Stuck with an FID? You might be a federally prohibited person

GSG

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***I am not a lawyer, but I posted a link below where you can contact several highly respected Massachusetts attorneys. What I am posting here is based on my understanding of Massachusetts and federal law; I've provided links so that you can do your own research and draw your own conclusions, but if you think that any of this may apply to you, contact a real lawyer...I'm just some guy on the Internet. [laugh]***

A sad and scary fact about the Massachusetts gun laws is that there are many people who unknowingly are federally prohibited persons, simply because of the complexity of state law and how it relates to federal law.

If you are a Massachusetts resident who has a misdemeanor conviction where the possible sentence was more than 2 years of incarceration, you are federally prohibited from possessing firearms or ammunition, even if you are eligible for or in possession of an FID card! This bizarre legal issue is the result of the wording of Massachusetts state laws and how the federal courts have interpreted them. (Keep in mind, this only applies to certain misdemeanor convictions; if your local police chief pulls the "suitability" BS on you, if you can't apply for an LTC because you're under the age of 21, or if you're statutorily prohibited from obtaining an LTC for misdemeanor convictions where the maximum possible length of incarceration was less than 2 years, then this does not apply to you).

Massachusetts General Laws Chapter 140 Section 131 lists what convictions will disqualify one from getting a Mass. LTC:

(i) has, in any state or federal jurisdiction, been convicted or adjudicated a youthful offender or delinquent child for the commission of (a) a felony; (b) a misdemeanor punishable by imprisonment for more than two years; (c) a violent crime as defined in section 121; (d) a violation of any law regulating the use, possession, ownership, transfer, purchase, sale, lease, rental, receipt or transportation of weapons or ammunition for which a term of imprisonment may be imposed; or (e) a violation of any law regulating the use, possession or sale of controlled substances as defined in section 1 of chapter 94C;

Massachusetts General Laws Chapter 140 Section 129B lists what convictions will disqualify one from getting a Mass. FID:

i) has ever, in a court of the commonwealth, been convicted or adjudicated a youthful offender or delinquent child, both as defined in section 52 of chapter 119, for the commission of: (a) a felony; (b) a misdemeanor punishable by imprisonment for more than two years; (c) a violent crime as defined in section 121; (d) a violation of any law regulating the use, possession, ownership, transfer, purchase, sale, lease, rental, receipt or transportation of weapons or ammunition for which a term of imprisonment may be imposed; or (e) a violation of any law regulating the use, possession or sale of controlled substances, as defined in section 1 of chapter 94C including, but not limited to, a violation under said chapter 94C; provided, however, that except for the commission of a violent crime or a crime involving the trafficking of controlled substances, if the applicant has been so convicted or adjudicated or released from confinement, probation or parole supervision for such conviction or adjudication, whichever is last occurring, not less than five years immediately preceding such application, such applicant’s right or ability to possess a non-large capacity rifle or shotgun shall be deemed restored in the commonwealth with respect to such conviction or adjudication and such conviction or adjudication shall not disqualify such applicant for a firearm identification card;

The bolded portion of the above paragraph is where the problem begins. Basically, if you have certain convictions, you are barred for life from obtaining an LTC in Massachusetts. But if you wait 5 years from the date of conviction, you are eligable for an FID card. On the surface this seems like if you wait 5 years then you can legally own non-large capacity rifles and shotguns.

The problem is that in a recent federal case, the courts ruled that if someone hasn't had their full firearm rights restored at the state level then they are still federally prohibited from possessing firearms and ammunition. In other words, if you live in Massachusetts have one of those misdemeanor convictions where the possible sentence was more than 2 years incarceration, you cannot legally purchase or possess any firearms or ammunition, even if you were issued an FID card later on. A violation of this is a federal felony. [shocked]

The federal case was Caron v. United States (1998), which says in part:

The phrase “may not … possess … firearms,” then, must be interpreted under either of what the parties call the two “all-or-nothing” approaches. Either it applies when the State forbids one or more types of firearms, as the Government contends; or it does not apply if state law permits one or more types of firearms, regardless of the one possessed in the particular case.

