Articles Posted in Gun/Firearms Offenses

“Deja Vu, all over again.” I don’t mean for that quote from the late Yogi Berra to be humorous here. I’m talking about yet another mass shooting, this time in Oregon. Ten people killed, seven wounded. For me, as Massachusetts criminal defense lawyer, one of the scariest things about this latest massacre, is this: Here in Boston, this story didn’t even make the Headline on the front page of yesterday’s Boston Globe. It was on the front page, but it wasn’t the headlined story: Another, local story did. That’s how common and relatively un-shocking this type of violence has become.

And once again, the pro-gun control/gun rights advocates will begin the shouting sessions and the finger-pointing at each other. The script never changes; it likely never will. Our country and its elected officials must get beyond this tired, cyclical debate marked by catch phrases such as “Guns don’t kill people, people kill people,” and ask a far more fundamental question:

Why has this country become such a savage, violent society?

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I get an increasing number of calls and emails from people who either want to secure a gun license for the first time (“License To Carry”, or “LTC” in abbreviated legal terms,) or they have been denied a license application by a local police chief, and wish to appeal. Most people think that just hunters and people in dangerous lines of work (such as transporting large amounts of cash to and from a business,) are interested in carrying handguns.

Not so. As a Boston gun license attorney, I can assure readers of this blog that a rapidly growing number of “everyday” citizens either want, or feel the need to carry a gun. It’s not hard to understand: The amount of violence in our society is frightening. Gangs roam the streets not just in urban jungles known for crime, but in the “quiet” suburbs, also. Everyday people fear they could become victims of a Massachusetts robbery crime, or a Massachusetts sex assault. Other people fear the increasing militarization of local police departments, and see in this the makings of government one day threatening the liberty of citizens, if a catastrophic economic crisis ever occurred. Is this an outgrowth of the Tea Party? Conspiratorial thinking? Are these people reactionary extremists? It’s hard to say, but far more people than many would suspect, either carry guns or wish to.

Against this demand, is handgun violence that has reached all-time highs, and vocal calls for increased handgun regulation. How to balance the two competing demands? The Massachusetts Legislature recently considered various proposals on this subject, which I’ve blogged about recently. Just a couple of weeks ago, both branches of state legislature passed and sent to Governor Deval Patrick a “compromise bill – which the governor signed into law. That law provides for the following:

A lot of back-and-forth has been going on up on Beacon Hill lately over gun reform legislation here in Massachusetts. As usual, the warring parties are gun owners and the gun lobby, vs. gun control advocates. Generally speaking, those two camps are represented by the Massachusetts Chiefs of Police Association, favoring stiffer gun control laws, and opposing them the Gun Owners Action League (GOAL), likely assisted by the National Rifle Association (NRA.)

A key point of contention has been whether local police chiefs should have the power to deny an applicant a license for a rifle or shotgun (as opposed to a handgun.) Under existing law, police chiefs are required to give people who pass a standard background check, and satisfy other basic information, what is called a “Firearms Identification Card,” which allows the applicant to then buy shotguns and rifles. However, the procedure for handgun applications is different. For handguns, police chiefs can exercise their own discretion on whether to issue a License to Carry.” A police chief has the unilateral authority to deny an applicant a License To Carry if the chief determines the applicant to be unsuitable, in his or her unilateral discretion. An aggrieved applicant can petition a local District Court judge for a hearing on the license application denial, but not many decisions are reversed.

Currently, the two branches of the legislature are split on whether police chiefs should be given the same discretion to deny firearms licenses to rifle and shotgun owners, as they now have over applications for handgun licenses. The House favors broadening these powers to police chiefs; the Senate version keeps the current scheme, limiting police chiefs’ unilateral powers to solely handgun applications, not to long barrel weapons such as rifles and shotguns. This past week, Governor Deval Patrick weighed in on favoring the House version of the bill, giving chiefs the same discretion on rifle and shotguns licenses that they currently have on handgun license applications.

Something made the local (and some national) news earlier this week, that has to stand out as one of the most shocking, ridiculous overreactions from school officials I have ever seen.

This past Wednesday, March 22, a 5-year-old boy at the Central School kindergarten in Hopkinton, Massachusetts, was standing in line to get on a school bus with his friends. His parents had recently taken him on a February vacation trip to a Wild West-themed park in Arizona, where they bought him a plastic toy cowboy gun and a cowboy hat. Sounds perfectly normal, right? Well, hold on.

