Unlicensed Spouse and Access to Firearms

[drock02]

I know this sounds ridiculous, but I'm trying to get clarity based on some feedback I got from a firearm instructor that I believe is WRONG!

Scenario- Husband has Class A LTC, has one weapon in the house kept in a biometric safe under the bed. Wife is not licensed. In addition to his own finger print to access safe, Husband also enrolled Wife's prints to access weapon due to an intruder in the house.

So- I'm told that this practice is OK! Husband licensed, gun locked up. If wife (unlicensed- and no weapon training) needed to use weapon (i.e. Husband on travel), she could "legally" use weapon to thwart intruder- shoot, kill, wound, whatever.

Am I missing something? Is there some crazy law that says by extension this is ok???

Appreciate a sanity check here...

 

[RoterTeufel]

Who gave you your training?
Or is this some buddy of yours?

 

[Mike-Mike]

The second he gives her access.. he has committed a storage violation. However, if she "somehow" gained access to the gun to save her life, she and he would most likely be OK legally... but at that point who would really care.

 

[drock02]

It wasn't me, my brother in law just got his license

- - - Updated - - -

The second he gives her access.. he has committed a storage violation. However, if she "somehow" gained access to the gun to save her life, she and he would most likely be OK legally... but at that point who would really care.

I seem to remember reading about a case years ago on the form where this exact scenario happened and both ended up serving time. Him for allowing her access illegally and her for shooting the intruder (can't remember if the person was killed)?

 

[RKG]

The second he gives her access.. he has committed a storage violation. . . .

Would you set out how you reach this conclusion?

 

[Smokewagon]

The second he gives her access.. he has committed a storage violation. However, if she "somehow" gained access to the gun to save her life, she and he would most likely be OK legally... but at that point who would really care.

Best answer.

Besides, much less of a headache to just get her licensed.

 

[Mike-Mike]

Would you set out how you reach this conclusion?

M.G.L. c. 140, § 131L makes it unlawful to store or keep any firearm, rifle or shotgun including, but not limited to, large capacity weapons, or machine gun in any place unless such weapon is secured in a locked container or equipped with a tamper-resistant mechanical lock or other safety device, properly engaged so as to render such weapon inoperable by any person other than the owner or other lawfully authorized.

 

[Len-2A Training]

I seem to remember reading about a case years ago on the form where this exact scenario happened and both ended up serving time. Him for allowing her access illegally and her for shooting the intruder (can't remember if the person was killed)?

M.G.L. c. 140, § 131L makes it unlawful to store or keep any firearm, rifle or shotgun including, but not limited to, large capacity weapons, or machine gun in any place unless such weapon is secured in a locked container or equipped with a tamper-resistant mechanical lock or other safety device, properly engaged so as to render such weapon inoperable by any person other than the owner or other lawfully authorized.

As Mike pointed out, if he allows access he's in violation of S. 131L and will very likely be prosecuted and convicted.

If she gains access, they can charge her with illegal possession. Without a public hue and cry over it, my bet is that a DA would prosecute.

Outcome - very expensive legal bills and good chance of PP status for life at least, plus some jail time possible as well.

$2-300 for course and LTC is pretty good insurance.

 

[ThePreBanMan]

I told my GF that if she ever needed to defend herself while I was out of the house - that we would both go to jail. So I was either going to deny her the combination to the safe or she can get her license. She got her license. Like Len said - why even take a chance. Plus it's just useful. She can buy you ammo for Christmas, she can transport your guns, take ownership or sell if god forbid something happened to you, etc.

 

[aeromarine]

As Mike pointed out, if he allows access he's in violation of S. 131L and will very likely be prosecuted and convicted.

If she gains access, they can charge her with illegal possession. Without a public hue and cry over it, my bet is that a DA would prosecute.

Outcome - very expensive legal bills and good chance of PP status for life at least, plus some jail time possible as well.

$2-300 for course and LTC is pretty good insurance.

Yes, having the spouse get an LTC would be quite wise and in the scheme of things possibly very cheap insurance. However, many women, like my wife, have absolutely no interest in firearms. She's not against them in any way and she is actually quite thankful that they give me so much enjoyment and satisfaction. I feel exactly the same way about her quilting. However, the potential legal consequences of having firearms in the home always concerned me as did the complicating estate consequences should I unexpectedly meet my demise and she was left with guns that needed to be disposed. So many, many years ago I had her get an FID card because an FID would cover her for all types of firearms as long as they remained in the house. In my case it took a bit of persuasion to have her do that but in the end she understood why it was a smart thing to do. So I would suggest you at least have your wife obtain an FID card even if just for one six year period of issue. Even if she were to let it lapse she would still be shielded from criminal prosecution for possession in the home as that would only be treated as civil and not a criminal offense.