Under the Government’s approach, a state weapons limitation on an offender activates the uniform federal ban on possessing any firearms at all. This is so even if the guns the offender possessed were ones the State permitted him to have. The State has singled out the offender as more dangerous than law-abiding citizens, and federal law uses this determination to impose its own broader stricture.

One of the more common Massachusetts misdemeanors with a maximum penalty of more than two years incarceration is a DUI charge.

On May 27th, 1994 the maximum penalty for a 1st offense Massachusetts DUI was increased to 2.5 years.

The section of law on this is Massachusetts General Laws Chapter 90 Section 24(1)(a)(1), which says in part:

Section 24. (1) (a) (1) Whoever, upon any way or in any place to which the public has a right of access, or upon any way or in any place to which members of the public have access as invitees or licensees, operates a motor vehicle with a percentage, by weight, of alcohol in their blood of eight one-hundredths or greater, or while under the influence of intoxicating liquor, or of marijuana, narcotic drugs, depressants or stimulant substances, all as defined in section one of chapter ninety-four C, or the vapors of glue shall be punished by a fine of not less than five hundred nor more than five thousand dollars or by imprisonment for not more than two and one-half years, or both such fine and imprisonment.

Because of the maximum possible length of time that you could be incarcerated for if convicted of violating this, if you have a Massachusetts DUI conviction you are statutorily prohibited from getting a Mass. LTC; as I discussed above, you could get an FID if you waited 5 years after the conviction, but you would still be federally prohibited from possessing firearms.

Some people suggest that one just has to move to another state with fewer firearms restrictions, and then it is legal to own guns again. This is not possible with a Massachusetts DUI, because a Massachusetts DUI prohibits you at both the state and federal level from possessing firearms or ammunition. Even though under state law a Massachusetts DUI is a misdemeanor offense, under federal law state misdemeanor convictions where the maximum penalty is more than 2 years will prohibit one from legally possessing firearms.

The federal law on the subject is 18 USC § 922(g), which says:

(g) It shall be unlawful for any person—
(1) who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year;
<snip>
to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.

The phrase "crime punishable by imprisonment for a term exceeding one year" is defined by 18 U.S.C. § 921(a)(20)(B), which says:

(20) The term “crime punishable by imprisonment for a term exceeding one year” does not include—
(A) any Federal or State offenses pertaining to antitrust violations, unfair trade practices, restraints of trade, or other similar offenses relating to the regulation of business practices, or
(B) any State offense classified by the laws of the State as a misdemeanor and punishable by a term of imprisonment of two years or less.
What constitutes a conviction of such a crime shall be determined in accordance with the law of the jurisdiction in which the proceedings were held. Any conviction which has been expunged, or set aside or for which a person has been pardoned or has had civil rights restored shall not be considered a conviction for purposes of this chapter, unless such pardon, expungement, or restoration of civil rights expressly provides that the person may not ship, transport, possess, or receive firearms.

What this means is that unless you get a misdemeanor conviction like this overturned at the state level and have your full firearms rights restored, you are federally prohibited from possessing firearms and ammunition for the rest of your life.

There are several other convictions that are misdemeanors under Mass. state law that will trigger this federal prohibition; I'm listing some of them here as examples, but this is not an all-inclusive list.

Simple Assault/Assault & Battery

MGL 265-13A says in part:

Section 13A. (a) Whoever commits an assault or an assault and battery upon another shall be punished by imprisonment for not more than 2 1/2 years in a house of correction or by a fine of not more than $1,000.

(The actor Mark Wahlberg has a conviction for this in Mass., and is a federally prohibited person because of it).

Assault & Battery on public employees

MGL 265-13D says:

Section 13D. Whoever commits an assault and battery upon any public employee when such person is engaged in the performance of his duties at the time of such assault and battery, shall be punished by imprisonment for not less than ninety days nor more than two and one-half years in a house of correction or by a fine of not less than five hundred nor more than five thousand dollars.

