COMMON DEFENSES IN FIREARMS CASES
License or Expired License
A defense to possessing or carrying an unlicensed firearm is that the accused has a license, and in some cases, an expired license. The police will typically do a Massachusetts license check when they come across someone in possession of a firearm and do not do any further inquiry before charging. In one of my cases, my client was pulled over when traveling from Maine and the police found a shotgun in his trunk. A shotgun does not require an FID in Maine and although Massachusetts guns laws apply to people with guns in Massachusetts, there is a travel exception for someone who is passing through (not stopping for anything beyond food and gas) the state for lawful purposes.
In another case, a client who had been arrested on an unrelated matter faced additional gun charges because when the police executed a search warrant when investigating the first case, and found rifles and shotguns. My client had an expired FID card. The police charged him and the prosecutor indicted him, all unaware that he fell under an exemption to the heavy criminal penalties imposed on people found in possession of firearms without a valid license. A person in possession of rifles or shotguns with an expired FID card, who has never been rejected in an attempt to renew it, only faces a civil fine for those guns.
Not a Firearm
Guns need to be operational to qualify as a firearm which means that they need to work. A client was charged with possession of a sawed-off shotgun even though the stock was not only removed – it was missing. In cases where I have reason to believe that the gun is not operational, I hire a certified firearms expert to examine the weapon and watch the police’s test-firing of the alleged firearm to make sure that they don’t make any repairs to render it operational.
In cases where the gun is found in a house, car, or anywhere other than on the accused’s body, a defense that the gun was not possessed by the person charged becomes viable. In cases like this, the police will typically find a gun hidden in a nearby location to where the accused has been stopped and the defense is that the gun was not his. In an unusual case, my client’s girlfriend went to the police and told the officers that there was a gun stashed in the closet of the house that belonged to him. The police took the gun and charged my client with illegal possession of the gun. Because the police did not fingerprint the gun or otherwise tie the gun to him, it was possible to argue that the gun belonged to someone other than him.
Guns are often seized under chaotic circumstances during encounters with the police and the officers often ignore constitutional protections against illegal searches. As such, guns are routinely subject to suppression from evidence because police illegally searched a person, home or car for a possible firearm.
A large capacity gun found in my client’s car was suppressed in the Superior Court because the police improperly pulled my client over for no valid reason. The police alleged that they stopped the car because of excessively tinted windows. Before approaching the car the officer ran the plate which was registered to a woman and was shown to a warrant. Upon approaching the car he saw my male client sitting in the car and also should have been able to see that the tinted windows had the markings of having been installed by the manufacturer which exempts the car from the tinting law. The judge held that as soon as the officers approached the car and saw a male driver and the window markings, they should have let him go without any further demand for his license. The case was dismissed since the evidence of an illegal firearm was suppressed.
A judge in the Superior Court suppressed guns and several pounds of marijuana after police kicked down the door of an apartment following a report that a man had been beaten up and threatened with a gun. The detective who authored the police report claimed that officers noticed the guns and drugs in plain view as they quickly went through the apartment to make sure that there were no people who posed a threat to them. I demanded the “turret tape” which is a recording of all police communications over the radio and called all 9 officers who responded to the scene. Through their testimony and the recording I was able to establish that the people in the apartment had already been taken outside and arrested long before the police found the guns during an illegal warrantless search. The case was dismissed since the evidence had been suppressed.
If you have been charged with a gun offense, you need a lawyer who knows the gun laws and has expertise in suppression matters. I have repeatedly lectured on illegal searches during police encounters and have a proven track record of winning suppression motions. I can bring that knowledge and experience to your case. Contact me today for a free consultation.