 

[Keeper]

My wife still wonders what's really in the safe.

 

[RKG]

As Mike pointed out, if he allows access he's in violation of S. 131L and will very likely be prosecuted and convicted.

If she gains access, they can charge her with illegal possession. Without a public hue and cry over it, my bet is that a DA would prosecute.

Outcome - very expensive legal bills and good chance of PP status for life at least, plus some jail time possible as well.

$2-300 for course and LTC is pretty good insurance.

Husband has committed "storage violation" only if wife is not "lawfully authorized."

Whether wife's authorization is "lawful" would seem to turn on whether wife's momentary possession, in the home, was unlawful.

That question, in turn, would seem to be governed by ch. 269, sec. 10(a).

It's early in the morning and it's cold outside, so I may have missed it, but I don't how 269/10(a) outlaws such momentary possession.

 

[Knuckle Dragger]

Husband has committed "storage violation" only if wife is not "lawfully authorized."

Whether wife's authorization is "lawful" would seem to turn on whether wife's momentary possession, in the home, was unlawful.

That question, in turn, would seem to be governed by ch. 269, sec. 10(a).

It's early in the morning and it's cold outside, so I may have missed it, but I don't how 269/10(a) outlaws such momentary possession.

This.
The only way hubby is going to get charged with a 131L violation based upon his wife's access to the gun is if they get in a fight and she throws the gun in the bushes.

 

[allen-1]

My wife still wonders what's really in the safe.

My wife has access to the gun-safe. Some of her guns are in it, and should something happen to me -as my primary heir and executor she'll need access to it.

1) That box in the back? Just parts, optics, stuff like that.
2) No, that's the same number of rifles I've had. I keep them in the socks to keep them from scratching each other.

 

[Len-2A Training]

Yes, having the spouse get an LTC would be quite wise and in the scheme of things possibly very cheap insurance. However, many women, like my wife, have absolutely no interest in firearms. She's not against them in any way and she is actually quite thankful that they give me so much enjoyment and satisfaction. I feel exactly the same way about her quilting. However, the potential legal consequences of having firearms in the home always concerned me as did the complicating estate consequences should I unexpectedly meet my demise and she was left with guns that needed to be disposed. So many, many years ago I had her get an FID card because an FID would cover her for all types of firearms as long as they remained in the house. In my case it took a bit of persuasion to have her do that but in the end she understood why it was a smart thing to do. So I would suggest you at least have your wife obtain an FID card even if just for one six year period of issue. Even if she were to let it lapse she would still be shielded from criminal prosecution for possession in the home as that would only be treated as civil and not a criminal offense.

Bolded part is not true wrt handguns, ever since 1998. It would only have been true if SHE obtained said handguns via a FID and a "Permit to Purchase" (which are as plentiful as unicorns). She needs the LTC to protect her.

Husband has committed "storage violation" only if wife is not "lawfully authorized."

Whether wife's authorization is "lawful" would seem to turn on whether wife's momentary possession, in the home, was unlawful.

That question, in turn, would seem to be governed by ch. 269, sec. 10(a).

It's early in the morning and it's cold outside, so I may have missed it, but I don't how 269/10(a) outlaws such momentary possession.

I normally won't duel with an attorney, and not being one myself I'll hazard my layman's expectations regarding what you posted.

I would expect a MA court to rule that "lawfully authorized" in their opinion means "lawfully authorized by the Commonwealth" and not the Husband, ergo someone with a proper LTC or FID for the gun in question.

As for 269-10(a), here's what the "LE expert" has to say on that matter:

Home or Business: Subsection (a)(1) is the beginning of a list of exemptions from prosecution under chapter 269, section 10. It lists being present at his residence or place of business as an exemption. While such may be an exemption to prosecution of section 10, this section also states that the section is not an exemption from the requirements of chapter 140, section 129C which require as a minimum an FID card or LTC for rifles, shotguns or firearms and ammunition in the home or place of business. A violation for such cases is a violation of c. 140, section 129C and not of c. 269, section 10.