Carrying a firearm while under the influence

MGL 269-10H says:

Chapter 269: Section 10H. Carrying loaded firearm while under influence of liquor, marijuana, narcotic drugs, depressants or stimulant substances; punishment


Section 10H. Whoever, having in effect a license to carry firearms issued under section 131 or 131F of chapter 140, carries on his person, or has under his control in a vehicle, a loaded firearm, as defined in section 121 of said chapter 140, while under the influence of intoxicating liquor or marijuana, narcotic drugs, depressants or stimulant substances, all as defined in section 1 of chapter 94C, or the vapors of glue shall be punished by a fine of not more than $5,000 or by imprisonment in the house of correction for not more than two and one-half years, or by both such fine and imprisonment.

Note that there's no BAC requirement for carrying under the influence. [thinking]

Something else to keep in mind, other states have similar issues with their laws, so if you have gotten in legal trouble in states other than Mass., then you need to find out what the maximum penalty was for the crime at the time of your conviction.

If you do have a disqualifying misdemeanor conviction like this, you can petition the Massachusetts Firearms Licensing Review Board to have your firearms rights restored:

The FLRB has the authority to review only misdemeanor convictions. Further, there may be more than one conviction, but all convictions must arise from a single incident. The FLRB may not review convictions for:

a felony; or
an assault or battery on a family or household member, or person with whom there is/was a substantive dating relationship, as defined by G.L. c. 209A, § 1; or
a crime involving use, possession, ownership, transfer, purchase, sale, lease, rental, receipt or transportation of weapons or ammunition for which a term of imprisonment may be imposed; or
a crime regulating the use, possession or sale of controlled substances.
In addition, an individual may not apply for review until after the passage of five (5) years since conviction or release from supervision, whichever is last occurring. The FLRB will review criminal histories as part of the petition review process.

People looking for a review have the burden of proof, by clear and convincing evidence, that they are eligible and suitable to possess an FID or LTC. The petitioner will have the opportunity to appear and/or submit documentary evidence. The FLRB will not provide legal advice to petitioners.

If the FLRB determines that the petitioner is a suitable candidate for an LTC relative to the misdemeanor conviction(s), the application process and final decision of whether or not to issue a license remains with the local police chief.

If you are going to petition them, I'd strongly suggest that you contact a Massachusetts firearms attorney to help you with this process. This is a link to a list of several firearms attorneys in Mass.

I would also suggest that if you have any kind of criminal record at all, then you should consult with an attorney before you even consider applying for a Massachusetts LTC or FID. This can save you a lot of time, money and aggravation in the long run.
 
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Great summary - covered many times before but never explain in such depth.

Thanks. [grin] It comes up often on here, but there's a heck of a lot of info involved in describing it, so I figured if I lay it all out once then people can be referred to it later on when questions relating to this come up.
 
Great summary.

Albeit a bit outside of the intended scope of the thread, another further issue with the Massachusetts restriction for an OUI conviction is that a person with a conviction prior to 5/27/94 is LTC eligible but someone with an OUI conviction after that date is not.

Personally, I think that most non-violent misdemeanors shouldn't restrict one from obtaining an LTC, but that issue in particular is further evidence of the lunacy of MA gun laws.
 
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that issue in particular is further evidence of the lunacy of MA gun laws.

You're not kidding. I almost find it hard to believe that Mass. would issue you a worthless state license when you're federally prohibited, but...c'est la Bay State.
 
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I believe there was a case a few years back involving a man from Rutland under these circumstances. You may want to reference that, unless that Caron case you already mentioned was this one.
 
That was an excellent summary and analysis.

Thanks. [grin]

I believe there was a case a few years back involving a man from Rutland under these circumstances. You may want to reference that, unless that Caron case you already mentioned was this one.

You're right, thanks for posting that! I did some serious online digging, and I was only able to find a news story about his arrest, nothing more on the case. Below is a link to the full article:

http://www.thefreelibrary.com/Rutla...+Firearm+Charge,+Announces+U.S....-a084193393

WORCESTER, Mass. -- A Rutland man was arrested and charged with a federal firearm offense.

