This is what's wrong with MA gun laws

[GSG]

MA courts only pay $6.00/day + $0.10/mile as a witness/travel fee to show up in court. It's an embarrassment as it won't cover the cost of parking alone, but no way does it approach $50.00!

The state just calls it that. It's really just an extortion fee that gets dumped into the general treasury to be wasted along with all the other fees/taxes.

Ref: MGL C. 262 S. 29 (last amended in 1998!)

As I'm sure you know, a lot of non-state entities will have the constable give you a check with a witness fee when they serve you with a summons. The amount I regularly got in MA was $10, but I seem to recall getting $20 once.

 

[Half Cocked]

everything he was charged with was under subsections of MGL 269-10, including what he plead it down to.

Where do you see that?

Still, he was charged there, just not convicted.

The way I read it..... he was convicted of the first charge.

 

[GSG]

Where do you see that?



The way I read it..... he was convicted of the first charge.

So do I.

charged with possession of a firearm without a firearm ID card, fined $250, $50 victim witness fee;

Which is MGL 269-10(h)(1):

(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.

then

possession of a large capacity firearm

Which is MGL 269-10(m):

(m) Notwithstanding the provisions of paragraph (a) or (h), any person not exempted by statute who knowingly has in his possession, or knowingly has under his control in a vehicle, a large capacity weapon or large capacity feeding device therefor who does not possess a valid Class A or Class B license to carry firearms issued under section 131 or 131F of chapter 140, except as permitted or otherwise provided under this section or chapter 140, shall be punished by imprisonment in a state prison for not less than two and one-half years nor more than ten years. The possession of a valid firearm identification card issued under section 129B shall not be a defense for a violation of this subsection; provided, however, that any such person charged with violating this paragraph and holding a valid firearm identification card shall not be subject to any mandatory minimum sentence imposed by this paragraph. The sentence imposed upon such person shall not be reduced to less than one year, nor suspended, nor shall any person convicted under this subsection be eligible for probation, parole, furlough, work release or receive any deduction from his sentence for good conduct until he shall have served such minimum term of such sentence; provided, however, that the commissioner of correction may, on the recommendation of the warden, superintendent or other person in charge of a correctional institution or the administrator of a county correctional institution, grant to such offender a temporary release in the custody of an officer of such institution for the following purposes only: (i) to attend the funeral of a spouse or next of kin; (ii) to visit a critically ill close relative or spouse; or (iii) to obtain emergency medical services unavailable at such institution. Prosecutions commenced under this subsection shall neither be continued without a finding nor placed on file. The provisions of section 87 of chapter 276 relative to the power of the court to place certain offenders on probation shall not apply to any person 17 years of age or over charged with a violation of this section.

The provisions of this paragraph shall not apply to the possession of a large capacity weapon or large capacity feeding device by (i) any officer, agent or employee of the commonwealth or any other state or the United States, including any federal, state or local law enforcement personnel; (ii) any member of the military or other service of any state or the United States; (iii) any duly authorized law enforcement officer, agent or employee of any municipality of the commonwealth; (iv) any federal, state or local historical society, museum or institutional collection open to the public; provided, however, that any such person described in clauses (i) to (iii), inclusive, is authorized by a competent authority to acquire, possess or carry a large capacity semiautomatic weapon and is acting within the scope of his duties; or (v) any gunsmith duly licensed under the applicable federal law.

then

and carrying a loaded firearm without a license, dismissed.

Which is MGL 269-10(a):

Section 10. (a) 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 or place of business; or

(2) having in effect a license to carry firearms issued under section one hundred and thirty-one of chapter one hundred and forty; or

(3) having in effect a license to carry firearms issued under section one hundred and thirty-one F of chapter one hundred and forty; or

(4) having complied with the provisions of sections one hundred and twenty-nine C and one hundred and thirty-one G of chapter one hundred and forty; or

(5) having complied as to possession of an air rifle or BB gun with the requirements imposed by section twelve B; and whoever knowingly has in his possession; or knowingly has under control in a vehicle; a rifle or shotgun, loaded or unloaded, without either:

(1) being present in or on his residence or place of business; or

(2) having in effect a license to carry firearms issued under section one hundred and thirty-one of chapter one hundred and forty; or

(3) having in effect a license to carry firearms issued under section one hundred and thirty-one F of chapter one hundred and forty; or

(4) having in effect a firearms identification card issued under section one hundred and twenty-nine B of chapter one hundred and forty; or

(5) having complied with the requirements imposed by section one hundred and twenty-nine C of chapter one hundred and forty upon ownership or possession of rifles and shotguns; or

(6) having complied as to possession of an air rifle or BB gun with the requirements imposed by section twelve B; shall be punished by imprisonment in the state prison for not less than two and one-half years nor more than five years, or for not less than 18 months nor more than two and one-half years in a jail or house of correction. The sentence imposed on such person shall not be reduced to less than 18 months, nor suspended, nor shall any person convicted under this subsection be eligible for probation, parole, work release, or furlough or receive any deduction from his sentence for good conduct until he shall have served 18 months of such sentence; provided, however, that the commissioner of correction may on the recommendation of the warden, superintendent, or other person in charge of a correctional institution, grant to an offender committed under this subsection a temporary release in the custody of an officer of such institution for the following purposes only: to attend the funeral of a relative; to visit a critically ill relative; or to obtain emergency medical or psychiatric service unavailable at said institution. Prosecutions commenced under this subsection shall neither be continued without a finding nor placed on file.

