H.4703 CORI Bill/Dangerousness Statute Legislation information.
This bill is the culmination of H.4428 (see below), S.2210, and S.2220. It is currently awaiting discussion by a conference committee of 6 legislators. (3 Senators and 3 Representatives) We will update this page as information develops.
May 27th update. Victory!
CORI Bill Update
May 27, 2010
Over the past few days GOAL members have received several requests for action by the GOAL staff due to the busy pace of legislation at the State House. We are very pleased to tell our members that your response in the way of phone calls and emails to your legislators has been very successful.
Over the course of two days GOAL alerted our members to four action items.
1. The Senate budget contained an amendment (#121) that would have adopted language allowing the courts to hold citizens without bail for simple unlicensed possession of certain types of firearms.
2. During the House debate on H.4703, the “CORI Bill” (Criminal Offender Record Information) two amendments were filed:
a. Amendment # 29 would have changed the laws regarding the private sales and transfers of guns to be done though a licensed dealer.
b. Amendment #30 would have provided a 10 year prison sentence for the attempt of or commission of a misdemeanor while carrying a firearm while committing or threatening physical harm of another. (This language is very loose and could have led to serious criminal issues for minor offenses.)
3. During the House debate on H.4703, the “CORI Bill” section 113 of the bill would have allowed the courts to hold citizens without bail for simple unlicensed possession of certain types of firearms. This language would have been in violation of the Massachusetts Supreme Judicial Court (SJC) ruling Commonwealth vs. Young. This decision ruled that simple unlicensed possession is a “passive and victimless crime”.
GOAL offered an amendment to this section through Rep. George Peterson to correct the language putting it in line with the SJC ruling. Our amendment would have tightened up what the courts could consider and provided a tougher tool for prosecutors.
Working together we were successful in defeating the Senate budget amendment (#121) and the two anti-civil rights amendments (#29 & #30) to H.4703.
The biggest challenge came with attempting to fix section 113 of H.4703. Sam Sutter, the District Attorney from Bristol County was trying to put a lot of pressure on House members to give the courts the ability to hold citizens for simple unlicensed possession in spite of the SJC ruling.
Because of your quick response to the action alerts, your phone calls and emails told legislators you were paying attention and wanted this done right. In the end we did not get our original amendment, but we were able to substantially change the section to protect citizens from wrongful detention without bail for simple possession. The language that we were successful in attaining can be found below.
Congratulations to all of our members who reacted so quickly to GOAL’s action alerts this week. Many times during this legislative push our staff was told by legislators that they had received communications on these matters. We would also urge our members to send a note of thanks to Rep. George Peterson for his tremendous efforts on this bill.
Note: The last sentence dealing with feeding devices may be a little confusing to some. It was put there due to an argument from GOAL during the senate debates on this in February. At that time we successfully argued that someone driving through the Commonwealth with a high cap magazine in their vehicle, and nothing else, should never be held as a dangerous person. In this new House language it wasn’t necessary to add because of the changes we were able to attain, but it also does no harm. All it means is that if you are a felon, person on bail, or on probation and you are arrested for unlawful possession of a high cap magazine, you must also have possession of the gun to be held under this law.
H.4703 amending Section 58A of Chapter 276:
The commonwealth may move, based on dangerousness, for an order of pretrial detention or release on conditions for any convicted felon, person on bail, person on probation who is arrested and charged with violation of paragraph (a), (c) or (m) of section 10 f chapter 269 or arrested and charged with a violation of section 10G of said chapter 269; provided, however, that the commonwealth may not move for an order of detention under this section based on possession of a large capacity feeding device without simultaneous possession of large capacity weapon.
GOAL would once again like to thank everyone for bearing with us during this busy time. Thanks to everyone for taking action, and a very big thanks to Rep George Peterson, who remains a great advocate for the Second Amendment and Civil Rights.
May 26th Alert!
More anti-Civil Rights legislation happening NOW!
It's a busy day at the State House.
Please call your State Representative ASAP and ask them to oppose these two amendments filed by Representative David Linsky to House Bill H. 4703
If you live in the Natick area and are represented by Representative David Linsky please take an extra minute to drop him a note/place a call and let him know that you are a voter and do not appreciate his continued anti Second Amendment legislation.
More information about H.4703 below.
Please ask your House Representative to Support Rep. Peterson's Amendment to Section 113 of H. 4703!