United States Attorney Michael J. and J. Dewey Webb, Special Agent in Charge of the U.S. Bureau of Alcohol, Tobacco and Firearms in New England, announced today that ARTHUR MARCHAND, age 53, of 13 Johnson Way, in Rutland, Massachusetts, was arrested yesterday after federal and local law enforcement agents executed a search warrant at his residence for firearms.

The complaint, which was filed today, charges that MARCHAND possessed a firearm after having been convicted of a felony offense. The complaint alleges that law enforcement agents recovered from MARCHAND's residence as many as seventeen firearms, and numerous rounds of assorted ammunition.

MARCHAND had an initial appearance today before U.S. Magistrate Judge Charles B. Swartwood, III and was released on a $10,000 unsecured bond. Magistrate Judge Swartwood scheduled a probable cause hearing for April 19, 2002 in federal court in Boston. If convicted, MARCHAND faces up to ten years in prison for this offense.

I'll keep digging and see if I can find more info on the disposition of his case.

I also found a post here on NES where it was mentioned that someone had been charged for violating this.

http://www.northeastshooters.com/vb...D-waiting-period-and-criminal-record-question

This second issue is described by Chief Ron Glidden, chairman of the MA Gun Control Advisory Board, in his book "Law Enforcement Guide to Firearms Law." On page 48, 4th Edition, he writes:

6. Felony Convictions. Although in some cases the licensing authority will be required to issue a [FID] card to a convicted felon (5 years after conviction), this would not allow ownership of a rifle or shotgun. Such ownership is prohibited for delongs under federal law.

I also found this federal case posted by M1911:

US v. Nazzaro (1993):

Nazzaro argued that the provisions of Mass Gen. L. ch. 140, 129B which allow a convicted felon to obtain a FID five years after conviction or release from jail, and thereby possess a firearm at home, when taken in conjunction with his possession of a valid FID and the failure of authorities to revoke same, constituted a "restoration of civil rights" within the meaning of 18 U.S.C. 921(a)(20), thus taking his convictions for rape and assault and battery with a dangerous weapons--the Massachusetts felonies-- outside the reach of federal firearms law. The trial court disagreed, ruling that because possession of a firearm is not a "civil right" in Massachusetts, defendant's possession of the FID and right to possess the firearms at issue cannot constitute a "restoration of civil rights."

I'll post more info on the subject as I find it.
 
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I almost find it hard to believe that Mass. would issue you a worthless state license when you're federally prohibited, but...c'est la Bay State.

So I stumbled across a little more info on this subject while nerding up the MA laws on another subject. [laugh]

MGL 140-129b(3) says (with my added emphasis):

(3) The licensing authority may not prescribe any other condition for the issuance of a firearm identification card and shall, within 40 days from the date of application, either approve the application and issue the license or deny the application and notify the applicant of the reason for such denial in writing; provided, however, that no such card shall be issued unless the colonel has certified, in writing, that the information available to him does not indicate that the possession of a rifle or shotgun by the applicant would be in violation of state or federal law.

In other words, MSP is not supposed to clear federally prohibited persons to be issued FID cards. However, they obviously still do this, as the several cases I've posted above show.

***Edited to add***

MGL 140-129B(14) also says the following regarding FID cards:

(14) Nothing in this section shall authorize the purchase, possession or transfer of any weapon, ammunition or feeding device that is, or in such manner that is, prohibited by state or federal law.

But later in section 15 it tells us who's to blame...EOPS:

(15) The secretary of the executive office of public safety, or his designee, may promulgate regulations to carry out the purposes of this section.
 
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Good find. Yeah, I saw some other links with info about his campaign contributions, the Worcester warehouse fire, etc., but the only link I found related to his gun case was the one that I posted.
 
The sjc didn't deal with the ammunition question in that case, so all that says is a jury will convict on that charge.
 
Yeah, but can you give away ammunition?

