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Posted by: Brian823

Interesting case analysis in a District Court Case concerned with LTC
licensee restrictions:

Criminal

Carrying Firearm Without License - Possessing Ammunition Without Firearm
Identification Card

Where a defendant has been charged with carrying a firearm without a license and possessing ammunition without a firearm identification card, I hold that the complaint must be dismissed because the defendant was properly licensed Background
"At about 1:20 am on August 10, 2003, State Police Lieutenant Walter Keenan .. was monitoring speed on Interstate 95 near the Boxford-Topsfield town line, when a Dodge pickup truck sped south at about 90 miles per hour. His [laser] read a speed of 98. Lieutenant Keenan followed the truck in the fourth travel lane. He stopped the truck in Topsfield. The front left and right windows of the truck were rolled down, and Keenan saw the rear window open as well. The occupants were moving back and forth, talking, and eating fast-food chicken Keenan smelled a strong odor of burnt marijuana. He asked the driver, Dwayne
Lilley, for his license and registration. Trooper Silva arrived in a second
cruiser. After giving rights pursuant to Miranda v. Arizona, 384 U.S. 436 (1966), Keenan asked whether there were any drugs in the truck. Dwayne Lilley said no.

Keenan ordered him out, frisked him for weapons and sent him to the front of the truck. "The next exit order was to the defendant, who was sitting in the front passenger seat. Keenan saw a bulge on the defendant which looked like the butt of a pistol. The defendant said it was a handgun, and Keenan retrieved it — a .40 caliber semi-automatic with twelve rounds in the clip and one in the chamber.
The defendant produced a class A license to carry a large capacity (able to hold over 10 rounds) firearm. The defendant said that he and his companions were coming from a club in Maine where they were disc jockeys at a reggae night. He too was directed to the front of the truck. The rear seat occupant, Jason Riguer, was patted for weapons and joined the other two. Keenan searched the truck and found in the back between Riguer's spot and the radio speaker a glassine bag of marijuana and a .22 caliber Browning semi-automatic pistol, with nine rounds in the clip and one in the chamber. He again gave Miranda warnings to the three men and asked about the drugs and the newly discovered gun. Riguer
claimed the drugs. No one claimed the gun. All three were placed under arrest — the defendant for the charges mentioned, Riguer and Dwayne Lilley each for carrying a firearm (the .22 caliber) without a license and possessing ammunition without a firearm identification card, and Riguer for possession of marijuana.
"The case against the defendant rests upon his unlicensed possession of the 40 caliber pistol and ammunition (actual) and the .22 caliber pistol
(constructive). The Commonwealth concedes that the defendant's gun license is a valid Massachusetts class A license to carry a large capacity firearm in effect at the time of arrest. The Commonwealth argues, however, that the defendant possessed these items in violation of a restriction on the license. That restriction is found in a blank space of the license form entitled 'Reason For Issuing License' which is filled in with the words 'Target/Hunting.' (By contrast, the same section in Lieutenant Keenan's class A license states, 'ALL LAWFUL PURPOSES.' Since the defendant was at the time of his arrest engaged neither in target
practice nor hunting, his possession of firearms [the commonwealth contended] must therefore be unlawful, notwithstanding a valid license."
Analysis "The defendant's license sets out the 'reason for issuing' the license, i.e., 'target/hunting.' That reason, however, is only a finding by the issuing authority as to why the license was granted. That finding does not by itself constitute a restriction. Once a finding is made, the license is issued, under the statute 'for all lawful purposes.' It may then be made 'subject to such restrictions relative to the possession, use or carrying of firearms as the licensing authority deems proper.' Nowhere on the defendant's license, however, is there any specification of a restriction, other than a limitation of its use to the holder. Since there is no restriction, there can be no violation of one "Moreover, even assuming that the 'target/hunting' entry could be called a restriction, a violation of it cannot be prosecuted as charged in the complaint.
The licensing statute further says: 'A violation of a restriction imposed by
the licensing authority under the provisions of this paragraph shall be cause for suspension or revocation and shall, unless otherwise provided, be punished by a fine of not less than $1,000 nor more than $10,000; provided, however, that the provisions of section 10 of chapter 269 shall not apply to such violation.' ... Such clear language mandates dismissal of the two gun counts of the complaint.
"As to the remaining count, having a firearm identification ('FID') card is
by definition a defense to a charge of possession of ammunition. ... However, one who has a license to carry a pistol does not need a separate FID card. ..
Thus, a valid license to carry is as much a defense to the ammunition charge as to a gun charge. For the reasons stated, the ammunition count must also be dismissed."
Commonwealth v. Lilley (Lawyers Weekly No. 16-001-04) (3 pages) (Swan, J.)
(Ipswich District Court) (Docket No. 0340CR461) (Feb. 9, 2004).

