Dolan Media Newswire Story
Subject: It’s (not) a lock: Massachusetts judges split over Supreme Court gun ruling
Pub: Massachusetts Lawyers Weekly
Author: David E. Frank
Category:
Sub-Category:
Issue Date: 03/16/2009 Word Count: 87
It’s (not) a lock: Massachusetts judges split over Supreme Court gun ruling
by David E. Frank
Dolan Media Newswires
© Dolan Media Newswires 2009.BOSTON, MA -- State Police Lt. Richard Bolduc has Justice Antonin Scalia and four of the judge's colleagues on the U.S. Supreme Court to thank for the likely resurrection of his law enforcement career.
On June 25, 2007, Cape Cod detectives went to Bolduc's home to investigate a report that his son had pointed an unloaded gun at a 5-year-old girl and pulled the trigger. When the 12-year-old son directed investigators to an unlocked bureau in his father's bedroom, they discovered a department-issued, high-capacity handgun that was not secured with a trigger lock.
The 34-year police veteran, who was not home at the time, was charged under G.L.c.140, §131L with the illegal storage of an unsecured firearm in his house.
A felony conviction, which appeared likely, could have landed Bolduc in jail for up to 10 years and ended his career.
But then Bolduc hit the legal lottery.
His lawyer, Daniel W. O'Malley of Quincy, was able to persuade a Barnstable District Court judge, and eventually the county's district attorney, to dismiss the case based on District of Columbia v. Heller, a U.S. Supreme Court ruling decided less than 24 hours after Bolduc's criminal troubles began.
"Having a case dismissed as a result of the Supreme Court handing down such an outcome-altering decision the day after someone is charged with a crime sounds like something from a James Patterson crime novel, not from a courthouse on the Cape," remarks former prosecutor Paula J. Clifford, a Boston lawyer who was not involved in the case. "[Heller] is obviously an extremely significant case that's going to be cited by lawyers throughout the state, but to have that kind of an immediate impact is pretty unusual."
A no-go in Chelsea
The eight months since Heller have been frustrating ones for Revere lawyer Carmine P. Lepore, of Lepore & Hochman, who says lower court judges are split over what the Supreme Court's 5-4 decision means to §131L prosecutions.
Just a few week's before Bolduc's victory in Barnstable, Lepore says his client, Paul Gibbs, faced Judge Sarah B. Singer in Chelsea District Court on the same 131L criminal charge. Police alleged that, in September 2007, they responded to a call at Gibbs' apartment where they found three firearms. The weapons were not in locked containers, nor did they have trigger locks.
Despite filing the same motion that O'Malley filed in Bolduc's case, and making the same arguments about Heller's impact, Lepore says his dismissal request was denied. A motion for reconsideration in front of a second judge was also rejected.
"What the judge on the Cape decided is exactly what I argued that the District Court judges in Chelsea should do," he says. "The [Gibbs] case involves the exact same fact pattern, the exact same legal issues, and yet the judges in Chelsea said ‘no.'"
As the improper-storage issue gets sorted out in Massachusetts courtrooms with varied outcomes, Lepore says that attorneys who do not file motions to dismiss may be committing malpractice.
"If a lawyer has a 131L case going, you've got to bring a motion to dismiss based on this [Supreme Court] decision on grounds that it violates the Second Amendment," he says. "Even though judges are split on the issue right now, I don't know how you can read Heller and conclude anything other than the fact that [131L] is unconstitutional."
In the wake of ‘Heller'
In Heller, Scalia held that a trigger lock requirement provision in a D.C. statute violated the Second Amendment of the U.S. Constitution.
The statute, he wrote, mandated that any firearm kept in a person's home be "unloaded and disassembled or bound by a trigger lock or similar device," thus rendering it inoperable.
Scalia said that such a restriction "makes it impossible for citizens to use [firearms] for the core lawful purpose of self-defense and is hence unconstitutional."
Last month, O'Malley - like a growing number of lawyers across Massachusetts in the wake of Heller - successfully argued to Barnstable District Court Judge Joan E. Lynch that the decision means 131L cases must be dismissed as a matter of law.
Under the Massachusetts statute, it is unlawful to store or keep a firearm "in any place unless such weapon is secured in a locked container or equipped with a tamper-resistant mechanical lock."
