the misfortune of living under the same roof? If that is the case, that was mighty nice of you to catch the flak for them. Were they charged with anything?

 

[GSG]

From what I have seen on here and other places is the ATF has said they will not prosecute any one cleared by the FLRB! So how could they prosecute any one with a FID card then since it is the same differnce.

You're giving some really really bad legal advice here.

And have your wife get a LTC or FID and that way atleast she is good under state and federal law just in case. keep the guns in a safe with a digital lock that only "she has the code to" if you know what I mean. That way if for some odd reason you get a visit from the fed's the guns are under her control since you dont have access to it even though it is in the same home. You would need to get caught with a gun within your control to really be charged with possession like in your car or bag or underneath your pillow but if it is in a safe which she only has a code to then they can't prove you have access to it. Worst case you need to use a gun to protect your family then it is what it is and if they want to try to charge you they can.

Your transparent idea is a very common formula for constructive possession.

A lot of these stories are cops shooting in the dark with these charges most of these probably don't stand up in court.

But still wind up costing someone thousands of dollars or more to defend against.

That way if for some odd reason you get a visit from the fed's the guns are under her control since you dont have access to it even though it is in the same home.

Local cops refer cases to the Feds all the time. Ever hear of Michael Lara?

http://commdocs.house.gov/committees/judiciary/hju26765.000/hju26765_0f.htm

TESTIMONY OF MICHAEL JAMES LARA, TUCSON POLICE DEPARTMENT, TUCSON, ARIZONA

Mr. LARA. Thank you, Chairman Coble, Representative Scott, and Members of the Subcommittee for allowing me to tell you my story. I am Michael Lara from Tucson, Arizona. Currently I am a lieutenant on the Tucson Police Department and have been a law enforcement officer for 28 years.


Page 21 PREV PAGE TOP OF DOC
In 2003, I had prospects of growth and promotion. At that point, I was a patrol commander, when my life was altered after ATF charged me with making a false statement on a firearms purchase form. In 2002, I had purchased a handgun and then gave it to a friend. My friend was a law-abiding citizen and had been authorized by the Arizona State Police to carry a concealed weapon.

On the firearms purchase form, it asked whether or not I was the actual buyer of the firearm. After reading the definition of what an actual buyer was, I answered yes on the form. At one point, ATF had cause to review the purchase of the firearm. The firearm had not been used in any criminal situation, and yet my department conducted an internal investigation and later found me innocent of any wrongdoings.

During this internal investigation, I gave one statement, the focus of which was not the purchase form that I had filled out. After the internal investigation, I was left on administrative leave while ATF continued their investigation, which took 7 months. Three months later, ATF indicted me, claiming that I had not purchased a firearm as a gift, but that I had actually bought it for my friend using her money. This type of purchase is often referred to as a straw purchase, and the law prohibits a straw purchase to prevent prohibited possessors from obtaining guns.

After charges were filed, I was fired from the Tucson Police Department. Three weeks later, I had a hearing in a U.S. district court, at which point I was physically arrested and subjected to prisoner processing before being released on my own recognizance. Three months after my arrest, my case went to trial. At the end of the trial, the jury deliberated less than 1 hour before finding me innocent of the charges.

Page 22 PREV PAGE TOP OF DOC

Two more months went by before I was reinstated on my job, but on the first day back to work I was given a 40-hour suspension without pay for criminal activity because I had been indicted.

Throughout this ordeal, I held the belief that once ATF does a proper investigation, the case would go away. This did not happen. ATF based their case on the only statement taken from me by Internal Affairs. ATF failed to interview any of the witnesses to the firearm purchase and transfer.

This was a life-altering event, and it was absolutely devastating. I am the father of four sons and have sole custody of them. So at the time of the prosecution, it had an immediate and direct impact on them as well. It is not hard to imagine how tough it was for them to face their friends and teachers, especially when the newspapers kept running headlines about a cop gone bad.

Financially, I lost over $216,000 in savings and earnings. I had to refinance my home to help pay the bills and the attorney fees. The prosecution also had a direct impact on my retirement. I endured two great fears throughout this entire process. Number one, if I were found guilty, I would lose custody of my sons. Number two, the prospect of prison life is not a good one for an ex-officer.

And finally, my professional career is shot. It has now been 3 years after the event and I am still a patrol lieutenant. It was made clear to me that when I returned to work, I would never see any advancement.

Page 23 PREV PAGE TOP OF DOC

It just makes no sense to me why ATF would try to prosecute someone who had dedicated themselves to serving our community and who clearly did nothing wrong. It was obvious that there was no intent of wrongdoing. And even if their perception of the facts were accurate, at best I would have been guilty of filling out an ambiguous form incorrectly.

