Question About What The Dealer Told Me (first time gun owner)

[Scrivener]

Isn't a crime punishable by 1 to 10 years a felony? Wouldn't they then be a federally prohibited person?

YES and YES.

 

[M1911]

YES and YES.

In which case, suitability is not an issue.

 

[Kevlar]

Isn't a crime punishable by 1 to 10 years a felony?

Any State defined felony, or any State defined misdemeanor with a possible penalty of incarceration in excess of 2 years is considered a felony. A violation of c.140 s.131M is a State defined felony.

 

[M1911]

Who? The dealer? No. They are exempt from c.140 s.131M

The buyer convicted of possessing post-ban large capacity magazines.

 

[Kevlar]

The buyer convicted of possessing post-ban large capacity magazines.

Oh, yes, absolutely.

 

[Powerslide]

Man, this state is messed up. There are guns that a dealer cannot legally sell you, but it's perfectly fine to buy/own them (it's the dealer's problem, not yours). And there are magazines that the dealer could "legally" sell you, but you can go to prison if you possess them. Arrggghhhh.

Edit: Imagine if the pharmaceutical industry operated like this.

I wonder if a dealer sold someone a high-cap post-ban magazine and the buyer got busted for it, could the buyer sue the dealer in civil court? He'd still go to jail, but I wonder if he could sue the dealer. People have been successfully sued for much smaller things in this country.

 

[defens]

Never mind, questions answered.

 

[Len-2A Training]

It is illegal for the dealer to sell the post-ban hi-cap mag to any non-LEO subject in MA! They stand to go to jail and get fined if someone decides to prosecute them.

 

[GSG]

The buyer convicted of possessing post-ban large capacity magazines.

Kevlar & I were discussing the dealer exemption, sorry for any confusion.

Man, this state is messed up. There are guns that a dealer cannot legally sell you, but it's perfectly fine to buy/own them (it's the dealer's problem, not yours). And there are magazines that the dealer could "legally" sell you, but you can go to prison if you possess them. Arrggghhhh.

No kidding.

Who? The dealer? No. They are exempt from c.140 s.131M

While the dealer is exempt under MGL 140-131M, they are not exempt under MGL 140-123, which says in part:

Chapter 140: Section 123. Conditions of licenses


Section 123. A license granted under section one hundred and twenty-two shall be expressed to be and shall be subject to the following conditions:

<snip>

Sixteenth, That no licensee shall sell, lease, rent, transfer or deliver or offer for sale, lease, rent, transfer or delivery to any person any assault weapon or large capacity feeding device that was not otherwise lawfully possessed on September 13, 1994.

<snip>

The licensing authority shall enter, one time per calendar year, during regular business hours, the commercial premises owned or leased by any licensee, wherein such records required to be maintained under this section are stored or maintained, and inspect, in a reasonable manner, such records and inventory for the purpose of enforcing the provisions of this section. If such records and inventory contain evidence of violations of this section, the inspecting officer shall produce and take possession of copies of such records and, in the event that the licensee subject to inspection does not possess copying equipment, the inspecting officer shall arrange to have copied, in a reasonable time and manner, such records that contain evidence of such violations and the costs for such copying shall be assessed against the owner of such records. Licensees found to be in violation of this section shall be subject to the suspension or permanent revocation of such license issued under section 122 and to the provisions of section 128. Nothing herein shall prohibit the licensing authority or the department of state police from conducting such inspections pursuant to a valid search warrant issued by a court of competent jurisdiction.

Then MGL 140-128 says:

Chapter 140: Section 128. Penalty for violation of statute on selling, renting or leasing weapons; evidence on sale of machine gun


Section 128. Any licensee under a license described in section one hundred and twenty-three, and any employee or agent of such a licensee, who violates any provision of said section required to be expressed in the second, fourth, sixth, seventh, eighth, ninth, sixteenth, eighteenth, nineteenth, twentieth or twenty-first condition of said license, and except as provided in section one hundred and twenty-eight A, any person who, without being licensed as hereinbefore provided, sells, rents or leases a firearm, rifle, shotgun or machine gun, or is engaged in business as a gunsmith, shall be punished by a fine of not less than $1,000 nor more than $10,000, or by imprisonment for not less than one year nor more than ten years, or by both such fine and imprisonment.

