Advisory letter re: "Simkin v. Commonwealth" & "Commonwealth v. Couture"

[Coyote33]

Yeah, but again, it is NOT that you are unlicensed, just because you do not have it with you.

 

[Len-2A Training]

I've got a sick snowblower carb to deal with, so I'm not going to look it up, but IIRC you MUST possess your LTC anytime you have possession of firearms/ammo/etc. Possession without it (left it at home) I BELIEVE is indeed actionable (illegal) but I'll let someone else find the cite.

IIRC merely walking down a street doesn't require you produce a DL. However I KNOW (heard it on the scanner) that my PD harassed a TV reporter numerous times and demanded his DL even though when they found him he was standing in a parking lot and not driving anything. They ran him thru 3 times that day, ckg for warrants, priors, etc. IMNSHO that is pure harassment (he had initially produced a press pass that ID'd who he worked for and press passes are issued by MSP), but done all the time. My PD demands DLs even if they are responding to any call at a person's home, and they run them thru all the databases . . . it is SOP here.

So, the law is one thing but when Johnny Law decides it is something else, you don't get much support for complaining (unless you want the long slog thru the court system suing the department later).

 

[Jason Flare]

Yeah, but again, it is NOT that you are unlicensed, just because you do not have it with you.

I've got a sick snowblower carb to deal with, so I'm not going to look it up, but IIRC you MUST possess your LTC anytime you have possession of firearms/ammo/etc. Possession without it (left it at home) I BELIEVE is indeed actionable (illegal) but I'll let someone else find the cite.

IIRC merely walking down a street doesn't require you produce a DL. However I KNOW (heard it on the scanner) that my PD harassed a TV reporter numerous times and demanded his DL even though when they found him he was standing in a parking lot and not driving anything. They ran him thru 3 times that day, ckg for warrants, priors, etc. IMNSHO that is pure harassment (he had initially produced a press pass that ID'd who he worked for and press passes are issued by MSP), but done all the time. My PD demands DLs even if they are responding to any call at a person's home, and they run them thru all the databases . . . it is SOP here.

So, the law is one thing but when Johnny Law decides it is something else, you don't get much support for complaining (unless you want the long slog thru the court system suing the department later).

This might be it: https://malegislature.gov/Laws/GeneralLaws/PartI/TitleXX/Chapter140/Section129C

Any person who, while not being within the limits of his own property or residence, or such person whose property or residence is under lawful search, and who is not exempt under this section, shall on demand of a police officer or other law enforcement officer, exhibit his license to carry firearms, or his firearm identification card or receipt for fee paid for such card, or, after January first, nineteen hundred and seventy, exhibit a valid hunting license issued to him which shall bear the number officially inscribed of such license to carry or card if any. Upon failure to do so such person may be required to surrender to such officer said firearm, rifle or shotgun which shall be taken into custody as under the provisions of section one hundred and twenty-nine D, except that such firearm, rifle or shotgun shall be returned forthwith upon presentation within thirty days of said license to carry firearms, firearm identification card or receipt for fee paid for such card or hunting license as hereinbefore described. Any person subject to the conditions of this paragraph may, even though no firearm, rifle or shotgun was surrendered, be required to produce within thirty days said license to carry firearms, firearm identification card or receipt for fee paid for such card, or said hunting license, failing which the conditions of section one hundred and twenty-nine D will apply. Nothing in this section shall prevent any person from being prosecuted for any violation of this chapter.

It looks like, when you show your LTC you get your gun back, forthwith.

 

[Quiet]

1) Do you remember when it used to be that you had to always have part of the pistol exposed? That was so you could not be hiding anything. Times have changed, I guess.

I forget where I read it, but someone astutely pointed out that "back in the day" everyone walked around with their gun on their hip, only bad guys with evil intent concealed their guns.

 

[Len-2A Training]

I forget where I read it, but someone astutely pointed out that "back in the day" everyone walked around with their gun on their hip, only bad guys with evil intent concealed their guns.

