Samuel Goldberg has been a Massachusetts criminal defense attorney for 20 years. Prior to that, he was a New York state prosecutor. He has published various articles regarding the practice of criminal law and frequently provides legal analysis on radio and television, appearing on outlets such as the Fox News Channel, Court TV, MSNBC and The BBC Network. To speak to Sam about a criminal matter call (617) 492 3000.

Got Guns? A Boston Criminal Lawyer Discusses Firearms Possession In The Commonwealth

I remember years ago, before I was a lawyer, growing up in the Boston area and hearing commercials about what happens if you are arrested for possessing a gun. “If you are caught with a gun”, I recall it saying, “you will go to jail for one year…and nobody can get you out”. The tone of the announcement made it clear that the possession of guns was behind the ever-worsening crime problem.

And, then, came the other public service announcements which declared, “Guns don’t kill people, People kill people.”

And so it seemed to me that the obvious solution would be to simply send the guns to jail for a year with no hope them of getting out.

Then came my education at the hands of the Boston University School of Law, the Kings County District Attorney’s Office and, finally, my many years as a Massachusetts criminal defense attorney. Throughout these years, I have seen the gun issue from many different perspectives. All of these perspectives get a voice in the realities of the criminal justice system.

The result?

There is no one clear and simple answer as to how gun possession is handled by the courts. As with most things in the criminal justice system, it depends on the circumstances. There is no simple, issue-free gun possession case. This is why you need an experienced criminal defense attorney to guide you through the morass of potential scenarios when facing prosecution for possessing a firearm.

And that is why this week’s Attorney Sam’s Take discussion is about gun possession in Massachusetts.

The penalties for illegal possession of a firearm depends, first of all, on who is possessing it, where it is being possessed, and what the person is doing with it.

As you probably know, there is a license available for the possession of a firearm. There is also a license to be able to carry a firearm. If you are simply doing what your license says you can do, then there is no crime being committed. However, if you have a license to simply possess a gun, it does not allow you to carry or transport it. Further, while our country often debates what is believed to be a Constitutional right to “bare arms”, this does not mean that you have the absolute right in the Commonwealth to a either of these licenses.

There is a certain procedure which is employed by the government which decides on who is allowed to get a license and who is not. While these decisions cannot be capricious, there is a certain amount of discretion left to the licensing entity. For example, if you have been convicted of a crime, you may be ineligible to get a gun license. Certainly, if you are under a certain age, such a license is out of the question. Finally, the fact that you lawfully have the license does not mean that you will always be able to renew it…or even exercise it.

For example, let’s say you are a “gun buff” and have a license to possess your collection of guns. But then, someone seeks a Restraining Order against you through Massachusetts General Law 209A. If the Order is allowed, you will be Ordered to give up the possession of your guns. Period.

There are other circumstances which can invalidate a license to carry firearms. For example, if a person is convicted of carrying a loaded firearm while under the influence of drugs or alcohol, even if that person has a valid license to carry the gun, can be sentenced up to 2 ½ years in the house of correction.

Of course, most of the gun issues we hear about do not involve people with licenses. The typical case scenario is that, whether in connection with another crime or simply by itself a criminal defendant is presented with an accusation that he is unlawfully in possession of a firearm.

MGL Chapter 269, Section 10(h)(1) indicates that possession or transfer of a gun or ammunition without having the necessary license is punishable by up to 2 years in jail or a fine or both. Meanwhile, carrying a gun without a license to carry, whether it is loaded or unloaded, is a crime which carries potential penalties of up to 5 years in state prison and has a 1 year mandatory minimum sentence. The more times it happens, the greater the exposure, on up to a 4th offense being punishable by 15 years in state prison and a mandatory minimum of 10 years.

Of course, there are defenses to the situation where the officer stops the car you are in and finds a gun secreted beneath the seat. First of all, the possession has to be knowing possession. If you were in your buddy’s car and had no idea about the gun, you were not in possession of it. Of course, normally, that will be for the jury to decide.

Another line of defense in such cases is whether the discovery of the gun was done legally and not in violation of your Constitutional rights. If the search which unearthed the gun is found to be unconstitutional by the court, then the gun is suppressed and, usually, the case is dismissed. Presently, the gun also has to be shown to be operable. An old broken relic might as well be a toy as far as the statute is concerned, although there has recently been a push to change that requirement.

There are some defenses which I have seen defendants try to offer up that are baseless under the law and so not terribly effective. For example, “Hey, I need the gun because the crowd I run with is always shooting at me” is not a valid line of defense. On the other hand, if you make an agreement with the Commonwealth to disclose the identities and give evidence against members of that crowd, you will probably be able to make a deal which will reduce your criminal exposure.

The use of a gun in connection with another crime is considered an aggravating factor. For example, the use of a firearm while committing a felony can bring a mandatory minimum sentence of 10 and, if a subsequent offense, 20 years in state prison. While kidnapping a person carries a state prison term of up to 10 years, doing so while armed with a firearm of some kind carries a mandatory minimum sentence of the 10 years in state prison. If, along with the use of the gun, the kidnapping is found to have been done for purposes of extortion, the potential maximum sentence is life imprisonment and the minimum mandatory sentence is 20 years.

As you can see, the issue of gun possession can be a bit more complicated than most people think. As with most areas of criminal law, there is little that is “cut and dry”. Of course, it is impossible to provide an exhaustive discussion in a blog posting such as this.

The bottom line is simple, if the subject matter is not. Illegal gun possession charges can be complicated, both in elements the government must prove as well as the potential defenses available to the defendant. Do not take any such charges lightly, for they can impact your life in ways that are not self-evident.

“Come on, Sam”, you tell me. “Let’s not make it like it’s a murder case or something!”

No? You would be surprised at how many people suddenly find themselves unexpectedly linked to a murder because of tests the Commonwealth have made which they allege connect to the gun found in your possession to some such murder.

In other words, yes; take it that seriously!

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