Boston law regarding confiscation…

[ROCK6]

My wife’s uncle (actually great uncle) lives in Boston and I was shocked to hear that following a burglary report while they were out of town (no firearms were stolen), the police inquired if he owned any firearms. He said yes and they asked to see them and that is when they found them “improperly” stored. Improper was in the closet and under the bed with no trigger locks.

They immediately confiscated them and I’m assuming he lost his license to own firearms (not sure if that’s the case), but he was told he could not keep them and that he needed to sell them. I always thought a trigger lock was an infringement on my firearms but it’s disconcerting that law enforcement could confiscate under such circumstances. This is an older couple in their mid 70’s, but I would think a future break-in where bodily harm was done without the ability to defend oneself would be a hell of law suit.

Fortunately his brother-in-law in Florida is going to purchase them at a discounted price, but this strikes me as a blatant infringement. The sad aspect is the history surrounding Boston and gun manufacturing…

ROCK6

[GJSchulze]

His mistake was letting them see them without a warrant. When you know you're in an anti-gun area, be smart and respectfully decline such a request. They might get a warrant, but they might not.

[dakota.potts]

I think the Heller decision, which specifically talks about the requirement to lock up firearms in the home being unconstitutional, would make this illegal.

[Evan Thomas]

No, his mistake was in not obeying the law concerning storage of firearms, which is very clear in Massachusetts:

Section 131L. (a) It shall be unlawful to store or keep any firearm, rifle or shotgun including, but not limited to, large capacity weapons, or machine gun in any place unless such weapon is secured in a locked container or equipped with a tamper-resistant mechanical lock or other safety device, properly engaged so as to render such weapon inoperable by any person other than the owner or other lawfully authorized user. For purposes of this section, such weapon shall not be deemed stored or kept if carried by or under the control of the owner or other lawfully authorized user.

(b) A violation of this section shall be punished, in the case of a firearm, rifle or shotgun that is not a large capacity weapon, by a fine of not less than $500 nor more than $5,000 or by imprisonment for not more than one year, or by both such fine and imprisonment, and in the case of a large capacity weapon or machine gun, by a fine of not less than $1,000 nor more than $10,000 or by imprisonment for not less than one year nor more than ten years, or by both such fine and imprisonment.

https://malegislature.gov/Laws/Gener...40/Section131l

And if they told him that he had to sell them, that's not the generally accepted meaning of "confiscation."

Definition of confiscation: Seizure and expropriation of private property by a government or its agency as a punishment for breach of a law.

Originally Posted by dakota.potts

I think the Heller decision, which specifically talks about the requirement to lock up firearms in the home being unconstitutional, would make this illegal.

Not so: this law exempts firearms that are "carried by or under the control of the owner or other lawfully authorized user." The Mass. Supreme Judicial Court ruled in Commonwealth v. Runyan (2010) that this distinguishes it from the D.C. law that was the subject of the Heller decision; the latter had no such exemption.

[62coltnavy]

A federal district court in San Francisco reached the same conclusion as Vanya (appeal pending). Personally, I think these decisions are ridiculous and invasion of the right to keep and bear arms. Heller was quite clear that this meant operable firearms, and a firearm locked up in a case is not operable in the case of need. The DC law required the firearm to be locked up or disassembled with the ammo stored and locked up in a different room--this was held to be an unconstitutional infringement. Having to carry a firearm on your person or to lock it up at all other times serves no valid purpose except in the special case where there are minors in the house. And it seems as well a serious invasion of privacy. It is not like a locked case, one of those small gun safes, or a cable lock is going to prevent a burglar from stealing them either. A full blown gun safe is needed for that.

[Texshooter]

Non Free state.

Somebody is surprised?

[dakota.potts]

Wow Vanya, great information.

It's amazing how much the courts deliberate down to the finest details.

[Frank Ettin]

Originally Posted by 62coltnavy

... Personally, I think these decisions are ridiculous and invasion of the right to keep and bear arms....

Whether you think it's ridiculous or an infringement is irrelevant. It's the law until a court throws it out. No one can expect that the law will not be enforced.

The OP's great uncle had the opportunity to comply with the law. Now he has the opportunity to challenge the law in court if he is willing to spend the time and the considerable amount of money such a challenge would require. And given the ruling in Runyan, as cited by Vanya, a successful challenge is a somewhat doubtful proposition.