That boy, Jonah Stone, showed the plastic toy six-shooter to another kindergarten student standing in the bus line to go home this past Wednesday. The result? This 5-year-old boy – a kindergartner – was pulled off the bus, taken inside the school, and held inside the school principal’s office. His mother, Christina Stone, was summoned to the school, where she was informed that: 1) This 5-year-old boy had violated the school’s policy on “guns,” and 2) That he was being suspended from the school for a day as “punishment.” For the sake of importance, I repeat here: This boy was 5-years old, and this “gun” was – quite obviously to anyone seeing it – a PLASTIC cowboy six-shooter. The boy’s mother, Christina Stone, found her 5-year-old son held in the principal’s office WITH A POLICE OFFICER. The boy was trembling, so scared that according to his mother, he was swallowing his tongue. Mrs. Stone told reporters that the principal, Mildred Katzman, very sternly reproached her and her son, and told Mrs. Stone that when she got home, she should sit down the 5-year-old, and tell him all about the tragedy in Newtown, Connecticut, where 26 people were killed in a shooting tragedy.

In my previous post on this subject, I wrote of how politicians everywhere from the White House on down will now react to this latest shooting tragedy with a predictable, unanimous response: More debate on gun control, with the equally ever-predictable partisan response: Democrats calling for more strict gun control; Republicans opposing. On and on the drivel goes, without end. Surf through every cable news channel you wish, listen to any talk radio shows, read any print media you choose. The chatter will be the same: How did the suspect in this most recent example of the devolution of American society, James Holmes, get the weapons and ammunition he used in his murderous rampage? How was he able to obtain these over the internet? How do we enact laws that can block the sale of weapons over the internet? Are stricter state laws needed? Or more federal oversight? More talk about gun control.

As a Boston firearms lawyer, I know that it’s important to address these questions. Yet all of them will likely obscure the most important question that needs to be asked and addressed, which is: Why is this violence of this type increasing in this country?” What is it about our culture that fosters and breeds this type of behavior?”

The answer, in my professional view: The shocking increase in violence in the media in the United States – All kinds of media: Motion picture films, television programming, violent video games marketed to youth, and even the music industry. The media is probably the only industry in America that has as its primary goal (aside from profit) the ability to publish and broadcast almost anything it wants, without restriction. Government – principally through the FCC- has always tried to impose the most reasonable of standards when it came to broadcast television and radio – but from Day One, the media industry has never liked it, and has never stopped pushing the envelope in terms of the violence that it sells. I encourage readers of this post to take a look at some of my previous blog postings on the subject of violent video games before proceeding further with today’s post. Those observations provide a key basis in the argument in this and my immediately preceding post.

People everywhere are shocked at the Aurora, Colorado theatre shooting massacre that took place yesterday. 21 people killed 59 wounded. On a pedestrian level, that’s obviously very understandable. It frightens one to the core.

Yet, should we really be so surprised that this type of violence has again streaked the face of this country? I don’t ask if we should be sickened or saddened. That answer is obvious. But – if we are to be honest – should we really be surprised?

When events like this happen, comparisons are inevitable. And while comparisons are fitting, they often cloud the most important issue of what is causing this particular type of very public violence. What will be offered in this post will not so much be comparisons as much as an argument as to causation: In the past 25 to 30 years, the amount of violence in the media – both films, television, and even more pernicious and dangerous – violent video games – has proliferated like a deadly virus, a contagion out of control. This type of sociopathology is inevitable in a society whose legal system refuses to allow stronger regulation of violence in the popular media. This type of criminal phenomenon – mass shootings by a disturbed person – first appeared on the American landscape in 1966, when a man by the name of Charles Whitman opened fire from the clock tower at the University of Texas at Austin. He killed 16 people and wounded 31 more. From that time forward – for almost 20 years – almost no mass shootings took place in the United States. Until July 18, 1984, when a man named James Oliver Huberty shot 21 people to death in a McDonald’s restaurant in San Ysidro, Calif. The pace then increased:

Most people who were asked what “Double Jeopardy” is, would think it has something to do with the TV game show. Not exactly. OK – to be fair, you’d probably need to have taken at least one college-level course in criminal justice or pre-law, to understand the answer.

What the answer has to do with, is the U.S. Constitution‘s prohibition on a person being tried twice or punished twice for the same crime. This clause in the Constitution is known as the “Double Jeopardy Clause,” which is found in the Fifth Amendment to the Constitution. In other words, you can’t be charged with a crime, acquitted or convicted, then tried again for the exact same crime. The framers of our Constitution intended for this protection, against potentially overzealous government prosecutors.

The Massachusetts Supreme Judicial Court (SJC) released a decision yesterday, clarifying this principle. In case you think that cases like this always involve murder or such, they don’t. In this case, the crime involved possession of an unlicensed gun; importantly, not use of the gun, just possession of it. Not exactly shoplifting, but not the worst crime under the sun, either – not compared to what I’ve seen, as a Dedham, Massachusetts criminal defense lawyer. In the case the SJC reviewed, a man had been arrested for illegal possession of a firearm, a Massachusetts gun & firearms offense. The police charged him with both illegal possession of a loaded gun, and illegal possession of ammunition – even though the only bullets he was in possession of were in the gun itself. He wasn’t, for example, carrying an extra supply of bullets. Prosecutors had argued that since more than one bullet was found in the gun, a jury could “reasonably” conclude that some of the bullets could satisfy the charge of carrying an unlicensed, loaded gun and the other bullets could be “used” to reach the additional ammunition charge.

