Firearm Offenses Boston, Massachusetts

EvidenceIn Massachusetts possessing or carrying certain dangerous weapons without being properly licensed is a criminal offense. “Dangerous weapons” include many different types of knives and other dangerous instruments, but most of the laws concern guns such as firearms, rifles and shotguns. The definitions of what constitutes these different types of “firearms,” including high capacity weapons and feeding devices are found in Massachusetts General Laws chapter 140.

The law on firearms is complex as it contains many exceptions and licensing requirements, but also provides for very harsh penalties when the requirements are not met. The law also draws an important line between the possession of firearms at home or work and possessing or “carrying” these firearms while not at home or work. Being found to be in possession of a firearm in your car will subject you to a minimum mandatory term of imprisonment while possessing the same firearm while in your home may not.

Types of firearm offenses in Massachusetts:

• Possession of a firearm rifle or shotgun
• Possession of a firearm handgun
• Carrying a firearm
• Possession of a high capacity weapon or feeding device
• Possession of a sawed off shotgun
• Armed Career Criminal
• Carrying a loaded firearm or machine gun
• Discharge of a firearm within 500 feet of a dwelling

What is the court process if I have been charged with a firearm offense?

If you are charged with a firearms offense you must first be arraigned. This will typically take place in the district court. At the arraignment, you will be informed of the specific charges you are facing and will likely get some preliminary police reports. Next, you will be subject to a bail hearing at which the court will determine whether you must post a bail in order to remain free while the case is open and, if so, how much that bail will be. At the bail hearing, you may also be ordered by the court to abide by certain conditions of release including reporting to probation, drug testing, or wearing an ankle bracelet. Depending on the charges, you will then be scheduled for either a pre-trial hearing or a “probable cause” hearing. A probable cause hearing is scheduled in any case in the district court in which the only potential penalty is a state prison sentence. For example, those charged with carrying firearms having been previously convicted of a violent crime or serious drug offense (armed career criminal) may be punished only by state imprisonment. The probable cause hearing is designed for the court to make a determination of probable cause from which you may be “bound over” to the superior court to answer to the charges. The reality is that a probable cause hearing in the district court is very rare. That is because if the Commonwealth intends on bringing the case in the superior court (which allows for a state prison sentence), they will typically obtain a grand jury “indictment” for the charges and eliminate the need for the district court judge to make that probable cause determination.

Penalties for firearm offenses:

The penalties for firearms offenses vary greatly according to, among other things, (1) the type of firearm (2) location of possession (3) your prior record of convictions. Some typical charges and their penalties are:

1) Carrying a firearm while not at home or work = 18 months to 2.5 years in the house of correction or 2.5 to 5 years in state prison. A minimum sentence of 18 months must be served.

2) Discharging a firearm within 500 feet of a dwelling = up to 3 months in the house of correction.

3) Possession of a firearm at home or work = up to 2 years in the house of correction.

4) Possession of ammunition = up to 2 years in the house of correction.

5) Possession of a rifle or shotgun outside home or work = 18 months to 2.5 years in the house of correction or 2.5 to 5 years in state prison. A minimum sentence of 18 months must be served.

6) Carrying a loaded firearm = up to 2.5 years in the house of correction from and after the sentence for carrying the firearm that was loaded.

7) Possessing or carrying a firearm, rifle, shotgun or machine gun being an “armed career criminal” = Minimum mandatory 3 years and up to 15 years in state prison for one qualifying prior offense; minimum mandatory 10 years and up to 15 years in state prison for two qualifying prior offenses; minimum mandatory 15 and up to 20 years in state prison for three qualifying prior offenses.

8) Possession of a firearm with a defaced serial number = 1 month to 2.5 years in the house of correction.

These are just some of the penalties for some typical firearms offenses. There are literally dozens of crimes that involve firearms, each of which have very specific sentencing structures. There are also a number of “enhancements” in the event that you have been previously convicted of the same or similar offenses that will increase the penalties.

Who is not able to receive a gun permit in Massachusetts?

You must apply for a permit or license with your local authorities, such as police department, and will be required to be properly educated and qualified prior to being issued a license.

Your application may be denied for a number of reasons such as:
• Under 21 years old
• Non-citizenship
• Felony conviction
• It has been less than five years since a qualifying misdemeanor (eg. punishable by more than two years, drug or firearms offenses)
• Existence of a restraining order
• Existence of an outstanding warrant
• You have been committed for mental health or substance/alcohol abuse reasons.
• You are determined not to be a “suitable person to be issued such license”

You must be notified in writing by the authority if you are rejected and have the right to appeal their decision. Some of the disqualification reasons allow for reconsideration after certain time periods. For example, after five years from having been committed for mental health or substance abuse you may ask to be considered for a license.

Who is able to carry a concealed weapon in Massachusetts?

Law enforcement authorities and those private citizens who possess a valid “class A” license issued by the Commonwealth of Massachusetts may carry a concealed weapon only if the license does not restrict concealment. These licenses, however, may come with restrictions concerning when the weapon may be carried. The issuance of these licenses is discretionary to the local law enforcement authority or the Massachusetts State Police. Issuance may vary from community to community If you are only issued a “class B” license, you are not entitled to carry a loaded firearm in a concealed manner.

What should I do if I have been charged with a firearm offense?