The take home messages need to be: (1) understand the law; (2) you can not expect that the law will not be enforced; (3) even if you think the law is invalid or unconstitutional, comply with the law unless you are prepared to challenge the law in court.

Originally Posted by dakota.potts

Wow Vanya, great information.

It's amazing how much the courts deliberate down to the finest details.

Yes, when dealing with legal matters the details can matter a lot.

[Frank Ettin]

Originally Posted by ROCK6

...I would think a future break-in where bodily harm was done without the ability to defend oneself would be a hell of law suit....

No, it wouldn't be. See this thread for a discussion of why.

[ROCK6]

Originally Posted by Frank Ettin

The OP's great uncle had the opportunity to comply with the law. Now he has the opportunity to challenge the law in court if he is willing to spend the time and the considerable amount of money such a challenge would require. And given the ruling in Runyan, as cited by Vanya, a successful challenge is a somewhat doubtful proposition.

Thanks Frank, I don't disagree with your comments...not being from the area, it just surprises me. The take-away is that laws are laws and you can stick your head in the sand politically, but that is no excuse for ignorance or not complying.

The only thing I would debate is the confiscation. They physically confiscated the firearms whether it was temporary or not, it is what it is regardless of the law. When will the nonsense bleed over to other "safety violations"? It's easy with gun owners to be a target, but when someone gets their car confiscated because it wasn't locked and could have been stolen and used as deadly weapon it may get attention...oh, and the individual would also lose their driver's license permanently and can never own another car.

They are in no way financially able to fight the charge and as you mentioned, it's not a high probability to even win such a fight. As stupid as the law is, at least they do give you a year to "dispose" of the firearms. His brother in law in Florida will take possession and my wife's father is encouraging him to move to FL.

So, in some places, you now have lost your pursuit of happiness and liberty...hopefully the sheep will wake up when life is no longer a right.

ROCK6

[rwilson452]

Wow Vanya, great information.

It's amazing how much the courts deliberate down to the finest details.
dakota.potts is offline Report Post

A quote from somewhere that I don't remember

"The wheels of justice grind slowly,but they grind exceedingly fine."

[ROCK6]

A question for the more legally astute. For sake of argument and being a Monday-morning quarterback critic, if this situation occurred again and the home-owner called the police to report the burglary (again, no firearms involved), I would surmise that if asked about firearms in the house, you have no legal requirement to answer that question

I wouldn't necessarily want to lie, but if answered, could my wife's uncle just said it was irrelevant and that discussion should be at a later date with a warrant? I guess making the initial call to file a report would give them probable cause to search, but I would suspect there has to be some protection against incriminating yourself. I don't know, I just could see city ordnances like this spreading and putting the majority of ignorant gun-owners at risk...

ROCK6

[GJSchulze]

No, his mistake was in not obeying the law concerning requirements for storage of firearms, which is very clear in Massachusetts:

I'll grant you that. It would seem that he didn't know the law or wasn't thinking clearly because of the burglary. We don't know if the LEO was being snoopy and hoping to get a bust or was interested in knowing if any of them were stolen. At that point, if you know they weren't stolen, you say so. If the LEO persists, than tell him you're upset because of the burglary and that you will do an inventory in the morning.

Having made the mistake of not storing them properly, he had no duty to rat himself out. If the LEO didn't have a warrant, than he could come back with one, meanwhile the gent could lock his guns up.

[Aguila Blanca]

I don't like the law and I hope it will be found unconstitutional. Until then, Frank, the law has been cited. The law specifies the punishment for violation thereof, which is a fine and/or imprisonment. The punishment does not mention having the guns confiscated or being forced to sell them, so how do the police (without benefit of any court action) get to assume custody of the guns and decree that he must now sell them?

[ROCK6]

A little more digging on the issue of confiscation:

Confiscation Facts

Most common reasons why your firearms are confiscated;
1.Denial of application
2.Revocation of License/Card
3.209A Restraining Order

Revocation information (M.G.L. 140 c 129B)
1.Any revocation or suspension of your LTC/FID has to be in writing and will state the reasons.
2.Upon revocation or suspension, the licensing authority will take possession of your LTC/FID and will give you a receipt for fees paid for your LTC/FID. The person whose card is revoked or suspended must take all action required by section 129D (see below)
3.Revocations and suspensions cannot be delayed by appeal. A revoked or suspended card may be reinstated only after the cause of the revocation/suspension has been lifted/cleared.
4.If you believe the revocation or suspension to be unjust or in error, you have 90 days within the receipt of the notice to file a petition for review in the district court that has jurisdiction of the town in which you are licensed. After the hearing, a justice of the court may re-instate your LTC/FID if the justice finds that you are not prohibited by law from possessing an LTC/FID.