Last Friday, a Hampden County Superior Court jury returned a verdict that a lot of people on either side of the gun control debate had been watching closely.

Called informally the “Uzi Death Case,” the former Chief of the Pelham, Massachusetts Police Department, Edward Fleury, was charged with involuntary manslaughter and multiple counts of Massachusetts firearms violations in the October 2008 death of an 8 year-old boy, Christopher Bizilj of Ashford, Connecticut. The young boy was attending a gun fair that was held at the Westfield Sportsman’s Club in Westfield, Massachusetts. While the gun fair was held on the grounds of the Westfield Sportsman’s Club, the event was organized by a company that Edward Fleury owned and operated. While attending the fair with his father, Dr. Charles Bizilj, the young boy lost control of an Uzi submachine gun he was holding, and shot himself in the head in front of shocked onlookers. Those onlookers included the boy’s father and his brother. Prosecutors alleged that Fleury was criminally reckless by allowing children to illegally shoot loaded machine guns, while being “supervised” by a firing range “officer” who was 15 years old at the time, and who possessed neither proper licensing nor firearms training.

Sounds pretty bad, but Fleury’s defense lawyer had some powerful facts to argue to this jury: 1) Principally, the boy’s father, (Dr. Charles Bizilj) had signed a waiver at the fair, acknowledging the risks (including death) involved in letting his son shoot a loaded gun; and 2) The fact that the event had been held for several years previous to this accident, without any problems. Legally, what these two facts did, was seriously damage (if not altogether destroy) the Hampden County District Attorney’s argument that Fleury was “criminally reckless”, a core of the Commonwealth’s charges against him. These facts also undercut prosecutors’ counts of illegally furnishing a machine gun to a minor. Had the above two facts not been present, Fleury may well have been convicted on these charges. If he were, he would have faced combined sentences of up to 50 years in state prison.

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?

In a classic liberal-conservative split, a recent Massachusetts Supreme Judicial Court (SJC) ruling has held that persons who are found to be in illegal possession of a gun or firearm cannot be held in jail pending trial. The ruling is important because many such defendants have been held pending trial, under a state law passed in the 1990’s that was designed to curb domestic (i.e., family) violence. That law, known as the “Dangerousness Statute” was initially enacted as a way to cut down on domestic violence by giving prosecutors and judges the power to hold someone who had only a minor criminal record, but was considered a threat to a spouse or significant other.

After its passage, some District Attorneys’ offices in Massachusetts began to use the Dangerousness Statute to argue that illegal possession of a gun or firearm constituted adequate “dangerousness” to the public, to satisfy a motion to hold the gun violator in jail pending trial. Some District Attorney’s offices saw in the statute, a new tool to rid the streets of violent offenders who are found by police to be carrying a gun illegally. (It will surprise no one that, typically, violent offenders do not carry firearms licenses, or “FID Cards”.) In a 4-to-1 ruling earlier this week, the SJC ruled that gun possession violators can no longer be held in jail under this statute, while awaiting trial. In an extremely controversial decision, the court ruled that illegal gun possession is a “passive and victimless crime.” The court ruled that persons charged with possessing illicit firearms can no longer be held without bail (under this particular statute) as a “danger to society.” (Note to the Justice Spina: While perhaps technically accurate, using the words “passive and victimless crime” to describe the carrying and concealment of an illegal gun, is not exactly the wisest of grammatical choices. And I say this as a Massachusetts criminal defense attorney.)

While several District Attorneys’ offices had used the statute for holding such defendants without bail, it was the office of Bristol County District Attorney C. Samuel Sutter which used it the most. He did so as part of his get-tough law enforcement strategy to cut down on gun violence, by seeking pretrial detention for every person charged with illegal gun possession in his jurisdiction, which includes the high-crime area of New Bedford. His office used it as standard procedure in all illegal firearms arrests, and since taking office, Sutter has sought 269 gun detention cases and prevailed in 163 of them. The case went to the high court after a lower court refused Sutter’s request to hold several suspects on gun charges without bail for 90 days, and Sutter appealed to the SJC. In practical terms, the high court in this case was acting to end confusion among judges: In Bristol County, a Superior Court judge refused to apply the law to one defendant found to be illegally carrying a gun, while a Taunton District Court judge concluded the statute did apply to another defendant charged with the same crime.