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Restraining Order LTC Question
- Thread starter Dun_right
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IANAL, but I believe the answer is "legally, yes. And legally, no."
That is to say, your Chief of Police can deny you your LTC for any reason whatsoever (altho after 2014 law updates he must be able to articulate a reason, and explain himself to a judge if you push for a bench trial.)
That is to say, your Chief of Police can deny you your LTC for any reason whatsoever (altho after 2014 law updates he must be able to articulate a reason, and explain himself to a judge if you push for a bench trial.)
MachineHead
NES Member
Only if it’s dun right. Sorry. I couldn’t help it. Jtnf is correct.
So strange a concept to still exist... a restraining order demands so little evidence to deprive a man of more than 1/2 of the rights enumerated in the bill of rights, and nowhere close to enough to bring charges and make things like "remain 300' away" and "do not attempt to contact via any means" and "turn over firearms and other weapons" a condition of pretrial release or pretrial probation. So much for that sixth amendment huh?
Strictly up to the chief whether or not he'll reinstate the person's LTC. No Mass judge will overrule his decision either.
In most cases the guns are long gone to a bonded warehouse and sold off or the fees are so high that you can't retrieve them, but only if you get your LTC back.
In most cases the guns are long gone to a bonded warehouse and sold off or the fees are so high that you can't retrieve them, but only if you get your LTC back.
Correct as far as what the law says, but the courts are not holding them to the clearly articulated risk to public safety that the law requires. They are still specifically enforcing the previous "broad discretion" (i.e. anything) standard that existed pre 2014.
So it will come down to the CoP, the courts will support whatever he does.
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The statutory ban is gone, however, one PD had a policy of "If you have had a court ordered RO, and had a chance to appear in court, the fact that the RO expires does not change the fact that the courts found you were a violence threat and no LTC will be issued to you by this department". The court upheld it.
Plan ahead. I have a letter in my safe granting a certain FFL permission to take possession of my guns form the PD, and and arrangement with that FFL that he is "on call" to do a pickup. Said letter would be delivered to the PD with any guns surrendered. While some PDs will go to length to make sure the thefthouse gets the guns, most just want them out of their property room. I know of multiple cases where someone who lost an LTC was able to bypass the bonded warehouse by using a designated FFL.
True, and this precedent was pre that change. That being said, the argument still exists "A court found you were a public safety threat", with the counter being "the court also found that threat was over". And you are correct - the courts still act as if Moyer was the binding precedent, even though the law and standard has changed.
dcmdon
NES Member
Don't forget that if you ever lose your LTC, it is perfectly legal for you to simply move them to another state. As long as you are not a PP.
If you move them to somewhere like NH, VT, or ME, where no license is required to possess anything, then there is no law prohibiting you from keeping them there. No matter what the PD says.
MA PD have no legal authority over firearms you keep in another state. You may piss them off. And they may never re-issue you a LTC again. But if you don't think you will ever get it back anyway, then this is a viable option.
I know of a CT PP holder who became the subject of a protective order. He sent the guns to a FFL out of state. The CT cops kept insiisting that he provide DPS-3 forms as proof of the transfer. He just kept repeating "I am in full compliance iwth the protective order and all associated CT statutes".
It was gorgeous.
If you move them to somewhere like NH, VT, or ME, where no license is required to possess anything, then there is no law prohibiting you from keeping them there. No matter what the PD says.
MA PD have no legal authority over firearms you keep in another state. You may piss them off. And they may never re-issue you a LTC again. But if you don't think you will ever get it back anyway, then this is a viable option.
I know of a CT PP holder who became the subject of a protective order. He sent the guns to a FFL out of state. The CT cops kept insiisting that he provide DPS-3 forms as proof of the transfer. He just kept repeating "I am in full compliance iwth the protective order and all associated CT statutes".
It was gorgeous.