(Note if the revocation/suspension is due to a 209A restraining order, please see below)

Surrender/Confiscation of Firearms Information (M.G.L. 140 c 129D)
1.If you receive a notice of revocation or suspension you must surrender your firearms, rifles, shotguns, ammunition, and FID/LTC card immediately to the licensing authority in the city or town that you live in.
2.Your rights after you have surrender or confiscation. (i) After delivery you have one year to transfer your firearms, rifles, shotguns, machine guns, and ammunition to any person legally permitted to possess them, including a licensed FFL of YOUR CHOICE. (ii)Once your firearms and ammunition have been surrendered or confiscated, immediately write and deliver a letter to them with instructions as to where they are going to be transferred. The licensing authority must deliver the firearms/ammunition within ten days of receipt of your letter.
3.The licensing authority, after taking possession of your firearm, rifle, shotgun, machine gun or ammunition may transfer possession for storage purposes to a federally and state licensed dealer who operates a bonded warehouse unless the firearm, rifle, shotgun, machine gun or ammunition is believed to be evidence linked to a crime, in which case the licensing authority will keep possession. Very important in order to avoid the costly fees of having your weapons stored in a bonded warehouse, make sure that you immediately deliver your letter with instructions for transfer to your licensing authority (see above).
4.Any dealer that takes possession of a weapon under the provisions of this section shall: (i) inspect such weapon; (ii) issue to the owner a receipt indicating the make, model, caliber, serial number and condition of each weapon so received; and (iii) store and maintain all weapons so received in accordance with such regulations, rules or guidelines as the secretary of the executive office of public safety may establish under this section
5.Having your firearms and ammunition stored in a bonded warehouse can get very expensive. You will be responsible for paying all storage, handling, and processing fees before you can get them out or have them transferred. This is why delivering your letter with transfer instructions to your licensing authority immediately is so important. Once your licensing authority has your letter they must transfer the firearms/ammunition to your legally designated person, instead of the bonded warehouse.
6.If you leave your firearms and ammunition in a bonded warehouse fees will pile up very quickly and will often times total more than they are worth. You only have one year to get your firearms and ammunition out of the bonded warehouse, after one year they can and will sell them and will only reimburse you the amount of the sale minus the various fees. As stated, often times these fees add up to as much or more than the firearms and ammunition are worth. Be sure to not let your firearms make it to the bonded warehouses! Also, if you let your due storage fees get more than 90 days late, they can legally sell your firearms and ammunition! Know your rights, do not let this happen!

If you lose your FID card, you lose your rights to own firearms. At least they give you rights to choose how you dispose of them I have no idea regarding an appeal once you lose your FID, but it looks like you have a limited time but chances are probably slim you would ever get your FID reinstated. That whole law and process stinks something fierce...now, gun owners are no different than illegal immigrants in that they would avoid reporting or dealing with any law enforcement for any reason to avoid persecution and prosecution...

ROCK6

[Aguila Blanca]

The entire process of needing a permission slip from the state before even being allowed to purchase a firearm simply has to be unconstitutional in the wake of Heller and McDonald. It just hasn't been tested yet. It's not just Massachusetts. Connecticut has required a permission slip to purchase handguns (if you don't have a carry permit) for decades, and with their new law that now extends to long guns, as well. And I believe there are other states that won't allow the purchase of at least some types of firearms without a permission slip.

If you have to seek prior permission, it isn't a right.

[Frank Ettin]

Originally Posted by ROCK6

A question for the more legally astute. For sake of argument and being a Monday-morning quarterback critic, if this situation occurred again and the home-owner called the police to report the burglary (again, no firearms involved), I would surmise that if asked about firearms in the house, you have no legal requirement to answer that question...

On the other hand, if you report that your home has been burglarized, your home is now a crime scene. The police have broad authority to search a crime scene to look for evidence to assist in the investigation of the crime. You will need to report the burglary, because that is usually a required to collect on an insurance claim. And don't you want the burglary investigated?

The risk of a burglary or some other crime in your home, while rare, illustrates the importance to complying with things like firearm storage laws. If you report a crime on your property, the police can come to investigate and can search to the extent reasonably appropriate to the investigation.