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Posted by: mpd61

Have to agree with the Judge.


Class "A" LTC is just that. No restrictions, too bad!
"all lawful purposes" means just that. Reason for issue is somewhat ambiguous. Bottom line is the Acts of 1998 are Garbage!

In this situation I would think you have the elements of MGL Ch.269 Sect.10H: "Carrying loaded firearm while under the influence of liquor, marijuana, narcotic drugs, depressants or stimulant substances."
I think this is a $5000 misdemeanor rip.

If you notify the issuing authority, they will usually revoke the LTC immediately. If convicted on the above charge, the LTC is automatically gone for five (5) years. (CH. 140 Sec.131(d) (iii) And what Chief is going to grant another licence to carry to somebody with this on his BOP?

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Posted by: NACop

Hey Brian!

This is good news for you! Keep your firearm and dope separate for when that MSP guy finally figures out who you are! (Paranoia sucks eh?)

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Posted by: Brian823

No 94C in my safe....but plenty of guns.

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Posted by: j809

This is nothing new. We talked about this three years ago at inservice. If you a LTC then you have an LTC regardless of the restriction on it. All you do is notify the issuing authority so they may pull the LTC.

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Posted by: Brian823

Quote:

This is nothing new. We talked about this three years ago at inservice.

Apparently the word didn't get out to everyone....

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Posted by: Dan H

I've heard first hand stories of some cheif's that beleive them to actually be restrictions. After reading this case yesterday I called up a friend to give him the good news. His original LTC was listed "all lawful purposes". When it was due for renewal he was living in a different town, Shre******, they would only issue him one for "sporting" because his job didn't depend on carrying or something like that but it's still a class A. He was very glad to hear about this case.

Posted Sat Sep 25, 10:27:

Brian, do you have the resource info on this case; name, date, which court, something like that?

Posted Sat Sep 25, 10:43:

Disregard, guess I should have looked at the very end

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Posted by: Sgt.berniedo

If the statutes regarding restrictions etc. are not clearly defined, the case should be thrown out. If this goes to the supreme court because the defendant is cnvicted on the gun charges, appeals it, and it is found unconstitutional, due to ambiguity, MA will have to rewrite the statutes for these licenses. Does anyone really understand these licenses? Remember K.I.S.S.?-Keep It Simple and Stupid.

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Posted by: VTCOP

Ok, so was ATF Notified? As this is a federal offense to carry weapons, ammunition and drugs! Theres more ways then one to skin a cat!

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Posted by: dcs2244

There was a case in the 90's, under the 'old law', where a cop arrested a kid because the reason-for-issuing-license was 'sport/target' (similar circumstances to above, but no drugs...just a regular guy...well, maybe a scumbag...but aren't they all potential scumbags? ): the court found the the 'reason for issuing license' was just that: it did not constitute a restriction. If the general court wants restrictions, then CALL THEM RESTRICTIONS!

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Posted by: mpd61

Quote:

Originally Posted by m613 @ 26 Sep 2004 02:30 Ok, so was ATF Notified? As this is a federal offense to carry weapons, ammunition and drugs! Theres more ways then one to skin a cat!

ATF and the U.S. District attorney wouldn't waste their time with such a piddling case dude!

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Posted by: Curious EMT

So, is it pretty safe to gather from this case that regardless of what the issuing department puts on the back, it infact is NOT any sort of restriction, and the class-a is a class-a and one may possess and cary under the general provisions of that lisence without fear of being stoped for a blown tail light, inform the officer that one is carying concealed, and is stuffed for unlawful possession?

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Posted by: BartA1

"So, is it pretty safe to gather from this case that regardless of what the issuing department puts on the back, it infact is NOT any sort of restriction, and the class-a is a class-a and one may possess and cary under the general provisions of that lisence without fear of being stoped for a blown tail light, inform the officer that one is carrying concealed, and is stuffed for unlawful possession?"

