Author: jaguida

Restoring Federal Firearms Rights: A New DOJ Proposal Explained

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The loss and restoration of firearms rights after a disqualifying criminal conviction has become a frequent subject of litigation post-Bruen. A new proposal by the Department of Justice (“DOJ”) aims to provide a pathway to restore firearms rights under federal law to those who would otherwise be prohibited through a detailed application process. It is important to note that this proposal is still in the comment period and no official application process exists at this time.

Understanding the Proposal

The new proposed DOJ rule seeks to create a structured and transparent process for individuals to restore their firearms rights. Applicants will need to prove that they are “not likely to act in a manner dangerous to public safety” and that granting relief “would not be contrary to the public interest”.

The proposed regulations presumptively exclude from relief most violent felons, sex offenders, drug traffickers and many others who are deemed likely to re-offend. Some applicants, such as those convicted of drug crimes or misdemeanor crimes of domestic violence, will need to wait at least 10 years before they are eligible to apply. Others, including most non-violent felons, will need to wait a minimum of 5 years.

The proposed application process will require official documentation related to the underlying prohibiting conviction, supporting affidavits, letters, waivers and background checks.

State Law and Massachusetts

Massachusetts has some of the strictest firearms regulations in the United States. The new proposed DOJ rule clearly states that a restoration of federal firearms rights will not restore firearms rights under state law. This means that many prohibited people who reside in Massachusetts will not be able to access firearms even if their DOJ application is approved. A key exception – one alluded to in the proposed regulations – are those applicants who have restored their firearms under state law through the Massachusetts Firearms Licensing Review Board.

What’s Next?

The proposed rule is open for public comment until October 20, 2025. Comments will then be reviewed by the DOJ and the proposed rule may be modified. The DOJ will then decide whether to issue the new rule. The proposal anticipates the need for 50 employees and a total cost of $20 million to implement the new relief from disabilities procedure. The proposal relies upon an application fee to cover the associated costs. The anticipated cost estimate may be unrealistic and the need for Congressional funding may significantly hamper the implementation of any new regulations.

Our office is monitoring the new DOJ restoration of rights proposal closely. We specialize in the restoration of firearms rights and we expect to begin assisting our clients once the new regulations become effective.

Key Changes in Massachusetts Firearm Laws for Nonresidents in 2024

On By jaguidaIn Legal UpdatesLeave a comment

Chapter 135 of the Acts of 2024, signed into law on October 2, 2024, has made it unlawful for nonresidents of Massachusetts to participate in target competitions with handguns or semi-automatic rifles/shotguns.

Pistol competitions, such as those sponsored by the USPSA, have been held at clubs throughout Massachusetts for many years. These competitions provide revenue to cash-strapped clubs and attract shooters from throughout New England. Unfortunately, the provision of Massachusetts law that allowed nonresidents to participate in pistol or revolver competitions, G.L. 140, sec. 131G, was repealed by Chapter 135. There appears to be no other exceptions for nonresidents to lawfully participate in pistol competitions without first obtaining a Massachusetts nonresident license to carry (LTC).

Similarly, Chapter 135 modified many of the provisions of G.L. c. 140, sec. 129C that allowed nonresidents to transport rifles and shotguns into Massachusetts. The new statute directs the Massachusetts State Police to develop a list of states that have permits similar to a Massachusetts firearms identification card (FID) as well as a list of states that issue hunting permits with similar requirements as Massachusetts. Nonresidents older than 18 years of age may possess rifles or shotguns in Massachusetts if a) their home state appears on the approved list (which has not been created yet) b) their home state issued them an approved hunting permit (this list also has not been created yet) c) they possess a nonresident Massachusetts hunting license d) while at a range and e) while traveling through Massachusetts if locked in a case and unloaded. In all situations, a nonresident MAY NOT possess a semiautomatic or large capacity rifle or shotgun without a valid Massachusetts LTC.