House to Take Up Pre-trial Detention Language
In the second attempt this week, the legislature is attempting to act on pre-trial detention language. The first was in the Senate budget. Now on Wednesday, May 26, 2010 the Massachusetts House of Representatives is scheduled to vote on H.4703 "An Act Reforming the Administrative Procedures Relative to Criminal Offender Record Information and Pre and Post Trial Supervised Release". The bill is commonly referred to as the "CORI" bill. Section 113 of H.4703 contains pre-trial detention language that GOAL has been alerting its members about since the senate passed the language in S.2220.
The language of section 113 would allow the courts to hold citizens without bail for simple unlicensed possession of a handgun (loaded or unloaded), machine gun or large capacity weapon. This language is in violation of a Massachusetts Supreme Judicial Court (SJC) Ruling, Commonwealth vs. Young, in May of 2009. This ruling stated that simple, unlicensed possession is a regulatory matter not a criminal matter.
Representative George Peterson will be filing an amendment on behalf of GOAL to correct the language in H.4703. The GOAL amendment will correct the bill with language meeting the SJC ruling. Our language would allow for the arrest and detention of persons committing criminal acts outlined in the existing pre-trial detention law while in possession of an unlicensed gun.
Please contact your House Representative and urge them to support Rep. Peterson's amendment correcting Section 113 of H.4703. To find your Representatives contact information, go to: http://www.wheredoivotema.com/bal/myelectioninfo.php
·Stop citizens from being held without bail for simple unlicensed possession. (Remind them that many states don't have gun laws and licenses like Massachusetts.)
·Correct the language to meet the standard set by the Massachusetts Supreme Judicial Court.
·Give the courts a tool to hold truly dangerous people who have committed violent acts.
5/25/10 Alert: Please ask your Senator to oppose Senate Budget Amendment 121
This is the amendment #121 straight from the Senate budget;
Mr. Montigny moved that the bill be amended by inserting at the end thereof the following new Section:-
SECTION____. Section 58A of chapter 276 of the General Laws, as appearing in the 2008 official edition, is hereby amended by striking out subsection (1) and inserting in place thereof the following subsection:
(1) The commonwealth may move, based on dangerousness, for an order of pretrial detention or release on conditions for a felony offense that has as an element of the offense the use, attempted use or threatened use of physical force against the person of another or any other felony that, by its nature, involves a substantial risk that physical force against the person of another may result, including the crimes of burglary and arson whether or not a person has been placed at risk thereof, or a violation of an order pursuant to section 18, 34B or 34C of chapter 208, section 32 of chapter 209, section 3, 4 or 5 of chapter 209 A or section 15 or 20 of chapter209C, or arrested and charged with a misdemeanor or felony involving abuse as defined in section 1 of said chapter 209A or while an order of protection issued under said chapter 209A was in effect against such person, an offense for which a mandatory minimum term of 3 years or more is prescribed in chapter 94C, arrested and charged with a violation of section 13B of chapter 268 or a third or subsequent conviction for a violation of section 24 of chapter 90, or arrested and charged with a violation of paragraph (a), (c) or (m) of section 10 of chapter 269; provided, however, that the commonwealth may not move for an 882 order of detention under this section based on possession of a large capacity feeding device without simultaneous possession of a large capacity weapon; or arrested and charged with a violation of section 10G of said chapter 269.
This amendment if passed, could go against a State Supreme Court decision which found the unlicensed possession of a firearm a victimless crime;
"While we are cognizant that unlicensed possessors of firearms may use firearms unlawfully, unlicensed possession of a firearm itself is a regulatory crime. It is passive and victimless."
This amendment, if passed will re-interpret the decision of the SJC making the unlicensed possession of a large capacity firearm a crime in which the defendant could be held without bail under a "dangerousness statute"
Please call your State Senator today and urge them to oppose budget amendment 121!
Locate your Senator here.
This amendment could also affect the following legislation, see below;
H. 4428 Pre-Trial Detention Bill, S2220 C.O.R.I. Bill
In May of 2009 the Supreme Judicial Court of Massachusetts (SJC) handed down a ruling referred to as Commonwealth v. Young SJC-10147. This ruling was in regard to the holding of people as a charged with unlawful possession of firearms as a dangerous person without bail for up to 90 days under the dangerousness statutes in Section 58A of Chapter 276.
In the decision, the SJC ruled that the Commonwealth could not hold people for unlicensed possession of a firearm under the current statute. The court concluded:
Conclusion: In holding that unlicensed possession of a firearm is not a predicate offense for purposes of § 58A, we are not unmindful of the dangers relating to unlicensed possession of firearms. Nevertheless, in the absence of clear legislative intent to the contrary, we cannot rewrite or torture the statute's language to include this offense.