Evidence that a person sold or attempted to sell a machine gun without being licensed under section one hundred and twenty-three shall, in a prosecution under this section, constitute prima facie evidence that such person is engaged in the business of selling machine guns.

In other wods, it's a felony for a dealer to sell a post-ban mag to someone who's not supposed to have it, punishable by a fine as well.

 

[Kevlar]

Kevlar & I were discussing the dealer exemption, sorry for any confusion.

This.

In other wods, it's a felony for a dealer to sell a post-ban mag to someone who's not supposed to have it, punishable by a fine as well.

Agreed. I was pointing out that it wasn't prohibited by s131M. I was just too lazy to look up and cite the correct statute. I should have been clearer (and less lazy ), sorry.

 

[drgrant]

I wonder if a dealer sold someone a high-cap post-ban magazine and the buyer got busted for it, could the buyer sue the dealer in civil court? He'd still go to jail, but I wonder if he could sue the dealer. People have been successfully sued for much smaller things in this country.

Never happen. The odds would be similar to winning the powerball, twice. Nobody's ever been charged with an AWB violation in MA, and odds are, in most cases, if someone is ever actually charged with it, the AWB will be a "leverage" charge against someone to induce a plea bargain on something else that the prosecution deems more important and easier to prosecute. Prosecutors/DAs know it is difficult to make it stick, but they could conceivably still get away with using it to bloviate when attempting to cut a plea deal with the accused before the real trial. This means that once the dust settles on that persons court appearance, that they no longer have anything resembling a claim against the dealer because the AWB charge was dropped.

Is it still a serious potential felony rap? Sure.... and people should cover their asses to a reasonable degree- but it's also worthwhile to note that the reality of it is, that it probably will not be prosecuted in anything but the most ideal circumstances for the prosecution.

-Mike

 

[Scrivener]

Never happen. The odds would be similar to winning the powerball, twice. Nobody's ever been charged with an AWB violation in MA, and odds are, in most cases, if someone is ever actually charged with it, the AWB will be a "leverage" charge against someone to induce a plea bargain on something else that the prosecution deems more important and easier to prosecute.

WRONG. I have defended someone charged w/multiple counts of unlawful possession of a 'Large Capacity Feeding Device."

 

[Rate_of_Twist]

to the OP, welcome and +1 for reading the sticky.

WRONG. I have defended someone charged w/multiple counts of unlawful possession of a 'Large Capacity Feeding Device."

And what was the outcome? You say "unlawful" possesion. Did the defendant simply not have the license to permit possesion, or was it a case of possesion of a "post-ban" AWB item?

 

[Scrivener]

And what was the outcome? You say "unlawful" possesion. Did the defendant simply not have the license to permit possesion [sic], or was it a case of possesion [sic] of a "post-ban" AWB item?

Both.

 

[Rate_of_Twist]

Both.

Interesting. How was the case made that the AWB item had been manufactured to the ban? either way its irrelevant as the defendant was unlicensed to posses it....

 

[GSG]

Agreed. I was pointing out that it wasn't prohibited by s131M. I was just too lazy to look up and cite the correct statute. I should have been clearer (and less lazy ), sorry.

Bah, it's all good.

Nobody's ever been charged with an AWB violation in MA

I posted about that here.

Is it still a serious potential felony rap? Sure.... and people should cover their asses to a reasonable degree- but it's also worthwhile to note that the reality of it is, that it probably will not be prosecuted in anything but the most ideal circumstances for the prosecution.

Agreed.

 

[mass]

I know of someone who bought a gun from a dealer last year, got home and discovered two post ban hi caps in the case. They got rid of the mags like they were covered in anthrax.

 

[drgrant]

WRONG. I have defended someone charged w/multiple counts of unlawful possession of a 'Large Capacity Feeding Device."

