Articles Posted in Gun Crimes

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According to data recently released by Massachusetts and the FBI, gun crimes of all kinds are up, these include:

  • Murders committed with firearms
  • Aggravated assaults involving guns
  • Robberies involving guns; and
  • Gunshot injuries

Gun owner advocacy groups point to this data as evidence of the lack of efficacy of gun control laws.

Proponents of such controls argue that increasing violent gun crimes are the result of individuals being able to secure weapons more easily in neighboring states. UnlikeMassachusetts, New Hampshire and Maine do not require a permit or license to buy a gun. However, weapons bought at stores that are federally licensed, whatever the state, do require a background check. Additionally, there is increased concern regarding so called “straw man” transactions, whereby an individual lawfully obtains a weapon, only to turn around and sell it to another individual.

Increasing rates of gun related incidents are occuring despite the strict control laws passed in the state since 1998, which are touted as among the nation’s toughest. These laws include a ban on semiautomatic assault weapons, stringent licensing requirements, and a mandate that firearms be stored safely.

Many gun rights advocates feel that these laws are misguided in that they only address the requirements for individuals who procure guns through the proper legal channels. The tragic shooting in Newtown has renewed the debate with fervor as we as a nation attempt to address how to prevent such tragedies from occurring in the future.
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It was recently reported on August 2, 2012, that Governor Deval Patrick signed new Massachusetts criminal law legislation that imposes harsh penalties for repeat violent criminal law offenders convicted in the Commonwealth. In doing so, Massachusetts now reportedly joins twenty-six additional states that have imposed strong habitual criminal offender laws. The new law takes away judicial discretion with respect to sentencing of repeat violent criminal offenders who have suffered convictions three times for certain enumerated violent crimes and makes these offenders ineligible for parole. In other words, repeat violent offenders now have to serve the full or maximum sentence with absolutely no chance for parole, probation, work release, furlough or reduction of sentence for good conduct while incarcerated.

The two previous convictions of a criminal defendant to be subject to the penalties imposed under the Massachusetts three-strikes law must have arisen out of distinct and separate incidents that must have occurred at different times. Also, these previous convictions must have carried sentences of at least three years each for the law to be applicable.

This law was sought by the father of Melissa Gosule, who was murdered by a convicted criminal who had been released early only after serving a two-year portion of a prison sentence and reportedly involved a history of twenty-seven prior felonies on his criminal record. Authorities argue that a tough three-strikes law may have avoided this and other similar, tragic losses of life.

In order to get that law passed there were certain concessions incorporated that actually decrease the mandatory minimum sentences for non-violent drug crimes for trafficking, distribution, manufacturing or possession with intent to distribute drugs such as marijuana, cocaine, heroin, morphine or opium. In some cases involving trafficking in cocaine or phenmetrazine, mandatory minimum sentences have been reduced by three years. Also, the weight requirements of certain narcotics to support a conviction for trafficking have actually increased making it more difficult for prosecutors to convict for trafficking cases.
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The Second Amendment to the Bill of Rights was ratified in 1791, and outlines the protection of the people’s right to keep and bear Arms. Over the years, the rate of gun possession and ownership has greatly increased due to increasing crime rates, expanding population, and people’s own desire to protect themselves and their property from foreign and domestic enemies. Today, not only police officers but virtually all Americans may possess a handgun for home protection. The simple fact that more people are carrying firearms has lead to the wide variety of laws and provisions outlining and policing guns. In Massachusetts, laws exist to require individuals to obtain a license before purchasing firearms and ammunition. In order to apply for a license, an applicant must first have passed a State approved firearm safety course. Even licensed firearm owners still have to be careful when carrying their weapon, as the tightly worded and strictly adhered to laws regarding guns have led to the increase in arrests for offenses such as improper storage of a gun, threatening another by displaying your gun- assault with a dangerous weapon, and other related crimes. Even with a valid license, many places restrict the carrying of firearms such as state and federal building, post offices, nightclubs, and sports stadiums.

For instance, a Quincy man was arrested June 27, 2012 after he stashed his firearm in the bushes outside a nightclub. The police arrested him for Improper Firearm Storage (Chapter 140, section 131L) and Carrying a Firearm while Intoxicated (Chapter 269, section 10H). A few months earlier in March, a Connecticut man was arrested and charged with Unlawful Discharge of a Firearm, Carrying a Firearm under the Influence, Interfering with an Officer, and Second degree breach of peace after he fired a gun in his yard. On July 8th, a Natick man was arrested and charged with driving under the influence of drugs, resisting arrest, carrying a dangerous weapon (spring-loaded knife), improper use of a vehicle and possession of a Class E substance. To evidence the extent to which gun laws are enforced, an off duty police officer was arrested and charged with murder, as well as gun and great bodily injury charges. Sheriff’s Deputy Dayle Long, a 10-year veteran, is awaiting arraignment after allegedly shooting a patron in a bar.