Careful what you tell people, an RO makes you Fed PP https://www.justice.gov/sites/default/files/usao-ut/legacy/2013/06/03/guncard.pdf
But he is right, the advice was sketchy. Moving them out of state fixes the no LTC issue, but they need to be in someone else's possession as during the RO you are a PP. (We have been taking about 209a's here so the other RO's don't come into this.) So either an FFL has to be holding them, or functionally you would have to transfer them (Since it is in another state that you presumably do not live in it would need to be FFL transfers)
Also I seem to remember someone saying here that in the case of a RO when they come to take your LTC and get your guns they are not going to take "I'm in compliance with the law" as an answer. So expect they will shred your house looking for the guns you have "Hidden" and that if you make the mistake of saying they are out of state or telling them who has them, that person will be harassed and threatened until they give them up.
dcmdon
NES Member
I guess most of you didn't actually READ what I posted.
My FIRST TWO sentences were:
Don't forget that if you ever lose your LTC, it is perfectly legal for you to simply move them to another state. As long as you are not a PP.
So again. As long as you are not a (federally) prohibited person or prohibited in the state where the guns are stored, then there is NOTHING illegal about moving your firearms to a different state to keep them out of the hands of either a FFL or the PD.
There are lots and lots of instances where your LTC could be pulled but you are not a PP. Off the top of my head some are:
1) A drunk driving arrest. (not a conviction, which is debatable)
2) A domestic call out by the police with no arrests and no restraining orders.
3) Almost any misdemeanor that doesn't include domestic violence
4) A "good" defensive gun use.
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Doesn't matter if temp or perm.
My previous response was to the poster who mentioned an RO, or maybe it was a Protective Order and I assumed an RO. It wasn't intended to be a direct response to the OP.
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An ex-parte TRO is not a federal disqualifier, but is a state disqualifier.
The federal DQ does not kick in until the restrainee has had a chance to defend against the issuance of the RO in court.
LuvToGoFast
NES Member
FIFY
Sorry you are wrong!
When your LTC is suspended/revoked for ANY reason, you MUST turn everything over to the PD INSTANTLY or face a Felony charge under MGL C. 269 S. 10. And I can tell you that many chiefs love nailing people on this particular law.
So you can only move them out of state BEFORE any suspension/revocation to avoid this charge. And even then MGL requires that you tell the LEOs where they are located out of state or face the same charge.
dcmdon
NES Member
Len, can you point me to the part of MGL C. 269 S. 10 that you are referring to. My eyes glazed over trying to parse it all out and I haven't found anything applicable.
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Al458
NES Member
(i) Whoever knowingly fails to deliver or surrender a revoked or suspended license to carry or possess firearms or machine guns issued under the provisions of section one hundred and thirty-one or one hundred and thirty-one F of chapter one hundred and forty, or firearm identification card, or receipt for the fee for such card, or a firearm, rifle, shotgun or machine gun, as provided in section one hundred and twenty-nine D of chapter one hundred and forty, unless an appeal is pending, shall be punished by imprisonment in a jail or house of correction for not more than two and one-half years or by a fine of not more than one thousand dollars.
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OK, Len, time for a trick question.
My local gun club has an armory with a bunch of 22 target rifles and a few M1As. About 6 people +/- have access.
If someone is 209a'ed do they have to surrender these guns because they have access, or is having their access removed enough?
The club has a standing policy that anyone who loses their LTC has their card key turned off for the armory until they get it back.
My local gun club has an armory with a bunch of 22 target rifles and a few M1As. About 6 people +/- have access.
If someone is 209a'ed do they have to surrender these guns because they have access, or is having their access removed enough?
The club has a standing policy that anyone who loses their LTC has their card key turned off for the armory until they get it back.
The PD would not be looking at the club's armory UNLESS his name was on the FA-10s. In that case it could spell trouble.
Of course, depending on the PD and if he opened his mouth and said "I also manage/have access to club guns", they might confiscate them . . . otherwise it's not an issue.