With this narrow reading of the decision, certain District Attorneys around the state took it to mean that they only needed to amend the law to include unlicensed firearm offenses. The proponents of this incorrect change have been successful in adding language to two different pieces of legislation that are moving through the legislative process. They are as follows.
H.4428 - An Act Making Gun Law Violations Subject to Dangerousness Hearing Determinations
S.2220 - An Act Reforming the Administrative Procedures Relative to Criminal Offender Record Information and Pre and Post Trial Supervised Release
The language being added is “…or arrested and charged with a violation of paragraph (a), (c) or (m) of section 10 of chapter 269 provided, however, that the commonwealth may not move for an order of detention under this section based on possession of a large capacity feeding device without simultaneous possession of a large capacity weapon or arrested and charged with a violation of section 10G of said chapter 269.”
Unfortunately it is GOAL’s belief that this additional language does not meet with the SJC’s decision. A complete reading of Young reveals the full opinion of the court that simple unlicensed possession should not be considered as dangerous and therefore not used for pre-trial detention.
In the official discussion of the case, the court stated the following:
“While we are cognizant that unlicensed possessors of firearms may use firearms unlawfully, unlicensed possession of a firearm itself is a regulatory crime. It is passive and victimless.”
“Unlicensed possession of a firearm does not, by its nature, involve a substantial risk that physical force against another may result. That a person possesses a firearm without a valid license does not itself pose a substantial risk that physical force against another may result. Rather, it is the unlawful use of a firearm that involves a substantial risk that physical force against another may result.”“The elements of unlicensed possession of a firearm, see note 9, supra, do not require proof that a defendant purposefully evaded firearm licensing requirements, see Commonwealth v.
Jackson, supra, let alone proof that a defendant's failure to obtain a license was motivated by a desire to use the firearm for an illicit purpose”.
It is clear from this language in the decision that the SJC did not approve of simple unlicensed possession as being an offense worthy of pre-trial detention. Instead the court stated that such an offense must be connected to a dangerous action. As a result of the complete reading of the decision, the language added to these bills is incorrect.
Soon after the Young decision, GOAL filed our own version of a pre-trial detention bill that included firearm offenses that were connected to violent action. Our bill was filed by Representative George Peterson and would have met the conditions set forth by the SJC. Some members of the legislature believed we set the bar too high in our original legislation. As a result, GOAL has offered a redraft.
The redraft of the GOAL has offered would create a separate section of law for pre-trial detention regarding criminal firearm use for prosecutors to use. The new draft simply attaches unlicensed possession with the offenses listed in the original dangerousness statute (58A). It also gets tougher by allowing no “conditional releases” from pre-trial detention if the conditions are met. Currently in 58A a judge may grant certain conditional releases for several reasons.
GOAL will continue to work on this legislation and will update our members as necessary.
GOAL Files Pre-Trial Detention Bill
On Monday, May 4, 2009 the Massachusetts Supreme Judicial Court handed down a ruling regarding the holding of people in Massachusetts charged with unlawful possession of firearms. Specifically, the court ruled that it is unlawful to hold such persons under the dangerousness statutes in Section 58A of Chapter 276. This ruling came as a result of a lawsuit filed from a defendant who was held as a result of the Bristol County District Attorney Sam Sutter suing the current statute in an attempt to label people without a license as dangerous.
In a four to one decision the court ruled:
Conclusion: In holding that unlicensed possession of a firearm is not a predicate offense for purposes of § 58A, we are not unmindful of the dangers relating to unlicensed possession of firearms. Nevertheless, in the absence of clear legislative intent to the contrary, we cannot rewrite or torture the statute’s language to include this offense.
In the discussion of the case the court stated the following:
Unlicensed possession of a firearm does not, by its nature, involve a substantial risk that physical force against another may result. That a person possesses a firearm without a valid license does not itself pose a substantial risk that physical force against another may result. Rather, it is the unlawful use of a firearm that involves a substantial risk that physical force against another may result.
The elements of unlicensed possession of a firearm, see note 9, supra, do not require proof that a defendant purposefully evaded firearm licensing requirements, see Commonwealth v. Jackson, supra, let alone proof that a defendant’s failure to obtain a license was motivated by a desire to use the firearm for an illicit purpose.
Gun Owners’ Action League (GOAL) certainly agrees with the court’s ruling on this matter. Massachusetts laws are so poorly written and convoluted that it takes very little to run afoul of them with no criminal intention. With that, it would be an act of an unjust government to label a person dangerous and hold them without bail simply because they did not have the correct piece of paper. Apparently the court agrees.
GOAL does agree that there is a need to keep truly dangerous people off of the streets. That is why GOAL has filed a piece of legislation called “An Act Relative to the Pretrial Detention of Violent Offenders.” (The bill does not currently have a number.)