In a two-page ruling, Lynch agreed with O'Malley, a former District Court judge himself who is now in private practice.
Lynch wrote that the locking mechanism provision in 131L is the functional equivalent of the device discussed in Heller.
Scalia ruled in Heller, she wrote, that the Second Amendment protects an individual's right to have a lawfully possessed firearm available in the home for the purpose of immediate self-defense.
"The Massachusetts statute mandating lock boxes or similar devices would frustrate an owner's ability to immediately access an operable weapon," Lynch said in her ruling. "Although [131L] exempts firearms that are ‘carried' or ‘under the control of the owner' from the requirement that they be locked, the statute applies to the lawful owner of a firearm even when he is at home."
In finding the statute unconstitutional, Lynch added that whether a firearm is under the control of the owner is a question of fact that is subject to interpretation.
"Any ambiguity in the statute as applied to a person lawfully keeping a firearm in the home must be resolved in favor of the holder of that right," she wrote.
O'Malley declined to comment for this story other than to laud the judge's ruling.
‘Makes no sense'
After reviewing the decision, Cape and Islands District Attorney Michael D. O'Keefe, whose office prosecuted Bolduc, agreed with Lynch's analysis and decided not to appeal.
"I've read the Heller case," he says. "Judge Lynch read the Heller case, and the Heller case seems to say very clearly that these kinds of blanket restrictions are unconstitutional."
When informed of Lynch's ruling and DA O'Keefe's comments, Lepore told Lawyers Weekly he immediately planned to file a motion for reconsideration in his client's case and attach a copy of the Bolduc decision.
"It makes no sense for these completely inconsistent rulings to be out there," he says. "There is a split out there, and what is going to have to happen is that the Appeals Court or the [Supreme Judicial Court] is going to have to address the matter."
That day may come sooner rather than later thanks to Commonwealth v. Runyan, a 131L case out of Lowell District Court, in which Judge Geoffrey C. Packard, like Singer in Chelsea, granted a defense motion to dismiss on grounds that the Massachusetts statute passes constitutional muster.
Corey Welford, a spokesman for Middlesex County District Attorney Gerard T. Leone, confirmed that his office has filed a notice of appeal in Runyan but has not made any further decision on how to proceed with the case.
"I obviously have no problem with the Heller decision," says Cape and Islands DA O'Keefe. "But having said that, we will monitor the Middlesex case that addresses a similar issue, and if the SJC finds otherwise, then we'll reevaluate the matter here on the Cape."
When and if an appellate decision is made in Runyan, Christopher M. Markey of New Bedford predicts it likely will be decided in the defendant's favor.
"A Massachusetts statute can't restrict a U.S. citizen from what the U.S. Supreme Court says is a person's right to have a firearm in their home free of a locking device," he says. "The Massachusetts court can't take away a constitutional right the U.S. Supreme Court says you have."
What's the right answer?
But one state prosecutor familiar with Heller says the D.C. statute and 131L are distinguishable.
The prosecutor, who asks not to be identified, says that, unlike the provision analyzed in Heller, the Massachusetts law does not place any storage requirements on the owners of licensed firearms when they are home.
"But when the owner of the firearm or an authorized user of the firearm is not present in the house, then our statute says you have to lock it up and pocket the key," the prosecutor says. "That complies precisely with Heller's interpretation of the Second Amendment that the firearm be available for the purpose of immediate self-defense. If you're not home, and the gun is in your house, guess what it's not available for? Immediate self-defense."
Judge Singer arrived at precisely that conclusion in the Gibbs case.
In her findings, Singer noted that the last sentence of 131L states a weapon is not deemed "stored" if it is carried by, or under the control of, the owner or another lawfully authorized user.
"It allows the firearm to be used in the home for self defense," she wrote.
Chelsea attorney Matthew J. Machera, who once oversaw a team of gun prosecutors in the Suffolk County District Attorney's Office, says if a matter ever cried out for an appellate decision, this is the one.
"These different rulings are going to continue to present themselves in courtrooms around the state until there is a clear ruling from a court of record," he says. "The bottom line is that until an appellate court weighs in, we simply aren't going to know what the right answer is."
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