Black powder hunting also appears to have been affected by Chapter 135. Antique weapons are defined as muzzleloading rifles, shotguns and pistols that cannot be redesigned for conventional rimfire or centerfire ammunition. These weapons do not require a Massachusetts firearms license to possess. However, G.L. c. 140, sec. 129C(p), which allowed possession of black powder rifles, shotguns AND ammunition has been repealed. At least one Massachusetts court decision held that the Legislature must specifically exempt black powder ammunition for unlicensed individuals to carry the ammunition lawfully. (Commonwealth v. Jefferson, 461 Mass. 821 (2012)).

Law enforcement is still coming to terms with the new provisions of Chapter 135 and it will likely take time and court challenges before we know for certain how all of the new nonresident provisions should be interpreted. In the meantime, nonresidents should take caution before traveling into Massachusetts with a firearm.

New Mental Health Updates Causing Issues for LTC Holders

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The MA Dept. of Criminal Justice Information Services (DCJIS) recently rolled out an update to the Massachusetts Instant Record Check System (MIRCS) in an effort to provide real-time mental health information to firearms licensing authorities. This new update has caused issues for both firearms license holders and firearms licensing officers.

MIRCS is the computer program that firearms licensing officers use to determine if an applicant is eligible to be issued a firearms license. MIRCS interfaces with several criminal justice databases and the Massachusetts court system. Licensing officers are notified directly by the courts via the MIRCS subsequent activity queue when a license holder is charged with a new criminal offense. The licensing officer can review the incident and decide whether to suspend or revoke the LTC in accordance with the licensing statute.

Current law prohibits the issuance of an LTC to a person who has been committed to a hospital for drug/alcohol abuse or mental health issues or placed under a guardianship for mental incapacity. Records of these events are often very old and many people have obtained an LTC despite having a commitment in their background. The recent DCJIS update connected the mental health records maintained by the courts with the MIRCS subsequent activity queue. LTC holders, many who have held the license for many years, are now receiving LTC suspension notices and are being forced to surrender their firearms.

Fortunately, Massachusetts adopted the provisions of the NICS Improvement Act which allows an individual to petition the committing court to restore firearms rights. The petition can be filed 5 years after the commitment date and petitioners are entitled to an evidentiary hearing.

We have successfully litigated many restoration of rights petitions for clients since the provisions of the NICS Improvement Act were adopted. If your license has been suspended due to the recent DCJIS update – or you are attempting to apply for an LTC but have a commitment history – please contact our office.

LTCs now being suspended for Harassment Prevention Orders

On By jaguidaIn Legal Updates10 Comments

Harassment Prevention Orders (“HPO’s”), issued under G.L. c. 258E, operate similar to domestic violence restraining orders in Massachusetts but affect individuals who are typically unrelated and have never been involved in a dating relationship. An HPO can be issued against any person if a court finds that this person has committed 3 or more acts against another person with the “intent to cause fear, intimidation, abuse or damage to property and that does in fact cause fear, intimidation, abuse or damage to property.” This means that your neighbor or coworker can seek an HPO if he or she feels that you are intimidating them or placing them in fear of harm.

HPOs and the facts surrounding these orders have always been considered by licensing authorities when determining whether an LTC holder is a suitable person to hold the license. While denials and suspensions did occur, often times licensing authorities could read between the lines and differentiate between a legitimate risk to public safety and a frivolous dispute between difficult neighbors. Unfortunately, the recently enacted firearms legislation, Chapter 175 of the Acts of 2022 (effective August 10, 2022), added HPOs to the laundry list of disqualifiers for an LTC. As a result, licensing authorities no longer have the discretion to allow an LTC to remain active after the issuance of an HPO.

Our office has received reports in recent days from LTC holders with valid LTCs receiving suspension notices due to active HPOs. It is possible that police departments are being advised to take action by state authorities as a result of the new legislation.

If you have an LTC and are currently a defendant in an active HPO, you should be prepared for an LTC suspension and the forced surrender of your firearms, rifles shotguns and ammunition. You should take steps to ensure that the items in your inventory are lawful to own in Massachusetts and you should have a written notice prepared and addressed to your police department with a directive to release your property to a valid LTC holder or FFL of your choosing. You should also consider contacting our office to discuss whether an early termination of the HPO is available.