Before my time with firearms (mid-1970s) and I never saw any non-LE open carry handguns in MA, only long guns. However, as a kid I had a neighbor who would carry his .22 target pistol (unloaded) in his hand and walk down the street with it to the sandpit he shot in. Nobody blinked.

 

[Glockster30]

This might be it: https://malegislature.gov/Laws/GeneralLaws/PartI/TitleXX/Chapter140/Section129C

It looks like, when you show your LTC you get your gun back, forthwith.

This appears to be another of the limitless conundrums with MA gun laws. On the one hand, it appears if you do not have your LTC/FID with you, the LEO confiscates your firearm until you produce your LTC/FID. On the other hand, the very last sentence states:

"Nothing in this section shall prevent any person from being prosecuted for any violation of this chapter."

So the question is, if the LEO confiscates your firearm because you do not have your LTC/FID on you, you can also be charged with violating the chapter; yes/no?

 

[drgrant]

From what I have read they can only demand you produce your LTC if they believe a crime has been committed and simply carrying a gun is not a crime, (or enough of a crime!)

(See quote from Rob Boudrie.)

In the matter of producing a driver's license, the cop is supposed to have stopped you for a violation and therefore you have to produce your DL.

Whether its right or not is irrelevant on the ground, you have fun with that, telling them "no". The cops that actually understand the law will not ask or they'll do it via social engineering.

 

[Len-2A Training]

Whether its right or not is irrelevant on the ground, you have fun with that, telling them "no". The cops that actually understand the law will not ask or they'll do it via social engineering.

My point exactly!

 

[Garys]

In the matter of producing a driver's license, the cop is supposed to have stopped you for a violation and therefore you have to produce your DL.

Chapter 90, Section 25. No word about investigating a violation or crime. Note that operators are required to sign their name when requested. Since this section falls in with the parts of the law involving licensing, my guess is that it's intent is to allow officers to verify that the person producing the license is the actual holder of the said license. This law hasn't changed since I took driver's ed in 1970, so it's not new. In another section operators are required to produce their DL and registration upon request if they are involved in a collision.

What LenS tells us his town's PD does, is illegal. A person can not be compelled to produce ID except under limited circumstances in MA. Someone who wanted to make a point and had the money to hire a good lawyer could bend the town and the officers over for doing this. My guess is that an organization such as the ACLU would take this case up. Not that I'm a big fan of the ACLU.

Section 25. Any person who, while operating or in charge of a motor vehicle, shall refuse, when requested by a police officer, to give his name and address or the name and address of the owner of such motor vehicle, or who shall give a false name or address, or who shall refuse or neglect to stop when signalled to stop by any police officer who is in uniform or who displays his badge conspicuously on the outside of his outer coat or garment, or who refuses, on demand of such officer, to produce his license to operate such vehicle or his certificate of registration, or to permit such officer to take the license or certificate in hand for the purpose of examination, or who refuses, on demand of such officer, to sign his name in the presence of such officer, and any person who on the demand of an officer of the police or other officer mentioned in section twenty-nine or authorized by the registrar, without a reasonable excuse fails to deliver his license to operate motor vehicles or the certificate of registration of any motor vehicle operated or owned by him or the number plates furnished by the registrar for said motor vehicle, or who refuses or neglects to produce his license when requested by a court or trial justice, shall be punished by a fine of one hundred dollars.

 

[Jason Flare]

Much of this thread reminds me of this video.

It's Portland, ME, and it's been posted here previously:

 

[Coyote33]

I forget where I read it, but someone astutely pointed out that "back in the day" everyone walked around with their gun on their hip, only bad guys with evil intent concealed their guns.

This is what I remember, and as far as I remember, my father said it was the law.

Before my time with firearms (mid-1970s) and I never saw any non-LE open carry handguns in MA, only long guns. However, as a kid I had a neighbor who would carry his .22 target pistol (unloaded) in his hand and walk down the street with it to the sandpit he shot in. Nobody blinked.