EMT,

As far as MGL goes your assumption is correct about the criminal charges not holding up if the case goes to trial. THe other issue that will come out of it is if the PO or the Trooper decides to write a letter to the issuing authority and informing them of the LTC holders violation of the reason for issue of the permit. Based on that letter most Police Chiefs would probably revoke the LTC. So to answer the question yes the person wouldnt be charged criminally but the LTC would still be taken away.

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Posted by: Curious EMT

"As far as MGL goes your assumption is correct about the criminal charges not holding up if the case goes to trial. THe other issue that will come out of it is if the PO or the Trooper decides to write a letter to the issuing authority and informing them of the LTC holders violation of the reason for issue of the permit. Based on that letter most Police Chiefs would probably revoke the LTC. So to answer the question yes the person wouldnt be charged criminally but the LTC would still be taken away."[i]

Well, when I got my lisence from the RMV, i wanted to be able to go to school. Now, driving is part of my job. A RMV Lisence to drive a car is a rmv lisence to drive a car. Bottom line.

And, according to MGL, the class-A "ltc" is a Class A, bottom line. The courts have ruled on it, but the issuing agency would still pull it? Just to flex their muscles becasue... they can? How is that the least bit appropriate? I understand they need the authority to revoke them easily, but when the lisencee is well within MGL's scope of carrying as determined by the courts, im sure there's an appeal process for that....

I am in the process of getting my LTC (I finished my classes (i took 3, not jsut 1), have been doing range time, and am, at this time, only interested in that at this time. (Target, becoming proficient in firearms handleing and accuracy, etc). Thats not to say that 4 years from now I feel I want to cary concealed, or that next week I need to go into Dorchester for some reason and want to pack..... Since the "reason for issuing" can only be changed durring renewal (6 years now, correct?), the issuing department has me by my "balls".... That, IMO, seems a little sideways...
The courts said it was someting. Thats what it is. As I've read in other posts (and i quote) "Jesus! I honestly don't know why we (cops) continually try to make laws, instead of enforcing them!",... so why are departments doing so in that case?
Maybe I am misunderstanding this....

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Posted by: SOT

Everybody and their brother knows that the "reason for issuance" is the restriction (or no restriction within the scope of the Class A ALP.
Since the local CLEO has the right to issue or not, restrict or not, any "reason" to issue is can also be considered a restriction. If it's not ALP, then it's not, it's limited to what's on the permit. If the judge is saying Hey wake up FRB/MSP you need to change the permit so that reason says restrictions...well that's one thing...and that may be addressed in the new permit. Reason will become Restriction and it will be
Class A no restrictions or Class A restricted to hunting and target.

The other reason I don't buy this is that there is then NO other way to "restrict" a Class A save entry of information in that field...and the next permit "down" does not allow for the purchase of high capacity handguns.

As a side note 1. the browning is not an MA compliant gun. It would be interesting to see when it was bought, sold , and who has the FA-10 on it if any. 2. Constructive possession should have coved all the occupants in the car. The holder of the class A allowed an unauthorized person to have access to a loaded firearm, a major problem as the loaded firearm was NOT under his direct control.
3. Were they legal on both ends? If they were not legal on both ends, meaning Maine and MA (Maine requires a permit for out of state persons to carry concealed), then they were legal in neither. 4. Maine DOES NOT have peacable journey for firearms and SPECIFICALLY does not allow for the carrying or transportation of loaded firearms in a
vehicle WITHOUT the person who owns those firearms having a LTC issued by Maine.
(again they were not legal on both ends, so the whole trip is a criminal violation)
5. Interstate trafficking of firearms may come into play as there were guns (who's transport was illegal due to lack of the needed permits) and drugs involved.

Maybe somebody that's close to the case can review some of this as it seems the fellow admitted to violating Maine state law, federal law (FOPA) and then due to those violations, MA state law...the interpretation of the ALP/ Hunting and sporting not withstanding.



Maine
Title 12 Chapter 709 §7406
B. While in or on a motor vehicle or in or on a trailer or other type of vehicle being hauled by a motor vehicle, has any firearm with a cartridge or shell in the chamber or in an attached magazine, clip or cylinder or a muzzle-loading firearm charged with powder, lead and a primed-ignition device or mechanism. [1999, c. 403, §18 (amd).]
[1999, c. 403, §18 (amd).]

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