Author: jaguida

LTCs now being suspended for Harassment Prevention Orders

On By jaguidaIn Legal Updates8 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 Updates7 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 Updates4 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.

Criminal Charges Dismissed After Lawful Self-Defense

On By jaguidaIn Helping Clients2 Comments

On a recent summer afternoon my client, a valid LTC holder, and his wife went to a shopping mall in a South Shore community.  When they pulled into the parking lot they observed a large male arguing with a female and noticed that a crowd was gathering near the disturbance.  As my client exited his vehicle, he observed the male shove the female into the passenger seat of a nearby car and jump on top of her.

Concerned that he was witnessing an abduction or perhaps something worse, my client ran quickly towards the parked vehicle.  As he approached, the male assailant aggressively sprung from the driver’s side door and took a fighting stance.  My client jumped back, removed his firearm from his pocket holster in a low ready position and put his left hand up, yelling “Stop, Stop!”  The assailant retreated and my client re-holstered his weapon.  The police arrived a short time later and the male assailant was arrested for domestic assault and battery.  My client was interviewed, his firearm was seized and he was charged with assault with a dangerous weapon.

In Court, it was essential to prove that my client used no more force than was reasonably necessary to protect himself.  Our evidence showed that my client wisely disengaged and called the police once it became clear that his assailant was no longer a threat.  After a hearing, the Court agreed that my client drew his weapon in lawful self-defense and dismissed the charges.

The use of a firearm in self-defense should always be a last resort.  If you are ever involved in a self-defense situation, please call my office as soon after the incident as possible.

Medical Marijuana Cards, LTC’s and Firearms Possession

On By jaguidaIn Legal Updates12 Comments

Federal Law

The Bureau of Alcohol, Tobacco, Firearms and Explosives (BATFE) released a newsletter in 2016 reinforcing its position on the use of medical marijuana. In short, BATFE has determined that any person who uses marijuana for medicinal purposes is an unlawful user of controlled substances and prohibited under Federal law from possessing firearms or ammunition.  BATFE has instructed FFL dealers to 1) inform customers to answer “yes” to question 11(e) on Form 4473 if they disclose that they hold a medicinal marijuana card and 2) withhold the transfer of firearms and ammunition to any person who they have reasonable cause to believe possesses a medical marijuana card.  BATFE’s position on medicinal marijuana was upheld by the Court of Appeals for the Ninth Circuit in Nevada in August of 2016.

In 2019, BATFE released guidance on when a former medical marijuana card holder will be eligible to possess firearms:

“The following scenarios will be used to determine the disqualification period in regard to possession of a medical marijuana user card:
1.
One year from the date of the medical marijuana user card’s expiration date; or
2.
One year from the date of “admission” of possession of the medical marijuana user card, if no expiration date is available; or
3.
One year from the date the medical marijuana user card is relinquished.”

LTC/FID in Massachusetts

The effect of medicinal marijuana cards on Massachusetts firearms licensing remains cloudy.  On one hand, G.L. c. 140, sec 131(e) requires a licensing authority to determine whether the possession of a firearm by an LTC applicant would be a violation of state or federal law.  On the other hand, the medicinal marijuana law states clearly that people who qualify for medicinal marijuana cards shall not be denied any right or privilege under state law.  There have been no published cases to date addressing this issue and there are no known cases of LTC/FID denials due to medical marijuana use.  However, if you are denied an LTC or FID due to your possession of a medicinal marijuana card, please contact my office at (617) 383-4652.

Resources:

The original 2011 ATF opinion can be read here:

https://www.atf.gov/file/60211/download

The June 2016 newsletter can be read here:

https://www.atf.gov/explosives/docs/newsletter/explosives-industry-newsletter-june-2016/download

Wilson v. Lynch, 2016 WL 4537376, ____ F.3d____ (2016) can be read here:

Click to access 14-15700.pdf

A recent news article on this matter can be read here:

http://www.wbur.org/news/2018/07/16/massachusetts-marijuana-guns

UPDATE: The 9th Circuit has upheld BATFE’s opinion that any person who uses marijuana for medicinal purposes is an unlawful user of controlled substances and prohibited under federal law from possessing firearms or ammunition.  Applying intermediate scrutiny, the Court held that this ban does not violate the 2nd Amendment.

The case can be read here:

Click to access 14-15700.pdf

Copies and Duplicates – the “New” Massachusetts Assault Weapons Ban

On By jaguidaIn Legal Updates2 Comments

On the morning of July 20th, 2016 the Massachusetts Attorney General’s Office issued a new enforcement notice which restricted the sale of commonly owned sporting rifles in Massachusetts.  This “new” assault weapons ban reinterpreted long-standing language in existing law, effectively banning the sale of weapons that either have the same operating system or interchangeable parts with AR and AK-type weapons.  Details of this ban can be found on the AG’s website here: http://www.mass.gov/ago/public-safety/awbe.html

The AG’s decision upset the long-standing notion that it was lawful to sell and possess modern sporting rifles so long as they did not have certain unlawful features such as a folding stock or bayonet lug.  Thousands of Massachusetts residents who had purchased these rifles from licensed firearms dealers over the past 10 years suddenly found themselves on the wrong side of the law.

Over the past two weeks I have been assisting both license holders and firearms dealers to understand and remediate the impact of this decision.  It is our hope that there will some clarity (and potentially a reversal) in the coming months.  In the meantime, residents and dealers should be mindful of the new restrictions and seek legal assistance if an unexpected enforcement action occurs.