This proposed legislation is intended to give prosecutors and the courts a separate tool, aside from Section 58A. This Act does not affect the existing language in Section 58A thus leaving those tools in place. Instead, the new language provides a separate means to hold unlawful firearm offenders with a proven violent past. The language in GOAL’s bill makes the criteria very clear as to who can be held without bail. In order to meet the criteria set forth in our bill, the defendant would have to be:
GOAL’s proposal is also stronger than the existing language in Section 58A. In our language, if a defendant meets the criteria and the judge agrees there are no conditions of release. Because of the clarity of the new language, there should be no doubt that the defendant in question has a proven violent past and is not someone who simply ran afoul of an indiscernible set of licensing laws.
GOAL would like to thanks Representative George Peterson for filing this legislation on our behalf as well as all of the co-sponsors that have signed on to the bill.
Rep. George Peterson, Jr.
Senator Michael Moore
Senator Richard Moore
Rep. Bradley Jones
Rep. Elizabeth Poirier
Rep. Paul Frost
Rep. Daniel Webster
Rep. Todd Smola
Rep. Susan Williams Gifford
Rep. Anne Gobi
Rep. Geraldo Alicea
Rep. Denis Guyer
Rep. James Arciero
Rep. Robert Rice
Rep. Robert Spellane
Rep. William Pignatelli
Rep. David Sullivan
Rep. John Binienda
Rep. Angelo Puppolo, Jr.
Rep. Paul Kujawski
Rep. Danielle Gregoire
Rep. Stephen Kulik
An Act Relative to the Pretrial Detention of Violent Offenders
Chapter 276 of the Massachusetts General Laws shall be amended by inserting after Section 58B the following section:
SECTION 1: Chapter 276: Section 58C. Conditions for pretrial detention of persons accused of certain felony firearm offenses and violent crimes; hearing; order; review
(1) The commonwealth may move, based on dangerousness, for an order of pretrial detention for a person who has been charged with a second or subsequent offense of felony possession of a weapon or machine gun as defined in section 121 of chapter 140 and has been previously convicted of a violent crime as defined in section 121 of chapter 140 having served a committed term of imprisonment after sentencing had been carried out for said violent crime.
(2) Upon the appearance before a superior court or district court judge of an individual charged with an offense listed in subsection (1) and upon the motion of the commonwealth, the judicial officer shall hold a hearing pursuant to subsection (3) issue an order that, pending trial, the individual shall be detained under subsection (4).
(3) When a person is held under arrest for an offense as outlined in subsection (1) and upon a motion by the commonwealth, the judge shall hold a hearing to determine if the conditions of subsection (1) exist to order a pretrial detention under subsection (4).
The hearing shall be held immediately upon the person’s first appearance before the court unless that person, or the attorney for the commonwealth, seeks a continuance. Except for good cause, a continuance on motion of the person may not exceed seven days, and a continuance on motion of the attorney for the commonwealth may not exceed three business days. During a continuance, the individual shall be detained upon a showing that there existed probable cause to arrest the person and that the person meets the criteria set forth in subsection (1). At the hearing, such person shall have the right to be represented by counsel, and, if financially unable to retain adequate representation, to have counsel appointed. The person shall be afforded an opportunity to testify, to present witnesses, to cross-examine witnesses who appear at the hearing, and to present information. The rules concerning admissibility of evidence in criminal trials shall not apply to the presentation and consideration of information at the hearing. In a detention order issued pursuant to the provisions of said subsection (4) the judge shall (a) include written findings of fact and a written statement of the reasons for the detention; (b) direct that the person be committed to custody or confinement in a corrections facility separate, to the extent practicable, from persons awaiting or serving sentence or being held in custody pending appeal; and (c) direct that the person be afforded reasonable opportunity for private consultation with his counsel. The person may be detained pending completion of the hearing.
(4) If, after a hearing pursuant to the provisions of subsection (3), the district or superior court justice finds by clear and convincing evidence that the defendant meets the criteria of subsection (1), said justice shall order the detention of the person prior to trial. A person detained under this subsection shall be brought to a trial as soon as reasonably possible, but in absence of good cause, the person so held shall not be detained for a period exceeding ninety days excluding any period of delay as defined in Massachusetts Rules of Criminal Procedure Rule 36(b)(2). A justice may not impose a financial condition under this section that results in the pretrial detention of the person. Nothing in this section shall be interpreted as limiting the imposition of a financial condition upon the person to reasonably assure his appearance before the courts.
(5) Nothing in this section shall be construed as modifying or limiting the presumption of innocence.
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