I agree that a MA court is likely to find the above bolded section as valid. I'm not directly aware of any case law on the matter but suspect that there probably is some out there. In any case, the legal battle is likely to be MUCH more expensive than the $2-300 to get licensed. I look at it as "insurance" money, I pay to insure my car, house, guns, etc. why not avoid litigation expenses too?

 

[kingfisher]

Yes, having the spouse get an LTC would be quite wise and in the scheme of things possibly very cheap insurance. However, many women, like my wife, have absolutely no interest in firearms. She's not against them in any way and she is actually quite thankful that they give me so much enjoyment and satisfaction. I feel exactly the same way about her quilting. However, the potential legal consequences of having firearms in the home always concerned me as did the complicating estate consequences should I unexpectedly meet my demise and she was left with guns that needed to be disposed. So many, many years ago I had her get an FID card because an FID would cover her for all types of firearms as long as they remained in the house. In my case it took a bit of persuasion to have her do that but in the end she understood why it was a smart thing to do. So I would suggest you at least have your wife obtain an FID card even if just for one six year period of issue. Even if she were to let it lapse she would still be shielded from criminal prosecution for possession in the home as that would only be treated as civil and not a criminal offense.

Bolded part is not true wrt handguns, ever since 1998. It would only have been true if SHE obtained said handguns via a FID and a "Permit to Purchase" (which are as plentiful as unicorns). She needs the LTC to protect her.

In fact, with an expired LTC, I believe she'd be shielded from criminal prosecution even for possession outside the home (at least once).

 

[terraformer]

Husband has committed "storage violation" only if wife is not "lawfully authorized."

Whether wife's authorization is "lawful" would seem to turn on whether wife's momentary possession, in the home, was unlawful.

That question, in turn, would seem to be governed by ch. 269, sec. 10(a).

It's early in the morning and it's cold outside, so I may have missed it, but I don't how 269/10(a) outlaws such momentary possession.

Define "lawfully authorized". It's not defined but it will be unlicensed possession and no applicability of the §129C exemptions. That is the violation of §131L. When everyone is by default a prohibited person, everyone is by default a dangerous and/or irresponsible person unless they prove otherwise by getting licensed.

 

[RKG]

Define "lawfully authorized". It's not defined but it will be unlicensed possession and no applicability of the §129C exemptions. That is the violation of §131L. When everyone is by default a prohibited person, everyone is by default a dangerous and/or irresponsible person unless they prove otherwise by getting licensed.

Grammatically, "authorized" must mean authorized in fact by the owner of the firearm. To interpret "authorized" to mean "authorized by law" would render the immediate modifier "lawfully" nugatory.

"Lawfully" I interpret to mean authorized in a manner contemplated by law. Whatever else that might mean, the literal words of 269/10(a) equate being in the home and holding an LTC with respect to temporary or transient possession in the home.

Len raises the issue of a possible conflict between 269/10(a) and 140/129C. If there is a conflict, then 269/10(a) has to prevail in the case of a criminal prosecution, where all ambiguities have to be resolved in favor of the defendant. However, I don't see a conflict. The purpose of the present language in 129C was to accommodate the change in language in 269/10(a), from carrying to possession. (That change was made to deal with gang bangers arguing that being seated in a stationary car, with a pistol on the floor, they might be in possession (or constructive npossession), but they weren't "carrying.") With the change, someone disqualified from being licensed could have someone give them a gun to keep in the house, of which they would be the owner and permanent possessor.

In fact, the argument Len ascribes to an expert proves too much. A person can be legally in possession of an object, even if that object is in a locked container to which the person does not have a key. (Legions of drug mules have argued that they were not in possession of drugs they were transporting when the drugs were in locked trunks or other containers. They all lost.). If Len's expert is correct, the owner and wife may be in violation even if wife does NOT have the combination.

Note: we are not talking here about what people should do. We are talking, ultimately, about how a Court in the future might resolve a question that, so far as I am aware, has yet to be addressed.

 

[Rob Boudrie]

In fact, the argument Len ascribes to an expert proves too much. A person can be legally in possession of an object, even if that object is in a locked container to which the person does not have a key. (Legions of drug mules have argued that they were not in possession of drugs they were transporting when the drugs were in locked trunks or other containers. They all lost.). If Len's expert is correct, the owner and wife may be in violation even if wife does NOT have the combination.