[Frank Ettin]

Originally Posted by Aguila Blanca

...The punishment does not mention having the guns confiscated or being forced to sell them, so how do the police (without benefit of any court action) get to assume custody of the guns and decree that he must now sell them? ...

As far as this goes, we now have a real life serious legal matter, and this isn't the place to discuss these point.

The OP's great uncle needs a good law and should be addressing these points with his lawyer. Maybe the police did overstep their authority. Or maybe there are peculiarities of Massachusetts procedures that we're missing. Maybe such procedures, if they exist, are vulnerable to challenge.

In any case, those are matters the OP's great uncle needs to take up in privileged communication with his legal counsel.

[Tom Servo]

The entire process of needing a permission slip from the state before even being allowed to purchase a firearm simply has to be unconstitutional in the wake of Heller and McDonald.

Actually, the central thrust of Heller was allowing Mr. Heller to register a handgun in the District. Neither that or McDonald precluded licensing or permitting.

[ROCK6]

Originally Posted by Frank Ettin

On the other hand, if you report that your home has been burglarized, your home is now a crime scene. The police have broad authority to search a crime scene to look for evidence to assist in the investigation of the crime. You will need to report the burglary, because that is usually a required to collect on an insurance claim. And don't you want the burglary investigated?

The risk of a burglary or some other crime in your home, while rare, illustrates the importance to complying with things like firearm storage laws. If you report a crime on your property, the police can come to investigate and can search to the extent reasonably appropriate to the investigation.

Yeah, that's what I feared and suspected. Again, the fear of the law continues to grow. How many would just suck up the burglary (if not too severe) just to avoid dealing with the police. I guess the best course of action is again, not only know the law, but carry around a checklist to review before contacting law enforcement. The sad part is you have a 70+year old couple who get penalized for ignorance right after they were victimized by those that intentionally and purposely broke the law.

I've been serving this country and protecting the Constitution for over 25 years, I just hope we don't wrap our selves in legal chains of bondage...when people start fearing the laws more than the law-breakers (or when law-abiding inadvertently becomes the law-breakers through ignorance), I start to feel our system is losing it's purpose.

ROCK6

[Aguila Blanca]

Originally Posted by Tom Servo

Actually, the central thrust of Heller was allowing Mr. Heller to register a handgun in the District. Neither that or McDonald precluded licensing or permitting.

But neither ruled that a pre-purchase permission slip is constitutional, either. That wasn't the question asked, so the SCOTUS didn't go there. That's all part of what Scalia referred to in his Heller dicta as "presumptively" constitutional existing laws. That just means these laws are "presumed" [for the moment] to be constitutional because they haven't [yet] been challenged.

That said, there is still a difference between a requirement to register something after you've bought it, and needing permission from the state before you can buy it. I don't need a permission slip to buy an automobile ... but I do have to register it if I intend to drive it on public streets.

Also, Heller preceded McDonald, and I think Alito was much more clear and direct in McDonald than Scalia was in Heller about stressing the point that self defense is the core right protected by the 2nd Amendment. Now that it has been determined by the highest court in the land that self defense is the core right, any law that requires obtaining the state's permission before purchasing the specified tool with which to exercise self defense has to pass a higher level of scrutiny, and I don't see how requiring people to ask permission to exercise a "fundamental" can withstand either intermediate or strict scrutiny.

[GJSchulze]

And what you are usually told by the police after a burglary is to not expect that you will ever see your property again nor are they likely to catch them. So the great uncle got screwed twice.

[bikerbill]

Would the fact that the house was a crime scene (the site of the burglary) negate the need for a warrant? If somebody breaks into your house, can the police not come in to look for clues, fingerprints, etc., without one?

[Evan Thomas]

Yes. See post #17, above.

[Aguila Blanca]

A burglary isn't the only issue. If there's a fire, not only do the fire fighters have to enter to fight the fire. After the fire, the fire marshal has to investigate to determine the cause of the fire. At least in my state, if the fire marshal has any doubts he'll call in investigators from the State Fire Marshal's office. Those investigators just happen to be sworn state police officers, complete with badges and guns.

I don't know if New York law has changed, but twenty or so years ago fire marshals in New York City were sworn law enforcement officers with guns and full arrest powers. I met a retired NYC fire marshal who described gun fights resulting from armed stakeouts of buildings deemed likely targets of arson.