This prosecution should not have occurred, and it certainly, as I said, was life-altering.

I would like to thank the Chair. Thank you.

[The prepared statement of Mr. Lara follows:]

PREPARED STATEMENT OF MICHAEL JAMES LARA

You don't even have to get a phone call from a Fed to get a federal prosecution. That local cop in your living room will write a report or make statements that could wind up in federal court.

- Police accompany FD and EMS to calls. If any of them sees something they are likely to take action (FD and EMS reporting same to PD, PD obtaining search warrant).

With the civil service circus in Mass. a lot of EMT's/FF's are also part time LEO's of some kind, and will act in both roles while on scene. There's caselaw on this very subject too.

What about a firearm that is over 100 years old? They are considered antiques and not firearms.

Not if it's a "firearm" under MGL (a handgun in the traditional sense). Also if the Feds can prove that the ammo was made post 1899 they'll charge and convict for that, that's happened to people using antique guns with new ammo.

 

[Brandon1317]

To the first part regarding the FLRB that was not advice just mentioning what was said on this forum.

Second I have found no case where a PP was convicted of possession of a firearm when it was owned and secured by some one else in the house. I have seen a case where the parents left keys to the gun safe hanging up in plan site and they still couldn't charge the felon on probation with possession.
I asked two different lawyers about that and both said the charges of that nature won't stick. You would need to have the firearm on your person or within your control or property you own or use and it would need to be un secured. Now if you live by your self it really won't matter if its locked up or not you then would be charged.

 

[Rob Boudrie]

Then you have the Fed interpretation of "PARTIAL GUN RIGHTS" to contend with . . . that they don't recognize the legality of anyone who is statutorily DQ'd from a LTC but is issued a MA FID!

The feds don't recognize the partial restoration of rights for someone who is a federally PP. If the offense is a DQ under state law, but not under federal law, they would not meet the definition of federally PP, so I don't know if there is a federal offense they can be charged with. (If there is, could someone please cite it). This is rare in MA since so many misdemeanors are 2.5 years, but could come into play with a 1 year misdemeanor that triggers a MA DQ.

Also, the feds to not recognize the full restoration by the FLRB since it does not restore voting rights (as those were never taken away), therefore, does not meet the federal definition of "restoration of civil rights".

 

[drgrant]

You don't even have to get a phone call from a Fed to get a federal prosecution. That local cop in your living room will write a report or make statements that could wind up in federal court.

I'll also mention that FIP is probably the easiest bag job for a Fed USA/AUSA... all they have to do is show that Person X is legally prohibited, and that they were found to be in possession of the firearm. Therefore, while cases like potential "straw purchases" have a lot of implications of wonkiness embedded in them, things like FIP generally do not. The prosecutor knows with relative certainty whether or not the case is going to fly before charges are even brought. The risk of the case failing is a lot lower.

The feds also love these kinds of things (eg, like a bag job off a NICS check failure) because then they get to run around telling everyone how great background checks are where someone running FIP gets added to the NICS score sheet at the end of the year.

-Mike

 

[GSG]

Second I have found no case where a PP was convicted of possession of a firearm when it was owned and secured by some one else in the house.

That's because strong convictions don't get appealed much, and cases that aren't appealed rarely make it to a higher court.

You would need to have the firearm on your person or within your control or property you own or use and it would need to be un secured.

Not true. You would need to be able to excercise control over the firearm, which is a lower standard than carrying it in your waistband.

I'll also mention that FIP is probably the easiest bag job for a Fed USA/AUSA... all they have to do is show that Person X is legally prohibited, and that they were found to be in possession of the firearm.

Exactly. Malum prohibitum prosecutions are easy and convictions are common because there's a lot less to prove than malum per se; there's no victim to back out of testifying, etc.

 

[alignguy]

45....I was working a 6.25 a n hour job pumping gas back in 1989 when this happened. The other 2 guys were also charged and convicted of trafficking and got a second trafficking charge while out on bail....they plead guilty to both cases and were going to testify for me saying all I was doing was living with them and my only guilt was that I knew what they were doing.....The DA offered me a deal because they were going to testify for me and the case on me was kind of weak...so it was reduced from trafficking and a mandatory minimum of 3 years to a intent to distribute with a 3-5 year sentence....because it was non violent, I only served a year because I behaved....To be honest, if I had any faith in my attorney,I would if fought it....but he sucked and a minimum of 3 years in State prison at 19 didn't look pretty to me..............On another note and I am not 100% certain of the accuracy of this, I was told that with the FID card, I could attempt to purchase a rifle or shotgun and the ok, wait, or denial would come via the NCIS search...that would take away the chance of the ATF showing up at my house and arresting me for felon with a firearm...because I would be denied or approved by the Feds on the spot and not violate any laws that I am aware of....I am going to get my FID, purchase a muzzle loader and ammo and try to purchase a shotgun for home defense and see what happens...I will let you know how I make out if I don't get locked up......PS, Thank you all for your time and answers...it truly is appreciated