First, do not speak to law enforcement or try and explain yourself to anyone. Anything you say will probably be used against you. You must immediately contact an experienced firearms attorney who is familiar with all of the complex laws surrounding firearms as including important search and seizure issues related to firearms. A skilled firearms attorney will know your rights and possible defenses. Those defenses may include challenging whether the item legally qualifies as a “firearm”, “rifle”, “shotgun”, “machine gun” or “assault weapon” or even challenging whether you actually possessed or carried the firearm according to the law. These charges often require an analysis of constitutional rights as the weapons, ammunition, or articles used to connect them to you are frequently seized by law enforcement without a warrant. If there is a search warrant, that must be analyzed and challenged separately in order to try to get the evidence “suppressed” or thrown out.

Schedule your free phone consultation with a criminal defense attorney at Eisenstadt, Krippendorf & Galvin, LLP  by filling out our confidential contact form or by calling 24/7 to get live help at (617) 523-3500 right now.

Frequently Asked Questions About Firearm Offenses:

What if the police did not find the gun on me but in my car?

The first issue is, how did they find it in car? Did they have a warrant to search your vehicle? Was it in plain view? If the police illegally seized the gun in the first place, it may not be used as evidence against you and your case may be dismissed. If, however, they did properly seize the gun, they next big question in these cases is how does the government prove that you knew the gun was there and that you had the intention of exercising control over it? If they cannot connect you to the firearm or prove that you were aware it was there and planned on exercising control over it, you should be found not guilty.

What if I have my grandfather’s old rifle in my attic but I don’t have a license?

Under the law, if you know it is in your attic, you may be charged with illegally possessing the rifle because you do not have a valid license. There are still defenses available to you. Does the rifle still operate and qualify as a “weapon” under the law? This can often be an effective legal challenge to criminal charges in caes like this.

I used to have a valid license but let it lapse, can I still be charged with the crime of illegally possessing my gun?

While police often initially “charge” people with the crime of illegally possessing the firearm, rifle or shotgun, you should not be charged criminally. If the only reason your license is invalid is that it has expired and you would otherwise qualify for it to be renewed, you may only be subject to a civil fine of $500 to $5,000. This exemption does not apply if your renewal application was denied, your license was revoked or suspended for certain reasons or there is revocation or suspension pending. Straightening this out can often require the assistance of an attorney as, if you are charged criminally, such a charge can carry serious penalties.

Will I go to jail?

Many firearm offenses have not only minimum jail sentences but minimum mandatory jail sentences. Therefore, if you are convicted, the judge is required to sentence you to a jail or state prison sentence Even where the law does not provide for a minimum sentence, courts treat these charges very seriously and often give jail sentences in gun cases. It is imperative that you have a firearms attorney working for you who understands the complex firearms laws and laws prohibiting illegal search and seizure as well as a proven track record of keeping people out of jail.

If I have been charged with gun possession does it affect punishment for other charges?

Absolutely. Many charges are “enhanced” when a firearms is also a component of the case. Some examples are:

• Being in possession of a firearm while committing a felony will subject you not only to the penalty for the underlying felony, but also the enhanced penalty of a minimum of 5 years in state prison or 10 years if the firearm is a large capacity weapon.

• When you are charged with an armed robbery, if the item you are “armed” with is a firearm, rifle, shotgun, machine gun or assault weapon, you are subject to a 5 year minimum state prison sentence.

• Committing an armed burglary subjects you to a minimum sentence of 10 years. If that armed burglary is committed with a firearm, rifle, shotgun, machine gun or assault weapon that minimum sentence goes up to 15 years.

• If you are in armed with a firearm, rifle, shotgun, machine gun or assault weapon when you commit an armed assault with intent to rob or murder, you are subject to a minimum state prison sentence of 10 years.

• If you use a firearm, rifle, shotgun, machine gun or assault weapon in order to commit a kidnapping, you are subject to a minimum sentence of not less than 10 years.

• Being charged with firearm possession while under the influence of alcohol or drugs will subject you to up to 2.5 years in the house of correction.

How can a firearm offense affect my life?

If convicted, it will affect you by the obvious consequence of potential penalties of imprisonment. In addition, there are many potential “collateral consequences” such as having been convicted of a felony (which has a great number of future consequences, such as affecting your ability to get a job) and strict probationary conditions. It would also be a disqualifying reason on an application for a valid gun license.

Can I legally own a machine gun in Massachusetts?

No. Massachusetts law states that “[n]o person shall be issued a license to carry or possess a machine gun in the commonwealth, except that a licensing authority or the colonel of state police may issue a machine gun license to: (i) a firearm instructor certified by the municipal police training committee for the sole purpose of firearm instruction to police personnel; (ii) a bona fide collector of firearms upon application or upon application for renewal of such license.” G.L. 140, § 131(o).

If I have been convicted of a drug crime can I receive a gun license?

No. This may be for a variety of reasons. You are disqualified from obtaining a gun license if you have been convicted of: a felony; a misdemeanor punishable by more than two years; or a violation of any law regulating the use, possession or sale of controlled substances (drug crimes).

EKG Law Can Help

The attorneys of Eisenstadt, Krippendorf & Galvin, LLP have extensive expertise in defending gun and firearm related crimes and have the ability to protect your rights and make sure you get the best possible outcome for your case. All of our attorneys are former prosecutors (including several specially assigned to the Superior Court Gang Unit), and have handled all nature of firearm cases in the district and superior courts. They know what issues to look for and what arguments to make to try to get the evidence against you thrown out. They have the skills and experience to take your case to trial and make the best arguments to a jury. Our attorneys will fight to get you the best outcome in your gun/firearm case.

Schedule your free phone consultation with a criminal defense attorney at Eisenstadt, Krippendorf & Galvin, LLP  by filling out our confidential contact form or by calling 24/7 to get live help at (617) 523-3500 right now.