We did this as kids, but with rifles.

This appears to be another of the limitless conundrums with MA gun laws. On the one hand, it appears if you do not have your LTC/FID with you, the LEO confiscates your firearm until you produce your LTC/FID. On the other hand, the very last sentence states:

"Nothing in this section shall prevent any person from being prosecuted for any violation of this chapter."

So the question is, if the LEO confiscates your firearm because you do not have your LTC/FID on you, you can also be charged with violating the chapter; yes/no?

Whether its right or not is irrelevant on the ground, you have fun with that, telling them "no". The cops that actually understand the law will not ask or they'll do it via social engineering.

My point exactly!

Yeah, but in the REAL world, I really can't say I've EVER heard of this actually happening.



P.S. Len: I just fixed the inlaws phone (bad cord, and mother in law in hospital for open heart surgery), PLUS I just opened up my snowblower to find the drive key (connects drive gear to axle) is gone. Need to get that and install it before the snow hits.

 

[Chevy 2 65]

Much of this thread reminds me of this video.

It's Portland, ME, and it's been posted here previously:

wonder how that would play out in Mass? any volunteers?

 

[Jason Flare]

wonder how that would play out in Mass? any volunteers?

I'm not one to push too many buttons but I've been known to push a few.

With that said, I'd like to have the decision in Commonwealth vs. Couture handy and ask what crime the po po suspects me of in the event they demand to see my LTC.

BTW I did have a handgun in police possession when I passed it through the the x-ray machine at MA DPS in Boston. They wouldn't store it for me and they gave it back and DID NOT ask or demand to see an LTC.

Also, I have ha

 

[Garys]

I'm not one to push too many buttons but I've been known to push a few.

With that said, I'd like to have the decision in Commonwealth vs. Couture handy and ask what crime the po po suspects me of in the event they demand to see my LTC.

BTW I did have a handgun in police possession when I passed it through the the x-ray machine at MA DPS in Boston. They wouldn't store it for me and they gave it back and DID NOT ask or demand to see an LTC.

Also, I have ha

They don't need to suspect you of a crime to demand to see your LTC. Just as they don't need to stop you for a MV violation to demand your DL.

Just because they allowed you into a building and didn't demand to see your LTC, doesn't mean that they can't next time.

As far as Maine goes, it's a very pro open carry state, except for Portland. A friend of mine is from ME and lived in Portland for a long time. He's also a long time gun owner. We've discussed Portland and he informed me that the antics of the PD there resulted in the legislature strengthening the open carry laws. Portland likes to hire the police and fire chiefs from outside of the state. At one time the city manager had an affinity for former LA area chiefs. One of those guys wasn't clued in and caused a lot of short term grief for gun owners in the city. At least that's what I remember my friend telling me, maybe one of the ME members has a better recollection.

 

[Jason Flare]

They don't need to suspect you of a crime to demand to see your LTC. .

How do you explain Commonwealth vs. Couture?

 

[Rob Boudrie]

BTW I did have a handgun in police possession when I passed it through the the x-ray machine at MA DPS in Boston. They wouldn't store it for me and they gave it back and DID NOT ask or demand to see an LTC.

Were you denied entry or sent in with the gun?

 

[Jason Flare]

Were you denied entry or sent in with the gun?

Denied entry with the gun. (They wouldn't store it for me.) I had a hearing to attend on an elevator issue. Mrs. Flare took the gun and stayed out of the building for the day.

Cop suggested I bring the gun and lock it in our car, but our car was out of town.

 

[Garys]

Mimi

How do you explain Commonwealth vs. Couture?

I didn't read anything in that which would suggest that they need to stop you for investigation of a crime before they can demand your license. Before they can search a vehicle, yes. If an officer sees you with a firearm he can not proceed on the assumption that you are committing a crime. He can however require you to produce your license. If you can't do that, you can be arrested.

