Title: Massachusetts Gun Violators Can’t Be Jailed Before Trial As A “Danger” To Public – Part 2 of 2

In my previous post on this subject, I discussed the recent Supreme Judicial Court ruling that persons found to be in illegal possession of a firearm in Massachusetts can no longer be held in jail prior to trial, based on the grounds that such persons present a danger to the public. This ruling has caused a lot of controversy in the legal community, and justifiably so. Very predictably, the opinions on the ruling run straight down the liberal-conservative divide: The “get tough on crime” conservatives feel (with a fair amount of good reasons) that anyone who illegally carries a gun is almost certain to be a violent criminal (commonly gang members,) and that violent criminals should locked up so that the rest of us are made more safe. The liberal bloc, often characterized as “soft on crime,” feel that law enforcement and the courts shouldn’t’ wield this kind of power to lock someone up so easily without that person first committing any violent crime. (Liberals are also often characterized as advocating that criminals should be rehabilitated, not incarcerated. Depending on the nature of the crime(s) involved, this is often a very valid and sound argument.)

So who’s right? Is this ruling by the SJC good for the residents of Massachusetts, or not?

Think about it: The conservative view has its logic: If someone is carrying a concealed and unlicensed weapon, they’re almost certain to be a dangerous criminal, and it is a logical and reasonable conclusion that such persons present a danger to the public — the very type of “dangerousness” that this statute contemplates. But what about the liberal view? If someone bought a firearm solely for the purpose of self-protection and not for the purpose of committing any crime, and then for some reason neglected to secure a Firearms ID Card (otherwise known as an “FID Card”,) and a police officer discovered it, should that person be locked up in jail prior to trial? Before answering, consider: Under Massachusetts law, mace and pepper spray are considered “firearms”. If the SJC had delivered an opposite ruling in this case, and a law-abiding person were to carry pepper spray solely for self-protection (against the risk of sexual assault, murder, or other violent crimes,) and were found by police during a traffic stop to not possess a valid FID card, that person could be thrown in jail, without bail — without first committing any violent crime. Is that fair or just?

Writing for the majority on the court, Justice Francis X. Spina wrote that the relevant statute, M.G.L. Ch. 58A, does not include illegal gun possession on the list of criminal charges that qualify for the “dangerousness hearing” that several District Attorneys’ offices were using to hold such suspects in jail, pending trial. In the ruling, the court also rejected the argument that a catch-all phrase included in the statute gave prosecutors the legal authority to demand dangerousness hearings for dozens of criminal defendants in the past several years. “While we are cognizant that unlicensed possessors of firearms may use firearms unlawfully, unlicensed possession of a firearm itself is a regulatory crime,” Spina wrote. “It is passive and victimless.” Spina added: “That a person possesses a firearm without a valid license does not itself pose a substantial risk that physical force against another may result. Rather, it is the unlawful use of a firearm that involves a substantial risk that physical force against another may result.”

Five of the court’s seven justices heard the case. In a stinging, lone dissent, Justice Judith M. Cowin ridiculed the court’s conclusions, saying the ruling ignores the reality that illegal guns are at the heart of crime in the state.”When a handgun or automatic weapon is involved, the purpose of the firearm is to injure or kill; there is no other reason for that weapon’s existence,” Cowin wrote. “We have recognized in various contexts that firearms are, by nature and design, dangerous instrumentalities.” The majority, Cowin wrote, “reduced to its minimum, is simply a reiteration of the tired slogan that ‘guns don’t kill people, people do.’ We know this to be a dangerous oversimplification. The fact is that people kill people with guns, and in a substantial number of cases those guns are unlicensed.”

Contrary to the position many people would expect me as a Massachusetts criminal defense attorney to hold, I agree with Justice Cowin’s dissent. I find the majority’s opinion lacking in reason and logic. In my view, to write “That a person possesses a firearm without a valid license does not itself pose a substantial risk that physical force against another may result. Rather, it is the unlawful use of a firearm that involves a substantial risk that physical force against another may result”, strains credulity and fails to incorporate simple logic, and ignores the realities of human behavior. It is an overly-pedantic exercise in illogic.

Commenting on the SJC ruling, the District Attorney who brought the challenge, Bristol County District Attorney C. Samuel Sutter, rejected the majority’s thinking. “They are not as closely connected to the reality of urban, violent firearms crimes as I am,” said Sutter, who noted that holding gun violators without bail before trial has resulted in a reduction of “Shots Fired” police reports by 25 percent in Taunton, 34 percent in Fall River, and nearly 40 percent in New Bedford since 2006, when he was elected and began employing this statute. (“Shots Fired” reports refer to police dispatchers sending officers to the scene where gunshots have been heard or witnessed.) Translation: Sutter was saying that because of his get-tough incarceration policy on gun violators, the sheer number of gunshot reports in his county declined dramatically since he began using this statute. I find that both impressive, and persuasive on this argument.

Surprised that I would agree with this position? Don’t be. While I firmly believe that everyone accused of a crime has the right to a full and vigorous defense – and while I zealously fight for every client using every legal tool and technique available to that client, I am also a realist. If someone’s carrying around a concealed, illegal weapon, there’s a reason that person is doing that. The reason involves violent crime, and that’s a danger to everyone. That defendant is entitled to a zealous defense on the charge, but law-abiding citizens of the Commonwealth are also entitled to be protected from violence the results from unregistered weapons.

That position may not make me popular among some of my more civil liberties-oriented colleagues at the criminal defense bar, but I believe it reflects the realities of the world we live in. And I don’t want someone I care about, shot or worse because of short-sighted and pedantic legal reasoning.