Yes, it would appear so.

MGL 140-129C says in part:

No person shall sell, give away, loan or otherwise transfer a rifle or shotgun or ammunition other than (a) by operation of law, or (b) to an exempt person as hereinafter described, or (c) to a licensed dealer, or (d) to a person who displays his firearm identification card, or license to carry a pistol or revolver.

Subsection (a) says "by operation of law," and the only thing not permitted under MGL 140-122B is ammunition sales without license to sell. However, IMO that may not pass the BS sniff test.
 
Post 10 should be it's own thread in MA gun laws and I nominate it to be a sticky. Entitle it, "what technical firearms violations will make you a federally prohibited person in MA" or somethign like that...
 
Actually, that's post #13, #10 is highlighting the issues with licenses apparently being issued in violation of state law.

But I'll get right on that post, a mod will have to make it a sticky.

Sorry, I was reading 13 thinking it was 10. And yes, 13 is the one I think should be it's own post.
 
I just found a piece of Mass. case law that touches on this subject, where someone was brought up on federal charges for possessing firearms after a similar disqualifying "misdemeanor" conviction.

The case is Comm. v. Indelicato (1996), 40 Mass. App. Ct. 944, which says in part:

The defendant appeals from an order, entered without an evidentiary hearing, denying his motion for a new trial on the ground that his pleas of guilty were involuntary. The pleas, to reduced charges of assault and battery and carrying a dangerous weapon, to wit, a knife, had been entered thirteen months earlier. He tendered the pleas, he contends, on advice from his then attorney that, because neither charge was a felony, his convictions would not impinge on his right to possess or carry firearms -- a consideration that was important to him because he possessed a number of handguns, rifles, and shotguns, as well as ammunition therefor. None of this is reflected in the transcript of the defendant's change-of-plea hearing, but it is supported by an affidavit furnished by his then attorney, who states that he advised the defendant that his guilty pleas "would not preclude him from seeking a license to carry a firearm. " This advice was predicated on an assumption that both offenses to which the defendant was pleading guilty were misdemeanors, see G. L. c. 140, s.s. 129B, first par., at (a), and 131, second par.; but it failed to take account of 18 U.S.C. s. 922(g)(1)(1988), prohibiting felons from having possession of firearms or ammunition. Under the Federal law, a felon is one "who has been convicted in any court of a crime punishable by imprisonment for a term exceeding one year"; and although the term "crime punishable by imprisonment for a term exceeding one year" is itself defined to exclude "any State offense classified by the laws of the State as a misdemeanor and punishable by a term of imprisonment of two years or less," 18 U.S.C. s. 921 (a)(20)(B)(1988), that does not exclude either assault and battery, which is punishable by up to two and one-half years in a house of correction, G. L. c. 265, s. 13A, or possession of certain types of knives, which is punishable by 8 similar sentence if the violator has no previous felony conviction, G. L. c. 269, s. 10(b).

Eleven months after his conviction on the guilty plea, the defendant was charged with a number of Federal offenses, four of which were for being a felon in possession of various firearms and ammunition. The Federal District Court judge, formerly a Massachusetts Superior Court judge, relying on settled precedent, ruled against a defense based on the defendant's reliance on the advice of counsel, and stated:

"Because the federal gun statute establishes more stringent requirements for gun ownership than does state law, many other Massachusetts gun owners convicted of state misdemeanors may find that they, like Michael Indelicato, are unintentionally violating federal law. There is little, if anything, that a federal district judge can do to

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ameliorate the effect of this disparity between state and federal law, other than perhaps to sound a loud enough warning bell to alert defense attorneys and state officials to this little known but significant interplay between state and federal law."
 
I thought the charge for this was 'prohibited person in possession' not 'felon in..'? Though the argument for that is what does possession really mean. Does it mean owning a firearm or does that include even touching a firearm under supervision of one who legally owns it (as in accidentally taking a prohibited person to the range).
 
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I thought the charge for this was 'prohibited person in possession' not 'felon in..'?