![[laugh2]](/xen/styles/default/xenforo/smilies.vb/014.gif "Laugh at above [laugh2]")
Missed it the first time I replied. Not a bench trial, it's an administrative hearing. Hearsay is admissible and there is no cross examination/questioning. In fact the CoP may not say anything, they can just go with what they have submitted or the department's lawyer may do the talking. Makes it very difficult to address a specific concern, if they even bothered with one. And really doesn't matter because the judge will side with the CoP regardless.
dcmdon
NES Member
AL458,
Again, MA can't compel you to do something with property that you own lawfully in another state.
Even 129D of chapt 140, the limitation is that this applies to firearms in the state.
What some of you are advancing is that 140/129 actually means that you must surrender all firearms and ammunition possessed in all states.
Finally, based on this citation, it looks like you could buy yourself time by immediately filing an appeal. It appears that simply filing an appeal you gain rights. Regardless of the outcome of the appeal. Of course a smart person would have everything gone before a decision is made on the appeal.
Don
Reference 129D chapt 40
Failure to Surrender: Failure to surrender LTC, FID, Machine Gun License or weapons or ammunition in accordance with the provisions of this section are punishable under c.269, §10(i).
p.s. Frankly the fact that Boudrie has not called me out on this suggests to me that I'm onto something.
Again, MA can't compel you to do something with property that you own lawfully in another state.
Even 129D of chapt 140, the limitation is that this applies to firearms in the state.
What some of you are advancing is that 140/129 actually means that you must surrender all firearms and ammunition possessed in all states.
Finally, based on this citation, it looks like you could buy yourself time by immediately filing an appeal. It appears that simply filing an appeal you gain rights. Regardless of the outcome of the appeal. Of course a smart person would have everything gone before a decision is made on the appeal.
Don
Reference 129D chapt 40
Failure to Surrender: Failure to surrender LTC, FID, Machine Gun License or weapons or ammunition in accordance with the provisions of this section are punishable under c.269, §10(i).
p.s. Frankly the fact that Boudrie has not called me out on this suggests to me that I'm onto something.
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Don,
The way MA LEOs are taught is that if the person does not tell them where all guns/ammo/large cap mags are located, they will charge him under 269-10, no exceptions for stuff outside MA.
You don't have to hand them stuff not in MA, but the MA PD may contact the PD in the other state and request it be confiscated. Other than 209A ROs (actually Fed Law) no other reason demands confiscation in most other states and thus the non-MA PD may tell the MA PD "thanks for letting us know, but we aren't going to confiscate anything". You will have done what the law (or current interpretation) demands and that's all.
On appeals: NO, they come with the letter and take everything at that time. The law says if an appeal has been filed but you can't file an appeal before it is suspended/revoked and therefore can't do it before they come for your stuff. The seminar given chiefs/LOs he makes a big deal of this as a gotcha. Just another law that says something that is impossible to invoke (probably written that way intentionally).
The way MA LEOs are taught is that if the person does not tell them where all guns/ammo/large cap mags are located, they will charge him under 269-10, no exceptions for stuff outside MA.
You don't have to hand them stuff not in MA, but the MA PD may contact the PD in the other state and request it be confiscated. Other than 209A ROs (actually Fed Law) no other reason demands confiscation in most other states and thus the non-MA PD may tell the MA PD "thanks for letting us know, but we aren't going to confiscate anything". You will have done what the law (or current interpretation) demands and that's all.
On appeals: NO, they come with the letter and take everything at that time. The law says if an appeal has been filed but you can't file an appeal before it is suspended/revoked and therefore can't do it before they come for your stuff. The seminar given chiefs/LOs he makes a big deal of this as a gotcha. Just another law that says something that is impossible to invoke (probably written that way intentionally).
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When the gun laws were last rewriten in MA, an early draft had "de novo" added to the hearing requirement. Unfortunately, this was killed in the back room and we never heard who had it pulled.
The standard in the law is now risk of dangerousness, but the courts use the old standard of "did the chief feel he had a reason". If you can prove the chief did not feel he had a valid reason to deny or revoke, you win.
![[rofl]](/xen/styles/default/xenforo/smilies.vb/013.gif "ROFL [rofl]")