No person having in effect a license to carry firearms for any purpose, issued under section one hundred and thirty-one or section one hundred and thirty-one F of chapter one hundred and forty shall be deemed to be in violation of this section.

The provisions of section eighty-seven of chapter two hundred and seventy-six shall not apply to any person seventeen years of age or older, charged with a violation of this subsection, or to any child between ages fourteen and seventeen so charged, if the court is of the opinion that the interests of the public require that he should be tried as an adult for such offense instead of being dealt with as a child.

The provisions of this subsection shall not affect the licensing requirements of section one hundred and twenty-nine C of chapter one hundred and forty which require every person not otherwise duly licensed or exempted to have been issued a firearms identification card in order to possess a firearm, rifle or shotgun in his residence or place of business.

The "loaded" part also adds on MGL 269-10(n):

(n) Whoever violates paragraph (a) or paragraph (c), by means of a loaded firearm, loaded sawed off shotgun or loaded machine gun shall be further punished by imprisonment in the house of correction for not more than 21/2 years, which sentence shall begin from and after the expiration of the sentence for the violation of paragraph (a) or paragraph (c).

All are 269-10 violations.

 

[Half Cocked]

Which is MGL 269-10(h)(1):

The first charge is all I was commenting on since it was the only that he was convicted. The reason I question the 269-10 charge is that frequently when you see the charge of "possession of a firearm without a firearm ID card" it is the result of being charged under C140-129C as that is the way the District Court Complaint Language prints it out. It is not worded that way when the charge is 269-10.

I could very well be wrong. I am just making a guess based upon past experience and the Disposition is more fitting to the C140 charge.

 

[Half Cocked]

But no, they definitely don't "pay" witnesses to show up in court.

Did you ever make a submission for it? They do pay........ they just do not volunteer it.

 

[GSG]

The first charge is all I was commenting on since it was the only that he was convicted. The reason I question the 269-10 charge is that frequently when you see the charge of "possession of a firearm without a firearm ID card" it is the result of being charged under C140-129C as that is the way the District Court Complaint Language prints it out. It is not worded that way when the charge is 269-10.

I could very well be wrong. I am just making a guess based upon past experience and the Disposition is more fitting to the C140 charge.

I defer to your LE experience, although this is an internet gun forum, so technically I shouldn't. My problem is that the only penalty laid out in 140-129C is for FA-10 violations, the rest of that section simply says "shall/shall not." The only place in the MGL's I see a penalty applied for violating 140-129C is in 269-10(h)(1). If I'm wrong I welcome correction though, I'm more interested in correct information than I am in being right.

Did you ever make a submission for it? They do pay........ they just do not volunteer it.

Exactly.

 

[Kevlar]

I defer to your LE experience, although this is an internet gun forum, so technically I shouldn't. My problem is that the only penalty laid out in 140-129C is for FA-10 violations, the rest of that section simply says "shall/shall not." The only place in the MGL's I see a penalty applied for violating 140-129C is in 269-10(h)(1). If I'm wrong I welcome correction though, I'm more interested in correct information than I am in being right.

I'm also curious, as 140-129C does not appear on the Master Crime List of chargeable offenses.

 

[Len-2A Training]

Exactly. I've been a "victim witness" in 4 cases as a result of my job. I always heard $50 victim witness fees being assessed on the defendant and seen it in paperwork but never once have I been paid a dime to show up in court. Did not know I was supposed to get $6 or mileage. It was always quite a bit of travel too as it was usually Fall River Juvenile.

Maybe juvenile court is different? Either that or they were just not bothering paying me. Either way, all I ever assumed is that it was the equivalent of an extra fine on the defendant and it was to go into the state treasury for whatever like most everything else.

But no, they definitely don't "pay" witnesses to show up in court.

No, what I quoted applies to every state court in MA (Fed court witness fees are $40.00/day and IRS mileage rate).

Every Subpoena to show up (as opposed to sending records) is SUPPOSED TO include a witness/travel fee. If it does not, it is justifiable grounds for the subpoenaed person NOT TO SHOW UP. From personal experience, I have had lawyers tell me "no fee required" (not true) or act surprised when I advise them that a fee is REQUIRED (by law).

There is ONE EXCEPTION (by law) on this . . . if the person is a government employee, they are NOT to be given a witness/travel fee as their employer (gov't) is supposed to compensate any lost time and mileage.

Did you ever make a submission for it? They do pay........ they just do not volunteer it.

They are supposed to . . . but if the Subpoena is issued by a DA or police prosecutor I wouldn't doubt that they don't pay the fee and the witness has to apply at the court for it . . . I never get involved with those type of Subpoenas, so no personal experience with it.