When it comes to the courts, sometimes the justices are on their game, other times they completely waffle it. Here's a case where they "explain" the safeties on a Glock.

http://masscases.com/cases/app/42/42massappct401.html

A ballistics expert testified that a nine-millimeter Glock firearm-the weapon in this case-contains three internal safety mechanisms: the trigger guard, the firing pin safety, and the drop safety. The trigger guard, which is "located in the trigger" and protrudes from the trigger, prevents the trigger from being pulled back. The only way the trigger can be moved from a rigid position is by depressing the protruding safety lever; when the lever is depressed, the trigger may be pulled and the weapon fired. The firing pin safety prevents the firing pin from striking the cartridge until the trigger is pulled. The drop safety prevents the weapon from firing by any occurrence or accident other than by pulling the trigger. Thus, even with a live round in the chamber, the weapon cannot, under any circumstances, be fired except by first releasing the trigger guard. The expert also testified that Boston police officers are required to carry their weapons with a round in the chamber.

[Note 4] The trigger guard at some point had been released, obviously. When, and under what circumstances, is unknown. There was no evidence that more than one round was fired.

[rolleyes]

Though the argument for that is what does possession really mean. Does it mean owning a firearm or does that include even touching a firearm under supervision of one who legally owns it (as in accidentally taking a prohibited person to the range).

The crime is possession, not ownership, otherwise every felon caught with a pistol in their pants would have a lawyer saying "He didn't own it, he was just holding it for a friend." [wink] And people have been charged for being a prohibited person in possession, even just for temporary use at a range, even when they weren't prohibited by a criminal conviction. A few examples were recently posted in another thread on the subject.
 
I thought the charge for this was 'prohibited person in possession' not 'felon in..'? Though the argument for that is what does possession really mean. Does it mean owning a firearm or does that include even touching a firearm under supervision of one who legally owns it (as in accidentally taking a prohibited person to the range).

The courts have set very low standards for the proof of possession.

In United States v. Adkins, 196 F.3d 1112, 1115, 1117-18 (10th Cir.1999), the Tenth Circuit held that a convicted felon violated 18 U.S.C. § 922(g)(1) when, in his friend's presence, he carried the gun she had just purchased from the gun store to her car. Explaining the law, the court stated that once it was established that a felon held a gun even “for a mere second or two,” the felon was guilty of possessing a firearm unless he truly did not know that the item was a firearm. See id.

In United States v. Lane, 267 F.3d 715, 716-17, 719 (7th Cir. 2001), the Seventh Circuit affirmed the defendant’s conviction of violating 18 U.S.C. § 922(g)(1) after he, being a prohibited person, inspected and purchased on behalf of his girlfriend, a firearm, which was later found in the house the couple shared.

And, even if the prohibited person is completely unaware that they are breaking the law, they can still be held criminally liable. See United States v. Hutzell, 217 F.3d 966 (8th Cir. 2001).
 
The courts have set very low standards for the proof of possession.

In United States v. Adkins, 196 F.3d 1112, 1115, 1117-18 (10th Cir.1999), the Tenth Circuit held that a convicted felon violated 18 U.S.C. § 922(g)(1) when, in his friend's presence, he carried the gun she had just purchased from the gun store to her car. Explaining the law, the court stated that once it was established that a felon held a gun even “for a mere second or two,” the felon was guilty of possessing a firearm unless he truly did not know that the item was a firearm. See id.

In United States v. Lane, 267 F.3d 715, 716-17, 719 (7th Cir. 2001), the Seventh Circuit affirmed the defendant’s conviction of violating 18 U.S.C. § 922(g)(1) after he, being a prohibited person, inspected and purchased on behalf of his girlfriend, a firearm, which was later found in the house the couple shared.

And, even if the prohibited person is completely unaware that they are breaking the law, they can still be held criminally liable. See United States v. Hutzell, 217 F.3d 966 (8th Cir. 2001).

Well that clears that up, but my concern is any repercusions on the legal owner who's gun is used by a prohibited person.
 
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