.... nm... You stated "both"- so he was charged under both sections of law? What was the standard of evidence they used for the AWB charge?

I'm very curious because I've never seen/heard of this before. Plenty of "LCAFD without a license" but not AWB violations.

-Mike

 

[drgrant]

Interesting. How was the case made that the AWB item had been manufactured to the ban? either way its irrelevant as the defendant was unlicensed to posses it....

It's not irrelevant as the person could, conceivably, be charged with TWO different felonies. One doesn't cancel out the other, although "LCAFD w/o a license" is more likely to result in a conviction because it is easier for them to demonstrate that in court, because they can do it in one sentence. "Officer so and so found a 15 round magazine on Mr. Businblah when he was arrested, and Mr. Businblah does not have a valid LTC issued to him in the commonwealth... "

-Mike

 

[Rate_of_Twist]

It's not irrelevant as the person could, conceivably, be charged with TWO different felonies. One doesn't cancel out the other, although "LCAFD w/o a license" is more likely to result in a conviction because it is easier for them to demonstrate that in court, because they can do it in one sentence. "Officer so and so found a 15 round magazine on Mr. Businblah when he was arrested, and Mr. Businblah does not have a valid LTC issued to him in the commonwealth... "

-Mike

You are correct, irrelevant was not right word to use. My point and question was how/or did the prosecution prove the item was not ban compliant? I kind of figured the prosecution wouldn't bother trying to prove it wasn't because they already had the defendant dead to rights on the simple fact it was not licensed to posses the item anyways.

drb

 

[GSG]

What was the standard of evidence they used for the AWB charge?

I'm very curious because I've never seen/heard of this before. Plenty of "LCAFD without a license" but not AWB violations.

Same here. While I'm very interested to know, I can't imagine he'd want to be loose lipped about it.

My point and question was how/or did the prosecution prove the item was not ban compliant? I kind of figured the prosecution wouldn't bother trying to prove it wasn't because they already had the defendant dead to rights on the simple fact it was not licensed to posses the item anyways.

You don't need proof to file charges, you need probable cause. If the case didn't stand up or if it was pled down to lesser crimes (which is very common) then it wouldn't make it to the SJC, so there wouldn't be any binding case law on it.

 

[terraformer]

WRONG. I have defended someone charged w/multiple counts of unlawful possession of a 'Large Capacity Feeding Device."

What most people here are curious about are prosecutions of licensed gun owners charged solely with AWB violations. In CA this happens regularly apparently. They troll gun clubs, etc. Here?

 

[Len-2A Training]

What most people here are curious about are prosecutions of licensed gun owners charged solely with AWB violations. In CA this happens regularly apparently. They troll gun clubs, etc. Here?

Well in MA, they troll NES!!

It really wouldn't be hard to nail some people based on their posts here, would it?

 

[Rob Boudrie]

In CA this happens regularly apparently. They troll gun clubs, etc. Here?

The standard in CA is quite different - to be lawful, a > 10 round mag must have been personally possessed in CA before the Caliban. There is no concept of "pre ban is legal" (mags may not be transferred, brought into the state, etc., even if they existed since they were used to hunt woolley mammoths. Rifles that use said mags were subject to a now closed window of opportunity for registration. In one case I know of, someone with several AR mags in the car who could not prove he had a AW registration certificate was charged with one felony count for each magazine. In another case, an individual plead guilty and was sentenced time served (about a month) for possession of a rifle that did not meet the CA definition of an AW. Once a gun lawyer got wind of it, he appealed - and the prosecution successfully convinced the court the appeal could not be considered since the deadline for filing had been met (the fact that the person was, in fact innocent, meant nothing to the prosecution).

 

[Maxpower]

Just an update. The dealer sent the 15's back to his distributor and swapped them for some 10's. All is well. I feel much more comfortable knowing the 10 rounders are okay than worrying whether or not the 15 rounders were okay.

 

[n1heu]

ATF trolls NES. Fact.