The first charge is all I was commenting on since it was the only that he was convicted. The reason I question the 269-10 charge is that frequently when you see the charge of "possession of a firearm without a firearm ID card" it is the result of being charged under C140-129C as that is the way the District Court Complaint Language prints it out. It is not worded that way when the charge is 269-10.

I could very well be wrong. I am just making a guess based upon past experience and the Disposition is more fitting to the C140 charge.

There is a "disconnect" with MGLs on licenses and although an FID does NOT cover you for a handgun (post 1998), some language was left in the law that prosecutes for possession of a handgun w/o an FID card. I think that HC nailed this one.

My problem is that the only penalty laid out in 140-129C is for FA-10 violations, the rest of that section simply says "shall/shall not." The only place in the MGL's I see a penalty applied for violating 140-129C is in 269-10(h)(1). If I'm wrong I welcome correction though, I'm more interested in correct information than I am in being right.

It's a result of the "disconnect" I posted above. They were in such a rush to get Ch. 180 passed that they never checked to find any contradictory laws that still remained post-180.

 

[GSG]

They are supposed to . . . but if the Subpoena is issued by a DA or police prosecutor I wouldn't doubt that they don't pay the fee and the witness has to apply at the court for it . . . I never get involved with those type of Subpoenas, so no personal experience with it.

Come to think of it, every time I've been served with a summons by a municipal LEO in MA I've never gotten a witness fee, it's only been when I was served by constables; this is for 4 different district courts as well. In fact, I've only ever gotten a witness fee when landlords/management companies wanted me to testify on their behalf, even in felony criminal cases I just got the summons. I never made that connection until you mentioned that.

There is a "disconnect" with MGLs on licenses and although an FID does NOT cover you for a handgun (post 1998), some language was left in the law that prosecutes for possession of a handgun w/o an FID card. I think that HC nailed this one.

It's a result of the "disconnect" I posted above. They were in such a rush to get Ch. 180 passed that they never checked to find any contradictory laws that still remained post-180.

I'm familiar with the royal stinking mess that the Mass. legislature made passing GCA'98, I know you and I have butted heads on this very issue & the resulting interpretation of some of the conflicting legal language in the past regarding the competition exemption and large cap firearms too. I'm just wondering where a prosectution would arise from other than 269-10(h)(1) for "possession w/ out FID card," since 140-129C doesn't list any penalties for not complying with it.

 

[Rob Boudrie]

Romeo Walker, 38, of Miami, charged with possession of a firearm without a firearm ID card, fined $250, $50 victim witness fee; marked lanes violation and license plate violation, found responsible, filed; possession of a large capacity firearm and carrying a loaded firearm without a license, dismissed.

There are a bunch of things you just can't tell from article

• Was this a member of the criminal class, or an otherwise law abiding person
• What was his record?
• Was he carrying the gun in the "plain English" sense (loaded, on his person) or did he simply have it in the car?
• How was the gun discovered? This could be plain sight; legal search; illegal search or admission by the suspect.
• Was there any chance he could have had the evidence excluded at trial?

If this was a dirtbag with a long rapsheet, this is probably an example of the system failing. On the other hand, if this is an upstanding citizen from a state where people aren't even familiar with the concept of a license being required for unloaded transport caught with an unloaded cased gun in his car, or the discovery of the evidence was possibly tainted, this would probably be a reasonable solution.

The point is you just can't tell from the facts given.

 

[Len-2A Training]

Never made a submission for it, never knew I was entitled to anything. Makes sense that they would not volunteer it. I was only subpoenaed 4 times in 5 years so it was never a big burden to me.

LenS, the subpoena was always mailed to my house by the Assistant DA, the police prosecutor never showed up to any of the cases which was odd because they all involved somebody heavily resisting/attempting to hurt the police and I just happened to be caught up in the mess as well. Guess they are just used to it. I'd do a report on site and the police would send to the court, happened alot but only the most severe cases ever got me a binding witness subpoena.

OK, now I see the disparity . . .

Ref: "Rules of Civil Procedure" Rule 45 (c)
http://www.lawlib.state.ma.us/source/mass/rules/civil/mrcp45.html

Service of a subpoena upon a person named therein shall be made by delivering a copy thereof to such person, or by exhibiting it and reading it to him, or by leaving a copy at his place of abode; and by tendering to him the fees for one day's attendance and the mileage allowed by law. When the subpoena is issued on behalf of the United States or the Commonwealth or a political subdivision thereof, or an officer, or agency of either, fees and mileage need not be tendered.

Hmm!

I don't see where it says that you aren't entitled to them, just that the "server" when it's the gov't, won't give them to you with the Subpoena. I guess you have to demand them when you show up in court, from the Clerk's office.

 

[GSG]

There are a bunch of things you just can't tell from article

A news report without all the facts!?!

 

[TomH]

If I was on a jury, I'd have a real hard time convicting someone of possessing or carrying a gun without a license. I realize such charges would likely never go to a jury. But I'd have a hard time convicting someone of exercising their 2nd Amendment rights.

I would never convict someone on it. I don't care if they were the scum of the earth.