If you receive notice that an HPO is being sought against you, take it seriously. Too often people believe that they can handle these matters themselves and that they will be able to explain everything away in court. The truth is that courts often side with the plaintiffs in these cases since, in a judge’s mind, the issuance of an HPO has no real consequences and may help to alleviate the potential escalation of an issue. The fact that the HPO will now result in the automatic suspension or revocation of your firearms rights will not change this analysis.

Our office works with clients throughout Massachusetts to defend against the issuance of frivolous HPOs. We recommend that you contact us as soon as you receive notice that an HPO is being sought against you so that we have time to prepare your case and speak to potential witnesses.

LTC restrictions no longer enforceable

On By jaguidaIn Legal Updates9 Comments

On August 10, 2022, Massachusetts, complying with the recent Bruen decision, repealed the legislative language that permitted police departments to impose carry restrictions on LTCs as well as the criminal penalties that could be imposed for carrying outside of a restriction.

The new legislation, Chapter 174 of the Acts of 2022, was passed with an emergency preamble, which means it was effective immediately upon the Governor’s signature. (Read the new bill here: https://malegislature.gov/Laws/SessionLaws/Acts/2022/Chapter175).

If you currently hold an LTC that was restricted by your police department, that restriction is no longer enforceable. LTC holders may now safely and lawfully carry a firearm for all lawful purposes (being mindful of school zones, government buildings and private property where firearms are prohibited).

It is possible that some law enforcement officers remain unaware of the recent changes despite the publicity that the legislation received. If you encounter a law enforcement action when carrying outside of an LTC restriction (LTC seized, charges filed), contact our office as soon as possible.

UPDATE: Massachusetts FRB will no longer print LTCs with restrictions

On By jaguidaIn Legal Updates4 Comments

The Massachusetts Firearms Records Bureau released guidance to police departments today advising that 1) it is the responsibility of the police department to remove restrictions and request the reprint of new LTCs for license holders and 2) FRB will no longer print licenses that have restrictions placed upon them. (thank you @@GunOwnersActionLeague for posting the advisory here: https://goal.org/Restricted-License-Guidance/?_kx=49QFD52ddo1U4F_TuuNLncjN1oZ8v_jKEg_PpmpF1b4%3D.VR7reg)

What this means for LTC holders:

  1. You must contact your police department and demand the removal of your restriction. Expect to be frustrated with this process, particularly if you live in the City of Boston.
  2. If your LTC was processed prior to the Bruen decision in a community that restricts and it has not been issued, you should expect delays. Your license is being sent back to the police department to process without restrictions.
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Massachusetts LTC restrictions unconstitutional after SCOTUS decision

On By jaguidaIn Legal Updates6 Comments

On Friday, July 1, 2022, Massachusetts state officials issued an advisory (https://www.mass.gov/doc/ago-eopss-ltc-guidance/download) that confirmed the obvious: LTC restriction policies, like those enforced by the City of Boston, are unconstitutional in light of the Supreme Court’s recent holding in the Bruen case (https://www.supremecourt.gov/opinions/21pdf/20-843_7j80.pdf).

Unfortunately, while this advisory provides some clarity on the restriction issue, important questions still remain. Our office is working closely with the Gun Owner’s Action League, Commonwealth Second Amendment, Firearms Policy Coalition and Second Amendment Foundation to formulate a cohesive strategy to address the following issues:

  1. Will licensing authorities comply with the advisory, repeal their restriction policies and reissue unrestricted LTCs? We anticipate the City of Boston will be complying with this advisory and adjusting their policy in the near future.  Whether that means they will be issuing new, unrestricted LTCs to their license holders remains to be seen. Less is known about places like Springfield, Lowell, Watertown, Lawrence and Brookline. LTC holders with restrictions should be contacting their licensing authorities, in writing, and requesting unrestricted licenses . Any negative responses should be reported to GOAL or Comm2A (or forward to our office at 2A@lawguida.com) so that our team of attorneys can determine whether litigation is needed.
  2. Can I carry on a restricted LTC now? It seems that the provision of G.L. c. 140, sec. 131 that makes it a criminal offense to carry outside of a restriction is now unenforceable. However, a cautious LTC holder would be well advised to wait until there is more clarity. If you are charged with carrying an LTC outside of a restriction, please contact our office as soon as possible.
  3. What about discretionary licensing and suitability? The recent advisory reinforces the Chief’s authority to determine an LTC holder/applicant to be “unsuitable” to hold an LTC based on conduct that may pose a risk to public safety. This advisory is ripe for a challenge in the near future since the most recent analysis of suitability by the SJC relied upon a legal standard that the Supreme Court specifically rejected in Bruen. Unfortunately, this will take time and those who have been deemed “unsuitable” should not expect immediate relief, particularly in the Massachusetts court system.