At least that's how I read it.

 

[Jason Flare]

Mimi

I didn't read anything in that which would suggest that they need to stop you for investigation of a crime before they can demand your license. Before they can search a vehicle, yes. If an officer sees you with a firearm he can not proceed on the assumption that you are committing a crime. He can however require you to produce your license. If you can't do that, you can be arrested.

At least that's how I read it.

You might be right. All I have is this from Comm. vs. Couture:

. A police officer's knowledge that an individual is carrying a handgun, in and of itself, does not furnish probable cause to believe that the individual is illegally carrying that gun.

So, I would be tempted to ask, "What crime do you suspect me of?" And mention that in Comm vs. Couture The judges wrote that, A police officer's knowledge that an individual is carrying a handgun, in and of itself, does not furnish probable cause to believe that the individual is illegally carrying that gun.

 

[Garys]

You might be right. All I have is this from Comm. vs. Couture:

A police officer's knowledge that an individual is carrying a handgun, in and of itself, does not furnish probable cause to believe that the individual is illegally carrying that gun.

So, I would be tempted to ask, "What crime do you suspect me of?" And mention that in Comm vs. Couture The judges wrote that, A police officer's knowledge that an individual is carrying a handgun, in and of itself, does not furnish probable cause to believe that the individual is illegally carrying that gun.

I think that you are reading that backwards. If you are carrying a firearm, while the officer does not have probable cause to believe you are committing a crime, he can still demand that you produce your license. If you can't then he can arrest you for that.

You can ask him that question, but he is not required to answer it. You still have to produce your license. If you can't, see my answer above.

Can you fight that and win? Maybe, but as the saying goes, "You might be the rap, but you won't beat the ride."

 

[Jason Flare]

I think that you are reading that backwards. If you are carrying a firearm, while the officer does not have probable cause to believe you are committing a crime, he can still demand that you produce your license. If you can't then he can arrest you for that.

You can ask him that question, but he is not required to answer it. You still have to produce your license. If you can't, see my answer above.

Can you fight that and win? Maybe, but as the saying goes, "You might be the rap, but you won't beat the ride."

That's what I'm looking for. (And don't get me wrong, I expect it to exist!) I'm looking for the law that says I have to produce an LTC on demand.

ETA: I found a thread that deals with this here:

http://www.northeastshooters.com/vbulletin/threads/33800-Cop-demands-LTC

I would be tempted to ask a cop a few questions and quote Comm vs. Couture before handing over LTC and staying out of jail.

My guess, and IANAL, is that demanding an LTC is in fact a search.

 

[GPP]

That's what I'm looking for. (And don't get me wrong, I expect it to exist!) I'm looking for the law that says I have to produce an LTC on demand.

ETA: I found a thread that deals with this here:

http://www.northeastshooters.com/vbulletin/threads/33800-Cop-demands-LTC

I would be tempted to ask a cop a few questions and quote Comm vs. Couture before handing over LTC and staying out of jail.

My guess, and IANAL, is that demanding an LTC is in fact a search.

You can ask all the questions you want, most LE will have ZERO knowledge of Couture ( Randy Couture maybe).
Its an officer safety thing. You dont have to be suspected of a crime or any of that stuff.
Demanding an LTC is the same as demanding a DL.

 

[crazymjb]

That's what I'm looking for. (And don't get me wrong, I expect it to exist!) I'm looking for the law that says I have to produce an LTC on demand.

ETA: I found a thread that deals with this here:

http://www.northeastshooters.com/vbulletin/threads/33800-Cop-demands-LTC

I would be tempted to ask a cop a few questions and quote Comm vs. Couture before handing over LTC and staying out of jail.

My guess, and IANAL, is that demanding an LTC is in fact a search.

Pretty sure it is not a search. Obviously a cop can demand a DL at a traffic stop... they can't neccessarily demand to search your car.