By the above logic, even having prescribed Oxycodone locked in my safe does not protect my family members from a charge of possessing narcotics without an Rx.

I look at it as "insurance" money, I pay to insure my car, house, guns, etc. why not avoid litigation expenses too?

It's also insurance if you are taking a car trip and your spouse is going to take the car with your backup gun in your luggage in the trunk. The policy also pays off if you have a medical emergency when out with a family member and you can say "here, take this" rather than explain to hospital security "you're not taking this to store until I see your LTC".

 

[MisterHappy]

Have her get the LTC.

It will clear up the ambiguity, and the potential issues down the road.

And, she can now buy the OP better birthday and Christmas presents.

 

[Amancini]

The am glad that the OP posted this because I had not even thought about it. I am currently licensed and in the process of deciding what to purchase. I have also been looking at safes and was leaning towards a slightly larger one to also hold documents and other valuables. This being said my Fiance would have access to other things within the safe.

I have been planning on putting her through the course (she asked if I would) for safety purposes in case she needs to handle at any point in time. I want her to have the knowledge to arm and disarm ect.

Obviously the goal is for her to never have to use in a home protection situation, but there would always be that slight chance I am not home ect.

I am already taking step 1 by having her go through the course. She will not carry or anything of the sort nor will she purchase (Some might argue otherwise, but I know her which is fine)

My big question is knowing all this would she be fine with an FID card or should I just have her get the LTC? I know the most likely answer will be just get the LTC, but please read my question as to what is sufficient. All the info allows me to make a better educated decision

 

[Len-2A Training]

The am glad that the OP posted this because I had not even thought about it. I am currently licensed and in the process of deciding what to purchase. I have also been looking at safes and was leaning towards a slightly larger one to also hold documents and other valuables. This being said my Fiance would have access to other things within the safe.

I have been planning on putting her through the course (she asked if I would) for safety purposes in case she needs to handle at any point in time. I want her to have the knowledge to arm and disarm ect.

Obviously the goal is for her to never have to use in a home protection situation, but there would always be that slight chance I am not home ect.

I am already taking step 1 by having her go through the course. She will not carry or anything of the sort nor will she purchase (Some might argue otherwise, but I know her which is fine)

My big question is knowing all this would she be fine with an FID card or should I just have her get the LTC? I know the most likely answer will be just get the LTC, but please read my question as to what is sufficient. All the info allows me to make a better educated decision

Would you buy a hotdog or filet mignon if the price is the same and the wait to get served is also the same?

Cost of LTC or FID is the same, process is the same, suitability now for both, wait is the same. So why go for scraps when you can get the real deal.

I'll still contend that she gets more legal protection from the LTC than the FID.

 

[Amancini]

That answers my questions if the process and cost is the same then its makes sense

 

[Rob Boudrie]

That answers my questions if the process and cost is the same then its makes sense

The only difference is the issuing authority must go to court to have one rules unsuitable for an FID. There can be limited cases where one is held unsuitable for an LTC, but not to the extent the issuing authority will go to court to keep and FID from being issued.

 

[Beansie]

Sorry for necro'ing this but how about this:

17 year old son, home from school alone from time to time, has FID, Mother and Father have LTC. Knows where the key to the safe is. Has to use a pistol in self defense while in the home.

Based on what I'm reading here, because Massachusetts, both the parents and the kid are looking at a mountain of legal bills, and may very well lose, because he isn't old enough for the right piece of paper, even though he completed the same classes, and defended himself in his own home?

 

[Len-2A Training]

Correct.

"Self help is frowned upon" is the official state policy.

 

[Mike-Mike]

Sorry for necro'ing this but how about this:

17 year old son, home from school alone from time to time, has FID, Mother and Father have LTC. Knows where the key to the safe is. Has to use a pistol in self defense while in the home.

Based on what I'm reading here, because Massachusetts, both the parents and the kid are looking at a mountain of legal bills, and may very well lose, because he isn't old enough for the right piece of paper, even though he completed the same classes, and defended himself in his own home?

Put trigger locks on the pistols (in the safe) and leave a loaded shotgun for the kid.

 

[one-eyed Jack]

I've reached the point where I don't give a shit about any of this. Jack.

 

[Knuckle Dragger]

I've reached the point where I don't give a shit about any of this. Jack.

+1 This

 

[xtry51]

I've reached the point where I don't give a shit about any of this. Jack.

This.

And a gun in a safe is useless.