Read this BEFORE you petition the Firearms Licensing Review Board

The Massachusetts Gun Control Act of 1998 was touted as a major public safety win for gun control activists who were seeking to limit individual access to firearms. This now two-decade old sweeping reform created new provisions which disqualified thousands of individuals from renewing their LTCs. Unfortunately (and perhaps unintentionally), these new provisions affected law enforcement officers and regular citizens in equal measure. In response, law enforcement unions and 2A-friendly groups like GOAL lobbied the Legislature to provide relief and, in 2004, the Massachusetts Legislature created the Firearms Licensing Review Board (“FLRB”).

The FLRB was empowered by statute to restore individual firearms rights to persons convicted of certain Massachusetts misdemeanor offenses (generally OUI and non-domestic assault and battery convictions) punishable by a maximum possible term of imprisonment of 2 1/2 years. Approximately 400 people have successfully petitioned the FLRB since 2004 and subsequently obtained their LTCs.

Unfortunately, despite case law to the contrary, the federal government (ATF) maintains an unwavering position that the FLRB cannot restore an individual’s right to possess a firearm under federal law . The ATF position is based upon an expansive reading of the Supreme Court’s 2007 Logan decision which was rejected by the Supreme Court of the State of New Hampshire in 2015.   The FLRB has operated for many years despite ATF’s position on the issue. However, on May 23, 2018, the current executive administration, acting in concert with ATF, announced a new interpretation of state and federal law that invalidated all previously issued FLRB restorations and triggered a flurry of LTC revocations and denials.

I began litigating against this new interpretation of law in late-2018 with the support of Commonwealth Second Amendment (Comm2A.org). There are now over 2 dozen court decisions that have rejected ATF’s opinion and have ordered the reinstatement of FLRB-supported LTCs. (More information on these decisions can be found under the “Press” link on this site).

I am continuing to fight for the rights of FLRB petitioners at an appellate level. I hope to have a favorable, binding court opinion by early 2021 that will make clear that a favorable FLRB decision restores an individual’s right to obtain an LTC and possess a firearm in Massachusetts. In the meantime, any person who is seeking FLRB relief should be aware that the FLRB has stopped issuing favorable decisions. The FLRB will hear your case but will automatically deny your petition based upon their support of ATF’s flawed interpretation of law.

Any new developments on this issue will be announced here first. Feel free to ask questions on this thread or contact my office for more information.

Traveling with a Firearm

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!

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 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

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:

https://cdn.ca9.uscourts.gov/datastore/opinions/2016/08/31/14-15700.pdf

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BATFE released a newsletter this summer 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.

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.  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.

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:

https://cdn.ca9.uscourts.gov/datastore/opinions/2016/08/31/14-15700.pdf

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

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

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

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.

 

LTC Rights Restored by the Firearms Licensing Review Board

Old criminal matters can often interfere with individual career goals. My client, a military veteran and federal employee, recently discovered that he was ineligible for an LTC due to two OUI convictions in the early 2000’s. As a result, despite his impeccable resume, high test scores and glowing references, his candidacy for a position as a police officer was put on hold indefinitely.

One option to address an old conviction is to petition the Firearms Licensing Review Board. The Board holds ajudicatory hearings and has the power to restore a person’s LTC rights in certain specific situations.

Unfortunately, many people mistakenly believe that simply showing up for a Board hearing is enough to restore their firearms rights. Those people soon discover that they were woefully unprepared and have ruined their only shot at Board approval.

My client initially considered representing himself. Luckily, he spoke with me before filing his petition. We soon discovered that significant work was necessary before my client could appear before the Board. After some tricky litigation, we were able to prepare a successful petition, restore my client’s LTC rights and release the hold on his police officer position.

The key to success in a hearing before the Board is preparation.  Only an attorney who has extensive experience with the Board can properly prepare you for your hearing. Hiring an attorney who has served as Counsel to the Board and has successfully litigated before the Board is a smart move if you want to restore your LTC rights.

Charges Dismissed Against Client with Expired LTC

My client was an out-of-state resident who had previously held an LTC in Massachusetts.  He was visiting some friends in the North Shore area and they decided to travel to a local gun range for an afternoon of target shooting.  He brought his own firearms with him for use at the range.

On the way to the range he was stopped by a police officer for an alleged minor civil motor vehicle infraction.  During the stop, officers observed firearms in the car and determined that my client’s LTC was expired.  He was placed under arrest for unlawful possession of a firearm and his weapons were seized.

After his arrest he hired a local general practice attorney.  His case dragged on for a year and involved several long, expensive court dates.  He knew that he was facing a minimum 18-month jail sentence and he became frustrated and scared.  He contacted me on the recommendation of a local firearms instructor and we immediately got to work.  In two quick court dates, the charges were dismissed.

The Massachusetts firearms laws are complicated and full of exceptions and defenses that a general practice attorney would not know.  It is essential to hire an experienced firearms attorney when facing serious criminal charges.