Weapons charges are among the most serious offenses in the state of Massachusetts and are found under Massachusetts General Laws, Chapter 269, Sections 10, 11 and 12. Although in 2008, the U.S. Supreme Court in District of Columbia v. Heller, which was a 5-4 decision, interpreted the 2nd Amendment to the U.S. Constitution as guaranteeing the right to bear arms, the justices did permit individual states to place reasonable restrictions on that right. As with any civil rights found in the U.S. or state constitutions, there are no absolute or unrestricted rights.
Massachusetts has some of the most restrictive gun laws in the nation. Many weapons charges carry mandatory minimum prison sentences with no possibility of parole until a certain amount of time has been served. Subsequent weapons convictions carry even harsher sentences as do the commission of a felony while using a firearm. Although you are required to have a permit or license to possess or carry a firearm, there are certain types of weapons that are banned altogether and may not be carried or possessed by anyone other than law enforcement. Some weapons require special permits to possess them. If you are a convicted felon, you have no right to purchase or possess a firearm at all.
Before you can obtain a firearms license or permit, you must complete various safety programs. When you are not carrying the weapon, it must be kept in a locked and secure container. Further, firearms must have certain safety devices on them. Gun dealers must be licensed, conduct background checks before sales, and maintain records of all sales.
If you are thinking of purchasing a firearm or other serious weapon, or you are facing a weapons charge, you should be aware of the penalties involved and possible defenses. For any weapons charge, you need to contact criminal lawyer Paul Moraski if you want highly experienced and knowledgeable legal representation.
Unlawful Possession of a Firearm
You cannot possess or carry any firearm without having a license to do so. State law makes it illegal for you to:
- Carry or possess a loaded or unloaded firearm outside a residence or office without a license
- Possess a firearm anywhere without a valid license
- Possess an illegal firearm or weapon such as a machine gun, sawed-off shotgun, or stiletto knife, blowguns, daggers, or kung fu sticks
Possession of an unlicensed firearm outside your or anyone else’s home or business will result in a mandatory minimum prison sentence of 18-months. You face life imprisonment if you possess a sawed-off shotgun or machine gun.
To be convicted of unlawful possession, the prosecution must prove all 4 elements of the offense by proof beyond a reasonable doubt. These elements are:
- The defendant possessed the firearm either on his person, car, boat, home or office
- The weapon is a firearm, defined as a weapon from which a bullet or shot can be discharged and with a barrel length of less than 16 inches.
- The defendant knowingly possessed the firearm
- The defendant lacked a valid license to carry or possess the firearm
Unlawful Possession of Firearm at Home or Work
You are prohibited from possessing a firearm in your home or place of work or that of anyone else’s if you fail to have a permit or license or special permit for that particular firearm, if required. A conviction carries a mandatory minimum of 2.5 years in state prison or 18-months in a house of correction. You must serve at least 18-months before being eligible for parole.
A second conviction increases the mandatory minimum sentence to 5-years, and a third to 7-years. As noted, if the firearm is a sawed-off shotgun or machine gun, you face life imprisonment.
This offense is pursuant to Massachusetts General Law, Chapter 269, Section 10(h)(1). This statute applies even if the firearm is found in your vehicle since that signifies construction possession.
Carrying a Rifle or Shotgun on a Public Way
Under Massachusetts General Law, Chapter 269, Section 12D, you are prohibited from carrying a rifle or shotgun on a public way. Public ways are sidewalks, streets, public parks, or any other public grounds. If the weapon was loaded, you face up to 2-years. If the firearm was “large capacity,” then you will serve a mandatory minimum jail sentence of one year and face up to 10-years. A large capacity weapon includes assault rifles (AK-47), and semi-automatics with a large capacity feeding device or which is capable of receiving one, or firearms capable of holding more than 10-rounds or more than 5 shotgun shells.
Possession of a Firearm in the Commission of a Felony
Robberies, bank heists, hostage situations, home invasions, car jackings, and gang violence commonly involve the use of firearms. State law treats the commission of a felony while in possession of a firearm as a separate offense from the underlying crime under Massachusetts General Law, Chapter 265, Section 18B. If convicted of the underlying felony offense and a firearm was in your possession, whether it was used or not, the law requires a mandatory 5-year prison term. If you possessed a large capacity firearm, the mandatory minimum sentence is 10-years.
Illegal Discharge of a Weapon
Under Massachusetts General Law, Chapter 269, Section 12F, whether you possess a permit or license or not, you may not discharge a firearm within 500 feet of a residence or dwelling without the resident owner’s consent. If convicted, you could face 90-days in jail and a fine.
Carrying a Loaded Firearm Under the Influence of Alcohol or Drugs
Pursuant to Massachusetts General Law, Chapter 269, Section 10H, you may not carry a loaded firearm if you are under the influence of drugs or alcohol. The prosecution can prove you were under the influence by introducing evidence of the arresting officer’s observations of your slurred speech, inability to walk straight, inability to follow instructions, blood-shot eyes, confusion, or stumbling, or odor of alcohol. This applies whether you had a license to carry or not. If convicted, you could be sentenced to 2.5 years in jail and a fine of $5,000.
Defenses to Weapons Charges
Any defense to a weapons charge will entail a careful review of the facts and circumstances of the seizure of your weapon, your arrest, and the nature of the weapon. Common defenses include:
Unlawful Search and Seizure
If police unlawfully searched and seized your weapon from your home, car, boat, office or other place, your criminal lawyer can move to suppress the evidence. Most searches require that police obtain a warrant especially if it is your home or office that is the target of the search. There is an automobile exception so long as police had probable cause to search your car.
Your attorney will scrutinize a search warrant to see if officers exceeded the scope of the search or failed to satisfy the probable cause requirement needed to obtain the warrant by fabricating facts or other evidence. If the search was without a warrant, then the state must show it was done pursuant to lawful stop and frisk, a search incident to a lawful arrest, was consensual, the weapon was in plain view, or there were emergency conditions where it was not practical to get a warrant given exigent circumstances. There are also good faith exceptions to the warrant requirement.
Lack of Possession
Prosecutors must show you knowingly possessed the weapon. If you were a passenger in a vehicle, or live in a residence with others where illegal firearms are found but did not have access, then it may be difficult to show that you had control over the firearms.
Lack of Knowledge
Similarly, you may have been unaware of the presence of firearms in a shared residence or motor vehicle driven or used by others.
The Weapon does not Fit the Statutory Description
The subject weapon may be incapable of firing a bullet or shot or otherwise does not fit the statutory definition.
There may also be extenuating or mitigating circumstances for why you may have been possessing an illegal firearm that your attorney can explain to a prosecutor or judge.
Retain Criminal Lawyer Paul Moraski
Weapons and gun law violations are serious and demand the skills, knowledge and litigation skills of a seasoned criminal lawyer. Call Paul Moraski at (978) 397-0011 to schedule an appointment to discuss your criminal matter.