One of the common themes of these arrests has been the crime of Carrying a Firearm Under the Influence. In an effort to ensure safety of gun owners and the community at large, the Commonwealth makes it is a crime to carry a firearm while under the influence of drugs or alcohol under M.G.L. c. 269, § 10(h). This law applies whether you are an ordinary citizen or a police officer, and even if you are licensed to carry the weapon. This provision, however, does not prohibit a licensed individual under the influence from transporting an unloaded firearm in the locked trunk of his or her motor vehicle, unless the individual is over the legal limit of 0.08%, in which case it is against the law to operate a motor vehicle with or without the existence of a firearm. Unlike the law regarding operating under the influence (OUI), this charge does not define what constitutes being “under the influence.” Regardless, this criminal offense is a felony and a conviction is punishable by a fine of not more than $5,000 or imprisonment in the house of correction for not more than 2.5 years, or both such fine and imprisonment.
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The Law Office of Patrick J. Murphy has succeeded in convincing the Supreme Judicial Court of Massachusetts for Suffolk County to allow an interlocutory appeal to review the denial of a motion to suppress evidence seized from a defendant through an unlawful and warrantless search of a cell phone. The case originated from the Boston Municipal Court, East Boston Division. The SJC Docket No. is SJ-2012-0144.

At issue is whether the police acted improperly by searching the defendant’s cellular telephone without a search warrant after seizing it pursuant to a lawful arrest while the defendant was in custody back at the police station. Although the lower court denied the motion to suppress of the alleged cell phone evidence that the police said tied the defendant to the crime, in his decision, the judge at the motion hearing recognized that neither the Supreme Judicial Court of Massachusetts nor the Massachusetts Appeals Court have addressed the issue of a warrantless search of a cell phone after the defendant is in custody.

Unfortunately, there is conflicting case law among the federal circuits. Attorney Patrick Murphy is urging the Supreme Judicial Court of Massachusetts to uphold the protections of the Fourth Amendment and Article 14 of the Massachusetts Declaration of Rights to require that the police show deference to the warrant requirement before such a search should take place.
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Many prosecutors in Massachusetts believe that potential jurors who watch crime television programs like CSI are prone to wrongfully acquit otherwise guilty defendants when little or no scientific evidence has been presented by them in a criminal case. Massachusetts prosecutors claim that this result which has been called the “CSI effect”, can be traced to the CSI television series and other similar shows. However, there is no solid evidence that the CSI effect actually exists. The complaints about the CSI effect, usually in the form of prosecutor interviews after trial or some media stories, do not amount to solid empirical evidence on the issue. A skilled Massachusetts criminal defense attorney will take advantage of the fact that certain scientific tests were not performed on evidence and arguments and inferences can be made from the lack of scientific testing. Jury instructions will also be requested by the defense regarding the lack of investigation and testing.

Yesterday, the Massachusetts Supreme Judicial Court addressed the CSI effect by deciding that potential jurors can now be questioned by prosecutors before they are seated for trial about whether or not they would require indisputable scientific proof in order to find someone guilty of a crime. In upholding the conviction of a defendant charged with murder in a 2003 homicide case, the court rejected the defense argument that the prosecutor’s CSI-related questions prejudiced the jury by suggesting that they should ignore a lack of scientific proof. The defense claimed that such questioning results in dismissing potential jurors that would require more scientific evidence in case. The court stated that the questions, when tailored properly, can ensure that jurors on a given case are able to decide guilt or innocence without any bias. The court also stated that the questions did not favor the prosecution by selecting jurors who were likely to convict a defendant with limited or circumstantial evidence presented by the state.
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On September 7, 2011 an 82-year-old man allegedly shot and wounded a man and a woman from the second floor window of his home in Revere, Massachusetts. The elderly man was subsequently arraigned on serious criminal charges of assault with intent to murder and assault and battery with a dangerous weapon. However, despite the nature of the charges filed by police and the fact that he will be prosecuted, the judge released the man on personal recognizance (his promise to appear in court on all future dates). The incident was reported in the Boston Globe.

