In Massachusetts, it is unlawful for a person to knowingly possess or have under his or her control a firearm, whether loaded or unloaded, without either being present in his or her residence or place of business or having in effect at the time a valid License to Carry (LTC) a firearm. In the case of the firearm being a rifle or shotgun, the person must have a valid Firearm Identification (FID) Card.
A person’s residence or place of business for purposes of this offense only includes the area under the person’s exclusive control. That is, common areas of an apartment or office building, public streets or sidewalks, for example, are not included. Unlicensed possession or a firearm in any of these areas is considered a criminal offense. Under Massachusetts criminal law, the crime of Carrying a Firearm Without a License Outside Home or Business may be found at Massachusetts General Laws, Chapter 269, Section 10 (a).
Legal Elements of Carrying a Firearm without a License Outside Home or Business
This offense essentially criminalizes two types of conduct. First it criminalizes the possession of a firearm outside the defendant’s home or place of business. Second, it criminalizes the defendant having under his or her control a firearm in a vehicle.
In order to be found guilty of Carrying of a Firearm Without a License Outside Home or Business under Massachusetts criminal law, there must be strong evidence of the following legal elements: (1) that the defendant possessed a firearm or rifle or shotgun or had under his or her control such while in a vehicle; (2) the item possessed or under the defendant’s control meets the legal definition of a firearm or rifle or shotgun; and (3) the defendant knew that he or she possessed or had within his or her control in a vehicle a firearm or rifle or shotgun.
There are however, other circumstances which may require a fourth element to be proven. If there was evidence that the firearm was in the defendant’s residence or place of business: (4) that the defendant possessed the firearm outside of his or her residence.
If there was evidence that the defendant had a license to carry firearms: (4) that the defendant did not have a valid license to possess a firearm outside his or her home or office.
If there was evidence the defendant was exempt from the licensing requirement: (4) that the defendant did not qualify for one of the exemptions in the law that are a substitute for having a license to possess a firearm outside his or her home or office. It should be noted that the burden is placed on the defendant to produce evidence of one of the exemptions and then it is on the state to disprove the applicability of that exemption claimed.
If the firearm was under the defendant’s control in a vehicle: (4) the defendant must have known that the firearm was there and he or she must have had both the ability and the intention to exercise control over the firearm, but it does not have to be exclusive control.
If the defendant was charged with carrying a rifle or shotgun, the defendant, if applicable, can use the fact that he or she has an active firearms identification card as a defense. This defense however, may not be used for any other firearm.
What is Considered a Firearm Under Massachusetts Law
A firearm is defined as a pistol, revolver, or other weapon, loaded or unloaded, from which a bullet may be discharged, and the length of whose barrel is less than sixteen inches. Basically, the weapon must be capable of discharging a projectile.
Furthermore, a rifle is a firearm having a rifled bore with a barrel length equal to or greater than sixteen inches capable of discharging bullet by the pull of a trigger. A shotgun is a firearm having a smooth bore with a barrel length equal to or greater than eighteen inches with overall length equal to or greater than twenty-six inches and is capable of discharging a shot or bullet by the pull of a trigger.
In every firearm case, the prosecution sends the weapon out to be examined and tested fired by a firearms expert. The purpose for this is to ensure the item meets the legal definition of a firearm under Massachusetts criminal law.
The expert’s efforts are typically reduced to writing in the form of a report and provided to the Defense during pretrial discovery. If a case proceeds to trial, the expert may be called to testify for the prosecution regarding the examination and test firing of the firearm, as well as to provide opinion testimony that the item is, in fact, a firearm under Massachusetts criminal law.
What is the Difference Between Carrying and Possession
In Massachusetts, the law uses the words “carrying” and “possessing” interchangeably. The offense of Carrying of a Firearm Without a License Outside Home or Business, under Massachusetts General Laws, Chapter 269, Section 10(a), uses the word “carrying” rather than “possession” to distinguish itself from the separate offense of Possessing a Firearm without a Firearm Identification Card.
That offense is discussed under Massachusetts General Laws, Chapter 269, Section 10(h). The point is, the word “carrying” is only used as a distinguisher between these offenses and has no material impact on proving guilt for the offense.
Thus, carrying and possession have essentially the same meaning. “Movement” of the firearm is not required for a guilty finding for unlawfully carrying a firearm. Simply possessing the firearm, with knowledge as to existence and nature, is sufficient.
Under Massachsuetts criminal law, there are two way to possess an item: actual possession or constructive possession. Actual possession is when the person has direct physical control or custody of the given item at a given time. Constructive possession requires the person to have knowledge of the item, the ability to exercise control over that item, whether directly or through another person, and the intent to exercise control over that item.
However, merely being present in the vicinity or the item, even if the person knows that it is there, does not amount to possession. The fact that a person was associated with a person who controlled the item or property where the item was found also does not amount to possession.
The law also recognizes joint possession. This means a person can also possess the item even if he is not its sole owner or holder. For example, if a person owns or holds the item or property jointly with another person and is keeping it for the both of them, or it is kept somewhere where both parties have access to it, then it is considered joint possession.
Potential Punishment if Convicted of Carrying a Firearm Without a License Outside Home or Business
The potential consequences for Carrying of a Firearm Without a License Outside Home or Business, if convicted, in the Commonwealth may be found at Massachusetts General Laws, Chapter 269, Section 10 (a). If convicted of this offense, the defendant faces a mandatory minimum term of imprisonment for not less than 2 ½ years nor more than 5 years in state prison or not less than 18 months nor more than 2 ½ years in jail or house of correction.
In addition, Massachusetts criminal law provides for an enhancement if the defendant committed the offense of Carrying a Firearm Without a License Outside Home or Business while the firearm was loaded. Under this circumstance, the defendant will be further punished by imprisonment in the house of corrections for not more than 2 ½ years, which shall begin from and after the expiration of the sentence imposed for the original offense of Carrying a Firearm under Section (a). Essentially, this is a consecutive sentence and it may be found at Massachusetts General Laws, Chapter 269, Section 10(n).
Even if a defendant has a valid License to Carry (LTC) a firearm, there are still restrictions on how the weapon may be carried. For example, a person may not carry on his person or have under his control a loaded firearm in a vehicle while under the influence of liquor, marijuana, narcotics, depressants or stimulants.
If the defendant is convicted of carrying a firearm under these circumstances a punishment of imprisonment in the house of correction for not more than 2 ½ years may be imposed. This offense and punishment may be found at Massachusetts General Laws, Chapter 269, Section 10H.
If you have been charged with the crime of Carrying of a Firearm Without a License Outside Home or Business call (508) 213-9113 to schedule a free consultation with top rated Massachusetts Gun Defense Lawyers of the Law Office of John L. Calcagni III.