Although after reading Couture it does seem that it may contradict the requirement to present an LTC if asked... assuming you are asked only on the basis your gun is seen.

Mike



Sent from my cell phone with a tiny keyboard and large thumbs...

 

[Quiet]

Hypothetical: You produce your license and then do not allow the officer to possess it to check if for validity, or you produce your license, hand it over and said "See Ya!" as you aren't being detained.

I would bet dollars to doughnuts (if there is still any differential there) that the court(s) in MA would write the additional language into the law saying the purpose of the requirement to produce the license is to identify you and therefore the officer has a reasonable amount of time to do just that before allowing you to leave. I think I just read something to that effect regarding driver's licenses actually in the text of the law.

My take on all of this after reading this thread (which of course makes me a MA Firearms Law and Constitutional Scholar on the issue) is if a cop asks you for your license, give it up. I don't think it's a battle worth fighting and losing. It's a condition of your license and without more case law on your side stemming from something else it'll be interpreted in favor of the cop.

If you wanna martyr yourself and lose your license and go to jail over something there are probably better things to fight for. Like an adjustable stock.

 

[Jason Flare]

Although after reading Couture it does seem that it may contradict the requirement to present an LTC if asked... assuming you are asked only on the basis your gun is seen.

Mike

I think that is exactly what is going on. The law says you have to produce an LTC and case law indicates otherwise.

 

[Jason Flare]

If you wanna martyr yourself and lose your license and go to jail over something there are probably better things to fight for. Like an adjustable stock.

All cops think I'm honest and most friends would be amazed to find out I have guns.

I wouldn't make a very good test case because I would be amazed if a cop asked for my LTC.

 

[BakerBingo]

On a few occasions I've had people offer up their LTC's with their driver's license on traffic stops. If you're carrying concealed lawfully I couldn't care less. Granted my response is "have a nice day" and immediately let them go. I imagine that would be the response you would normally get.

I've never encountered a situation in my career where I had to demand an LTC. Twice I've encountered people who told me they were carrying in non-traffic stop situations. Both times they produced it for me without asking after informing me they had an firearm on their person. Once a woman was in a car accident and was being transported to the hospital. She told me she was carrying a loaded P238 in her purse. Since it wouldn't be under her direct control I seized it and it was secured in a property locker at the station and she picked it up the next day. The other incident was a domestic at a bar. When I first got there the male involved immediately told me he had a loaded handgun in his back left pocket. I seized it until it was determined nothing criminal had occurred. I returned it to him and he went on his way.

Both situations went fine, no dogs were shot, if you're going to question how it was handled, look at the alternatives. The woman gets an MRI and a nurse discovers the handgun while putting the woman's property in a bag. Campus police get called, maybe there's a lockdown and it gets blown out of proportion? Or the guy doesn't disclose that he's carrying and its discovered during a pat frisk. Then the fact that he's had a few beers gets brought into question.

Running a license plate or driver's license will not notify the officer that the person has an LTC. The software we used at my previous agency would notify me only if the person was a resident of the town and had a license issued through our agency. At my current agency the only way for me to know is if the dispatcher specifically searches those parameters and that doesn't happen on a day to day basis. Most of them don't even know how to.

 

[Coyote33]

That's what I'm looking for. (And don't get me wrong, I expect it to exist!) I'm looking for the law that says I have to produce an LTC on demand.

ETA: I found a thread that deals with this here:

http://www.northeastshooters.com/vbulletin/threads/33800-Cop-demands-LTC

I would be tempted to ask a cop a few questions and quote Comm vs. Couture before handing over LTC and staying out of jail.

My guess, and IANAL, is that demanding an LTC is in fact a search.

This thread was from 2008, before Couture was out (I think).

You can ask all the questions you want, most LE will have ZERO knowledge of Couture ( Randy Couture maybe).
Its an officer safety thing. You dont have to be suspected of a crime or any of that stuff.
Demanding an LTC is the same as demanding a DL.

That is why I started this thread, to see if there was a way of making them aware.