The impact of the Bruen decision will take some time to shake out in Massachusetts. Please continue to follow updates from GOAL, Comm2A and this page for future updates.

The Firearms Licensing Review Board is back in business!!!

On By jaguidaIn Uncategorized10 Comments

I am pleased to announce that my litigation sponsored by Commonwealth Second Amendment has been successful and the restoration of rights afforded by the Firearms Licensing Review Board (FLRB) will be recognized in Massachusetts again. In two companion cases before the Suffolk Superior Court, a judge held that “the right to bear arms is a civil right within the ambit of Section 921(a)(20) and a decision by the (FLRB) pursuant to G.L. c. 140, sec. 130B that a convicted person who lost such a right is now suitable to be an LTC holder constitutes a restoration of that person’s civil rights under this statute.”

The Department of Criminal Justice Information Services will no longer interfere with the issuance of LTCs approved under an FLRB decision. Additionally, I have been advised that the FLRB will begin meeting again and issuing favorable decisions this summer.

My office has begun reaching out to our clients who have been affected by the Commonwealth’s misguided attempt to reinterpret the law and we hope to begin litigating before the FLRB by July.

If you have been denied an LTC or FID due to a conviction for operating under the influence (OUI), assault and battery (A+B), receiving stolen property (RSG) or some other misdemeanor offense, please contact our office to discuss the restoration of your firearms rights. We can be reached at (617) 383-4652 or 2A@lawguida.com.

Traveling with a Firearm

On By jaguidaIn Legal Updates1 Comment

Most people are aware that federal law allows individuals to travel across state lines so long as:

  1. the firearm is unloaded;
  2. the firearm and ammunition are inaccessible from the passenger compartment of the vehicle (ie. locked in a trunk or locked in a case if the vehicle has no trunk);
  3. the individual can lawfully possess the firearm in the place he/she is leaving as well as the place he/she is going. (See 18 U.S.C. 926A)

But what happens if you need to stop? Perhaps you need gas or want to use a rest stop. What if you are flying and your flight is diverted? This is when otherwise well-meaning travelers run into trouble, particularly in states like Massachusetts where a license to possess a firearm is required.

U.S. LawShield, a self-defense insurance company for firearms owners, recently provided an update on this issue to its members. (Full disclosure – I serve as the U.S. LawShield Massachusetts Program Attorney). The link below details a scenario that is based on an actual case out of New Jersey and provides good information on what to do if your flight is diverted with your firearm in your checked baggage.

The underlying point is that you become subject to the laws of the state in which you are in once your firearm becomes “accessible”. That means if you are traveling through Massachusetts (or New York or New Jersey or another state that requires a license) and you stop for any reason, you could be subject to arrest for possession of a firearm.

“Flight Diverted, Security Alerted” – U.S. LawShield: https://www.uslawshield.com/flight-diverted-security-alerted/?utm_medium=email&utm_source=newaletter_nl&utm_campaign=december_18_2019

Expungement comes to Massachusetts!

On By jaguidaIn Helping Clients6 Comments

In late 2018 Massachusetts began accepting petitions to expunge certain offenses which occurred prior to a person’s 21st birthday (juvenile offenses), offenses that appear on a person’s record due to fraud and offenses that are no longer criminalized.

The new expungement process requires the petitioner to meet certain strict guidelines, overcome an eligibility review by the Office of the Commissioner of Probation and be granted relief by the Court after a hearing.

Our office is now handling expungement petitions for qualified clients.  Please complete our Expungement Eligibility Questionnaire to see if you qualify.