Tag: LTC

New Mental Health Updates Causing Issues for LTC Holders

On By jaguidaIn Legal UpdatesLeave a comment

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.

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

Charges Dismissed Against Client with Expired LTC

On By jaguidaIn Helping Clients2 Comments

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.