What does it mean to commit a felony with a firearm?

The Second Amendment of the US Constitution gives all citizens the right to bear arms. However, states are also allowed to regulate how firearms and used and handled. Every state has different rules. Massachusetts is a state that takes gun laws very seriously. One way it does so is by creating laws that punish people for using guns irresponsibility.

Is the punishment for a crime worse when a gun is involved?

Yes. If you are in possession of a firearm when a felony is committed you could be charged with an additional crime. Massachusetts General Laws Chapter 265, Section 18B is the law which says that possessing a firearm while committing a felony is illegal.

In Massachusetts, a felony is a crime that can be punished by time in state prison. If a person is convicted, the minimum sentence is 5 years. If that person used a “large capacity” weapon, the minimum sentence is 10 years. A large capacity weapon is a gun that shoots more than 10 rounds of ammunition or more than five shotgun shells at a time.

Keep in mind that these penalties are in addition to the time that a person could spend in prison if convicted of the original felony. For this reason, possession of a firearm when a felony is committed is a serious charge that could have very negative consequences.

What does it mean to possess a firearm?

Possession means having direct physical control or custody of an object at a certain time. For example, if you have a $100 bill in your wallet and that wallet is in your pocket right now, you would be in “possession” of the $100 bill.

That seems simple enough, but there is a catch. A person does not necessarily need to have physical custody of an object for it to be in their “possession” according to the law. A person still has possession of an object when:

  • They have knowledge of the object
  • They have the ability to exercise control of the object themselves or through another person
  • They have intent to exercise control

For example, if you place your $100 bill in a safe at your home it is considered to be in your possession. You know that the $100 bill is in your safe. You have the ability to open your safe and take out the $100 bill. Lastly, you know the combination because it is your intent to take the $100 out of your safe at some point.

A person can also be in joint possession of an object. Joint possession means more than one person owns or holds an object. Using the same example, two people are in joint possession if they both:

  • Knew that $100 was in a safe at a house
  • Had the ability to open up the safe and take the $100 out
  • Know the combination with the intent of withdrawing the $100

Whether or not a person was in possession of a firearm at the time that a felony is committed is essential to determining if they can be convicted of this crime. The government must prove beyond a reasonable doubt that the firearm was in that person’s possession at the time that the felony was committed.

What are the defenses to this crime?

It is your attorney’s job to analyze all the facts of your case and make a defense to a charge of possession of a firearm at the time of a felony. There are different approaches to making a defense:

  • Motion to Suppress Evidence. Your attorney will investigate whether or not a firearm was taken into police custody during an unlawful search. If the weapon was taken from your car or house in violation of the Fourth Amendment to the US Constitution, then the evidence cannot be used against you and will be “suppressed” or thrown out. Suppressed evidence makes it harder or in some cases impossible for the government to prove that you committed the crime. This is very useful for your defense.
  • Lack of Possession. If you were not in possession of a firearm at the time that the felony was committed, you cannot be convicted of this crime. For example, if you were riding in a car with someone else and did not have control of the weapon, then you cannot be legally in possession of the gun. You cannot be found guilty of this crime without the government proving possession.
  • Knowledge. The government must prove that you knew about the firearm. This is not always easy for the prosecution to show. Because of this, knowledge is an important defense. Your attorney will carefully analyze the facts of the case to determine if you knew about the gun. If you did not, a defense is available.

IF YOU OR A LOVED ONE HAVE BEEN CHARGED WITH A GUN CRIME, 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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