The facts of the case as alleged in the Revere police report suggest that the pair came to the defendant’s home earlier in an attempt to get in the home and that the defendant had called the police to report the incident. A window was allegedly broken during the incident by the woman. Presently, officials are still trying to determine if they will file charges against the pair under the circumstances. So how does the man get released just on his promise to appear back in court on such serious charges, especially where he allegedly said to the police that “he screwed up and shot them”? What does the law say about the use of deadly force under such circumstances?

Under M.G.L. c. 278 s. 8A, when someone is shot or killed by an occupant of a dwelling it is a defense that the occupant was in his home at the time of the offense and that he acted in the reasonable belief that the person(s) were about to inflict great bodily injury or death upon him or another person lawfully in the home, and that he used reasonable means to defend himself or the other person lawfully in the home. This is known as the “Castle Doctrine.” Under the law there is no duty on the occupant to retreat from such person(s) unlawfully in the dwelling. Although there are many other considerations under the bail statute in Massachusetts for a judge to consider in releasing a person accused of crime, I believe that the law of self-defense in the home was a controlling factor in the judge’s decision to release him simply on his promise to appear back in court when scheduled.
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The United States Supreme Court will decide in its upcoming term the issue of whether or not a person entering a jail has a right to be free from strip search absent additional facts or individualized reasonable suspicion justifying the search. The Supreme Court has already held that the Fourth Amendment right to be free from unreasonable searches applies to strip searches and it held that there must be a greater justification from officials for strip searches than less intrusive searches. In Safford v. Redding, the Supreme Court held that public school officials violated the Fourth Amendment rights of a young teenager while at school when they searched her for drugs and subjected her to a strip search without any facts suggesting that drugs were hidden under her clothing.

This begs the question in a case where a defendant has been arrested by police in Massachusetts: What is the current law here and does it afford greater individual protections than what the United States Supreme Court has already recognized under the Fourth Amendment? In Massachusetts, searches and seizures of individuals by the police may be conducted at the time of an arrest or at a later point when the defendant arrives a the place of detention. However, for a strip search to be constitutionally permissible, the police must have probable cause to believe that the individual possesses concealed illegal contraband on his person or under clothing that would not be discovered by a routine pat down frisk that is usually performed upon an arrest. See Commonwealth v. Thomas, 429 Mass. 403, 409 (1999). What is probable cause? Probable cause is said to have been met when the facts and circumstances within the police officers knowledge and which they had reasonably trustworthy information are sufficient to “warrant a man of reasonable caution in the belief that an offense has been or is being committed.” See Commonwealth v. Hason, 387 Mass. 169, 174 (1982)

Therefore, the law in Massachusetts requires that there be probable cause to believe that the items sought by the police are actually related to the criminal activity that they are investigating and they can be reasonably expected to be found in the place searched based upon the known facts and circumstances at the time. See Commonwealth v. Truax, 397 Mass. 174, 178 (1986). The Massachusetts standard applying the probable cause analysis to strip searches and visual body cavity searches is greater than the Supreme Court Fourth Amendment analysis, which requires only that police have “reasonable suspicion” before conducting these intrusive searches.
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Two Boston men were caught by police after a citizen tipped-off investigators. As a result of the tip, police recovered a handgun and crack cocaine when they arrested the pair on Monday, August 8, 2011 as reported in the Boston Herald. Both men pleaded not guilty to firearm and drug charges but were held on bail of $25,000-$30,000.

How will their lawyers likely handle defending them? One area that an aggressive and relentless Boston, Massachusetts criminal defense attorney must vigorously explore in this case is the nature of the tip from the informant, in this case, a citizen as indicated by the Boston Police. In the criminal law area of stop and search or frisk, the veracity, reliability and basis of knowledge prongs must be applied to the tip information. This information must be determined to justify the use of the tip by police to make a stop and/or seizure of evidence by police. If the proper protocols are not followed the lawyer may be able to suppress any evidence from the stop.

How did the tipster, a citizen, learn what he or she claimed to know? Was there any personal observation made by the tipster? What is the tipster’s veracity? In other words, was the tipster credible and worthy of belief under the circumstances with the information provided? Is the citizen providing the tip named or unnamed? Where the identity of an unnamed citizen is not revealed, that person actually is an anonymous informant and different rules apply. Anyone can call the police and make up an accusation. Where the identity of a concerned citizen in not provided to police, the citizen is an unknown informant and his or her reliability must be shown.The reliability of that citizen must be demonstrated by the prosecution an a hearing on the motion to suppress. Commonwealth v. Rojas, 403. Mass. 483, 485 (1988).
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