Hypothetical: You produce your license and then do not allow the officer to possess it to check if for validity, or you produce your license, hand it over and said "See Ya!" as you aren't being detained. ...

What do you mean? Hold it against the glass of your rolled down 1/2 inch car window?

... I would bet dollars to doughnuts (if there is still any differential there) ...

Funny timing on use of this word.

I think that is exactly what is going on. The law says you have to produce an LTC and case law indicates otherwise.

Interesting. Any of our legal experts able to weigh in on this?

 

[Quiet]

What do you mean? Hold it against the glass of your rolled down 1/2 inch car window?

Sure, or show it through the plastic window in a wallet, or hold it up to be seen but not surrender it.

It would certainly be a provocative action, likely to cause affront to to be taken by the officer. Nobody (cop or not) likes to be challenged in silly ways.
But that's what happens every time someone exercises their rights in the face of authority.
"Am I being detained" causes the same reaction in every video I've watched (except once).

Funny timing on use of this word.

Heh Unintentional, but I'll split the credit with you for your keen observation! ;-)

 

[Len-2A Training]

All cops think I'm honest and most friends would be amazed to find out I have guns.

I wouldn't make a very good test case because I would be amazed if a cop asked for my LTC.

Like you, in 39 yrs I've never been asked to show it except in gun shops. I've "clunked" guns (while being fingerprinted for FL renewal) with other officers, been deep in numerous police stations, been in courthouses (had to lock it up, I think one courthouse out of a dozen may have asked to see the LTC), state office buildings, etc.

On a few occasions I've had people offer up their LTC's with their driver's license on traffic stops. If you're carrying concealed lawfully I couldn't care less. Granted my response is "have a nice day" and immediately let them go. I imagine that would be the response you would normally get.

I've never encountered a situation in my career where I had to demand an LTC. Twice I've encountered people who told me they were carrying in non-traffic stop situations. Both times they produced it for me without asking after informing me they had an firearm on their person. Once a woman was in a car accident and was being transported to the hospital. She told me she was carrying a loaded P238 in her purse. Since it wouldn't be under her direct control I seized it and it was secured in a property locker at the station and she picked it up the next day. The other incident was a domestic at a bar. When I first got there the male involved immediately told me he had a loaded handgun in his back left pocket. I seized it until it was determined nothing criminal had occurred. I returned it to him and he went on his way.

Both situations went fine, no dogs were shot, if you're going to question how it was handled, look at the alternatives. The woman gets an MRI and a nurse discovers the handgun while putting the woman's property in a bag. Campus police get called, maybe there's a lockdown and it gets blown out of proportion? Or the guy doesn't disclose that he's carrying and its discovered during a pat frisk. Then the fact that he's had a few beers gets brought into question.

Running a license plate or driver's license will not notify the officer that the person has an LTC. The software we used at my previous agency would notify me only if the person was a resident of the town and had a license issued through our agency. At my current agency the only way for me to know is if the dispatcher specifically searches those parameters and that doesn't happen on a day to day basis. Most of them don't even know how to.

CJISweb shows the info instantly. Many, but not all, PDs have it installed in the MDTs at this point in time.

Sure, or show it through the plastic window in a wallet, or hold it up to be seen but not surrender it.

It would certainly be a provocative action, likely to cause affront to to be taken by the officer. Nobody (cop or not) likes to be challenged in silly ways.
But that's what happens every time someone exercises their rights in the face of authority.
"Am I being detained" causes the same reaction in every video I've watched (except once).

Some people like to create conflict to push their rights. IMNSHO wise people choose their fights carefully. The difference between flashing your LTC and handing it to an officer when requested (even if s/he does not DEMAND it) IMNSHO isn't a battle worth fighting. YMMV

When I worked as a PO, those that were polite to me got the same treatment back to them. Those that got arrogant got a dose of the same. Guess who has more power to make your life pleasant or miserable "on the ground"?