The criminal offense of unlawfully “carrying” a firearm, or possessing a firearm without a license outside a home or business, is punishable under Massachusetts General Laws Chapter 269, Section 10(a).
This post will answer the following legal questions on possession of a firearm without a license outside the home or business, or “carrying a firearm.”
What does the government have to show to prove someone guilty of illegally carrying a firearm?
In order to prove the defendant GUILTY of unlawfully possessing a firearm, the Commonwealth must prove ALL of the following beyond a reasonable doubt:
- That the defendant:
- That what the defendant:
- Possessed
- Had under his or her control in a vehicle
...met the legal definition of a “firearm”
- That the defendant knew that he or she:
- Possessed a firearm
- Had a firearm under his or her control in a vehicle
If there is evidence that the firearm was in the defendant’s residence or place of business, the Commonwealth must additionally prove beyond a reasonable doubt that the defendant possessed the firearm outside or his or her residence or place of business. Note that a person’s residence (see “Legally, what is considered a ‘dwelling’?”) or “place of business” only includes areas that are under a person’s exclusive control.
If there is evidence that the defendant had alicense to carry firearms, the Commonwealth must additionally prove beyond a reasonable doubt that the defendant did not have a valid license to possess a firearm outside his or her home or office.
If there is evidence that the defendant was exempt from the licensing requirement, the Commonwealth must additionally prove beyond a reasonable doubt that the defendant did not qualify for one of the exemptions in the law that are a substitute for having a license to possess a firearm outside his or her home or business.
Note that “carrying” a firearm (i.e. possession of a firearm without a license outside the home or business) is a different legal concept from “possessing” a firearm.
Also note, a defendant who purposefully or willfully evaded notice of license revocation sent by certified mail is legally considered to have had notice of license revocation.
Possession of a firearm, standing alone and without indication that the person was involved in criminal activity, does not provide probable cause to believe that the person was unlicensed to carry that firearm.
Are there any exceptions to the law on having a license to possess a firearm?
Massachusetts state law exempts a defendantfrom having a license to possess a firearm for meeting one or more of the following conditions:
- The defendant was present in or on his or her residence or place of business.
- The defendant had, in effect, a license to carry a firearm under the conditions and restrictions detailed in, L. c. 140 § 131.
- The defendant had in effect a license to carry firearms issued under the conditions and restrictions detailed in L. c. 140 § 131F, to a nonresident or alien.
- The defendant had complied with the provisions of G.L. c. 140, §§ 129Cand 131G, granting certain categorical exemptions from the requirement of a license to carry.
- The defendant had complied as to the possession of an air rifle or BB gun with the requirements imposed by L. c. 269 § 12B.
Note that it is the burden of the defendant to produce evidence of one of these exemptions. It is the burden of the Commonwealth to prove beyond a reasonable doubt the applicability of the claimed exemption.
What is the legal definition of a firearm?
Commonwealth law defines a firearm as:
“[A] pistol, revolver or other weapon…loaded or unloaded, from which a shot or bullet can be discharged and…the length of [whose] barrel is less than sixteen inches.”
This definition can be broken down into three requirements:
- That the item must be a weapon
- That the item must be capable of discharging a shot or bullet
- That the item must have a barrel length of less than 16 inches
Note that “barrel length” refers to the portion of a firearm through which a shot or bullet is driven, guided or stabilized and includes the chamber. Also note, that for legal purposes a flare gun is not considered to be a firearm.
What does it mean to control a firearm in a vehicle?
To establish that a firearm was under the defendant’s “control” in a vehicle, the Commonwealth must prove more than that the defendant was present in the same vehicle as the firearm. The Commonwealth must also prove both of the following:
- That the defendant knew that the firearm was there
2. That the defendant had both:
- The ability to exercise control over the firearm
- The intention to exercise control over the firearm
Although this control does NOT need to be exclusive control
What does the Commonwealth have to show to prove a person guilty of illegal possession of a rifle or shotgun?