 

[terraformer]

On another note and I am not 100% certain of the accuracy of this, I was told that with the FID card, I could attempt to purchase a rifle or shotgun and the ok, wait, or denial would come via the NCIS search...that would take away the chance of the ATF showing up at my house and arresting me for felon with a firearm...because I would be denied or approved by the Feds on the spot and not violate any laws that I am aware of....I am going to get my FID, purchase a muzzle loader and ammo and try to purchase a shotgun for home defense and see what happens...I will let you know how I make out if I don't get locked up......PS, Thank you all for your time and answers...it truly is appreciated

You are a prohibited person. If you buy ANYTHING you risk a VERY real possibility of being convicted and even a great lawyer will do nothing for you. Your best chance is to try to get your conviction annulled. Contact an attorney in the locale of the conviction or wait to see what changes come via court cases.

 

[Brandon1317]

You are a prohibited person. If you buy ANYTHING you risk a VERY real possibility of being convicted and even a great lawyer will do nothing for you. Your best chance is to try to get your conviction annulled. Contact an attorney in the locale of the conviction or wait to see what changes come via court cases.

Correct me if I'm wrong but weren't you guys talking about if the FBI clears you the ATF wouldn't be able to go after you for some reason? If it is a MASS conviction their isn't much that he can do to get it off his record... Are their any pending court cases that would have a effect on this felon trap of a law? This law has been like this for a long time and nothing has ever been done to fix it so I dont see it being fixed any time soon. Easy fix allow non violent felons the abilty to apply for a LTC in MA that will fix the issue at the federal level. The chiefs still have the whole suitabilty thing to deny you any way so you still wouldn't get a handgun.

 

[terraformer]

Correct me if I'm wrong but weren't you guys talking about if the FBI clears you the ATF wouldn't be able to go after you for some reason? If it is a MASS conviction their isn't much that he can do to get it off his record... Are their any pending court cases that would have a effect on this felon trap of a law? This law has been like this for a long time and nothing has ever been done to fix it so I dont see it being fixed any time soon. Easy fix allow non violent felons the abilty to apply for a LTC in MA that will fix the issue at the federal level. The chiefs still have the whole suitabilty thing to deny you any way so you still wouldn't get a handgun.

I don't know what conversation you are referring to but I can assure you if someone is a prohibited person and MA sees the convictions, the FBI won't clear you. If he doesn't lie on the form, the FFL won't even proceed to call the ATF on the transaction. And if he lies on the form, then he has committed another crime. He is a prohibited person and he needs to focus on annulling the underlying convictions or waiting until someone can convince the supreme court that non violent criminals should not be be denied rights.

And "weren't you guys talking about if the FBI clears you the ATF wouldn't be able to go after you for some reason" would likely refer to a conversation about entrapment by estoppal. It's solely an affirmative defense and would not stop them from charging you. Additionally, if the person KNEW they were prohibited, entrapment by estoppal becomes far less persuasive because entrapment by estoppal is all about persons in a position of authority telling an individual something is OK when it's not.

The OP needs to get an attorney and try to annul the convictions. Anything else will not work and will likely get him into more criminal trouble.

 

[Brandon1317]

I don't know what conversation you are referring to but I can assure you if someone is a prohibited person and MA sees the convictions, the FBI won't clear you. If he doesn't lie on the form, the FFL won't even proceed to call the ATF on the transaction. And if he lies on the form, then he has committed another crime. He is a prohibited person and he needs to focus on annulling the underlying convictions or waiting until someone can convince the supreme court that non violent criminals should not be be denied rights.

And "weren't you guys talking about if the FBI clears you the ATF wouldn't be able to go after you for some reason" would likely refer to a conversation about collateral estoppal. It's solely an affirmative defense and would not stop them from charging you. Additionally, if the person KNEW they were prohibited, collateral estoppal becomes far less persuasive because collateral estoppal is all about persons in a position of authority telling an individual something is OK when it's not.

The OP needs to get an attorney and try to annul the convictions. Anything else will not work and will likely get him into more criminal trouble.

