S.2210 “An Act Relative to Sentencing Laws”

This bill was rolled into H.4703, click here for more information

GOAL Works With Legislators on S.2210

On Thursday, November 26th the Massachusetts Senate took up the Crime Bill S.2210 “An Act Relative to Sentencing Laws”. Prior to the morning of the floor debate, there was nothing in the bill that gave GOAL any concerns. It was not until minutes before the bill was brought up for debate that we learned of an amendment to change the laws regarding the “Dangerous Statute”, Section 58A of Chapter 276. The Dangerous Statute is a law that allows the courts to hold certain suspects for up to 90 days without bail after a hearing.

The amendment to the bill was a response to a ruling the Massachusetts Supreme Judicial Court (MSJC) handed down in COMMONWEALTH vs. Thomas YOUNG (SJC-10147) last May. The ruling was in regards to the holding of people charged with unlawful possession of firearms. Specifically, is it lawful to hold such persons under the dangerousness statutes in Section 58A of Chapter 276 without bail for up to 90 days?

Currently Section 58A does not enumerate unlicensed possession of a gun as a reason to hold a person as dangerous. In their decision, the MSJC in a four to one decision, agreed and gave the following conclusion:

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.

It was a very narrow reading of the Court’s conclusion that led to the amendment that was unanimously passed to S.2210. Because of the misleading information provided to them, supporters of the Second Amendment in the Senate thought they were doing the right thing by voting for it.

The amendment that was passed would allow the courts to hold suspects without bail for unlicensed possession of a handgun, high capacity weapon or machine gun. The problem with the amendment was that it did not take into account the additional statements in the court’s ruling. 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”.

Clearly it was the intention of the court to express that the problem was not just that 58A did not list unlicensed possession as a predicate offense, but that unlicensed possession separate of a criminal act of violence was not a valid reason to hold someone or regard them as dangerous.

What seems to have been lost in this effort to move so quickly on this is that the laws regarding holding suspects without bail are supposed to be reserved for the worst of the worst. It is supposed to be used for suspects who have a known track record of violence. That some prosecutors view simple possession as such an issue reflects enormously on the social immaturity regarding firearms.

Certain Massachusetts officials forget that many states around us don’t even license handgun ownership. That being the case, how can the Commonwealth categorize mere possession without a license, separate of another criminal act, to be an infraction worthy of holding a citizen without bail?

GOAL does agree that there is a need to keep truly dangerous people off of the streets. That is why we have drafted a piece of legislation called “An Act Relative to the Pretrial Detention of Violent Offenders.”

The bill is being filed by Representative George Peterson of Grafton.

This proposed legislation is intended to give prosecutors and the courts a clear and 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 violent felony firearm offenders with a proven criminal history. The language in GOAL’s bill makes the criteria very clear as to who can be held without bail. The key component is that the person in question has previously served a prison sentence for a violent crime.

(Paragraph 1 of GOAL’s bill) 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.

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 will work to correct the language when the bill comes to the House. Other than the valid concerns of innocent unlicensed persons being entrapped, there is the real possibility that the Senate language will not pass the muster of the MSJC if challenged. If this happens, the legislature will have to start the process of fixing it all over again.

*This page is made possible by the membership of GOAL and their generous donations. If you found this page helpful please Join - Support - Donate to GOAL.


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