The Commonwealth must prove all of the following beyond a reasonable doubt to prove the defendant guilty of the offense of knowingly possessing a rifle or shotgun unlawfully:
- That either:
- The defendant possessed a rifle or shotgun
- That the defendant had a rifle or shotgun under his or her control in a vehicle
- That what the defendant either:
- Possessed
- Had under his or her control in a vehicle
...met the legal definition of a “rifle” or a “shotgun”
- That the defendant knew either that:
- He or she possessed a rifle or shotgun
- He or she had a rifle or shotgun under his or her control in a vehicle
If there is evidence that the rifle or shotgun was in the defendant’s residence or place of business, the Commonwealth must additionally prove that the defendant possessed the rifle or shotgun outside of his or her residence or place of business.
If there is evidence that the defendant had a license to carry firearms, the Commonwealth must additionally prove that the defendant did not have a valid license to carry a firearm.
If there is evidence that the defendant was exempt from the licensing requirement, the Commonwealth must additionally prove that the defendant did NOT qualify for one of the exemptions in the law that are a substitute for having a license to carry a firearm.
What is a rifle or a shotgun?
The Commonwealth of Massachusetts defines a “rifle” as:
“[A] weapon having a rifled bore [i.e. the hollow part inside a gun barrel] with a barrel length equal to or greater than sixteen inches, capable of discharging a shot or bullet for each pull of the trigger.”
This definition can be broken down into three requirements (ALL):
- A weapon
- A rifled bore with a barrel length of at least sixteen inches
- Capable of discharging a shot or bullet for each pull of the trigger
The Commonwealth defines a “shotgun” as:
“[A] weapon having a smooth bore with a barrel length equal to or greater than eighteen inches with an overall length equal to or greater than twenty-six inches, capable of discharging a shot or bullet for each pull of the trigger.”
This definition can be broken down into four requirements:
- A weapon
- A smooth bore with a barrel length equal to or greater than eighteen inches
- An overall length equal to or greater than twenty-six inches
- Capable of discharging a shot or bullet
What if the weapon was a non-firing firearm, rifle, or shotgun?
A weapon that was originally a firearm, rifle, or shotgun may become so defective or damaged that it can no longer fire a projectile. In this scenario, the weapon is no longer considered to be a firearm, rifle, or shotgun under the law.
However, a defective or damaged weapon remains a firearm, rifle, or shotgun under the law when a slight repair, replacement or adjustment will again make it an effective weapon.
It is the burden of the Commonwealth to prove that a particular defendant had the ability and knowledge to repair, replace, or adjust the weapon.
Are a firearms identification card and a license to carry a firearm the same thing?
NO, a firearms identification card is not the same thing as a license to carry a firearm.
A valid firearms identification card gives the possessor the right to possess a firearm within his or her residence or place of business, whereas a valid license to carry a firearm gives the possessor the right to possess a firearm outside of his or her home or business.
If a person is a passenger in a vehicle, is the person legally considered responsible for the presence of a firearm, rifle, or shotgun in the vehicle?
Merely being present in a motor vehicle in which a firearm, rifle, or shotgun is found is NOT sufficient by itself to permit an inference that the person knew about the presence of the firearm, rifle, or shotgun without other indications of knowledge.
Is not knowing the law on firearms licenses ever a defense?
NO, the Commonwealth is not required to prove that the defendant knew that the law required him or her to have a license before possessing a firearm or having a firearm under his or her control in a vehicle outside of his or her home or place of business.
How does the court determine whether or not an item is a firearm?
Any police officer can give a confiscated, alleged weapon to a ballistics expert of the firearms department of the Massachusetts Department of Public Safety or an expert employed by the City of Boston to certify whether or not the item is a firearm, a rifle, a shotgun, a machine gun, a sawed off shotgun, or ammunition. Such a certification can be used as evidence permissible in court.
IF YOU OR A LOVED ONE HAVE BEEN CHARGED WITH UNLAWFULLY CARRYING A FIREARM, AND YOU NEED AN EXPERIENCED CRIMINAL DEFENSE LAWYER WORKING ON YOUR SIDE TO PROTECT YOUR RIGHTS, PLEASE CONTACT CRIMINAL DEFENSE ATTORNEY WILLIAM J. BARABINO.
CALL 781-393-5900 TO LEARN MORE ABOUT YOUR AVAILABLE DEFENSES.
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