How would a charge for lieing on form 4473 even stick (For a FID PP Holder)? If you look at the form it says you may answer no if your civil rights were restored, which they are in MA. Now unless you knew about the Caron the case you would have no idea that doesn't count for MA, so really on the form it should list sates that doesn't count for.. Other wise I see it being very very diffucult convicting some one for lieing on the form with a vaild FID card.

And you hit it right on the head, some one needs to convince the court that non violent felons should not lose their gun rights. But no one will take up that case even though it would get millions or more people on the pro gun side. Most people dont even understand what DQ you from owning a gun, most just assume you need to be a violent felon and dont understand all the misd. charges that DQ you also. I haven't seen any PRO Gun organizations really go at this issue even though alot of legal experst said the supreme courts ruling in Heller leaves the door open for non violent felons owning guns.

 

[Brandon1317]

Quaote: I don't know what conversation you are referring to but I can assure you if someone is a prohibited person and MA sees the convictions, the FBI won't clear you. If he doesn't lie on the form, the FFL won't even proceed to call the ATF on the transaction. And if he lies on the form, then he has committed another crime. He is a prohibited person and he needs to focus on annulling the underlying convictions or waiting until someone can convince the supreme court that non violent criminals should not be be denied rights.

So how do some with FLRB restorations get cleared though NCIC? I have heard they appeal to them and it gets resolved, Even though it may still be a federal DQ..

 

[terraformer]

How would a charge for lieing on form 4473 even stick (For a FID PP Holder)? If you look at the form it says you may answer no if your civil rights were restored, which they are in MA. Now unless you knew about the Caron the case you would have no idea that doesn't count for MA, so really on the form it should list sates that doesn't count for.. Other wise I see it being very very diffucult convicting some one for lieing on the form with a vaild FID card.

You have answered your own question. Caron says that his rights have not been restored.

 

[terraformer]

So how do some with FLRB restorations get cleared though NCIC?

They don't which is a big problem. Because now it's not only Caron but US v. Logan (2007) that we must deal with.

 

[richc]

You are a prohibited person. If you buy ANYTHING you risk a VERY real possibility of being convicted and even a great lawyer will do nothing for you. Your best chance is to try to get your conviction annulled. Contact an attorney in the locale of the conviction or wait to see what changes come via court cases.

With the recent court case in MA saying anything over 100 years old is not a firearm, could he legally purchase and possess an antique without an FID?

 

[Brandon1317]

You have answered your own question. Caron says that his rights have not been restored.

Almost no one has knowledge of the Caron case and would never even think to look for something like that. It is impossible for a person to know every state and federal law never mind understanding these court rulings.


I know some one who had a FLRB restoration and appealed to the Feds when denied and now can purchase guns with out a issue. So how does that happen?

 

[terraformer]

With the recent court case in MA saying anything over 100 years old is not a firearm, could he legally purchase and possess an antique without an FID?

Not necessarily. This is MA law, not federal law. Federal law requires the firearm not have modern ammunition (or vice-versa, I can't remember which does which).

And if you read the details of the Jefferson case you will note that the state will still prosecute for the ammunition and more importantly, even on the gun if they decide that they want to or there is no ammunition with the gun. The SJC actually green lighted malicious prosecutions with that case. You don't want to know what I think of this situation at this point.

 

[terraformer]

Almost no one has knowledge of the Caron case and would never even think to look for something like that. It is impossible for a person to know every state and federal law never mind understanding these court rulings.

Welcome to modern jurist prudence...

 

[Rob Boudrie]

If you look at the form it says you may answer no if your civil rights were restored, which they are in MA.

It appears to be the position of the feds that a favorable FLRB ruling is NOT restoration of civil rights because the applicant is not having voting rights restored as they were never lost.

I say "appears" since the feds have directly stated this in a similar California case where they refused to recognize a state relief from disability, even though the relief was a complete restoration of firearms rights and would, under a reasonable reading, seem to be the kind of full restoration referred to in Caron.

What is certain is that proof of a favorable FLRB ruling will not convince the BATFE to clear a misdafelon disqualification from an individuls's NICS record.

I know some one who had a FLRB restoration and appealed to the Feds when denied and now can purchase guns with out a issue. So how does that happen?

It could be a offense that only triggered the state, but not a federal, prohibition. If you could have your friend provide specifics to comm2a (email info at comm2a.org) it would be most helpful.

 

[mudd024]

your best bet is to just call up an attorney and get a free consultation and tell him your situation and see if its even worth your time to apply. Or else you might end up paying the $100 fee for nothing