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FOPA lives in MA
- Thread starter Spanz
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Mesatchornug
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Dennis in MA
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LittleCalm
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There is a thread on this under the MA law subforum. I don't think this was a FOPA case. It was a case about the constitutionality of the MA non-res licensing scheme under prior law, which the SJC held was unconstitutional under Bruen b/c it was discretionary "may issue". I asked the same question in that sub-forum -- is the new NR scheme now "shall issue"? WCVB is saying this case is some big defeat for MA gun owners but it doesn't seem to rule on the current NR licensing scheme.
dcmdon
NES Member
You are absolutely correct. Although the defendant did mention that he was traveling through the commonwealth, there is no discussion about if he met the requirements for FOPA protection. (traveling THROUGH from somewhere where it is legal to possess to somewhere it legal to possess, in a locked container, etc)
The judge threw out the charges specifically because the MA licensing scheme is not consistent with Bruen. He makes no mention of FOPA.
This makes it a much MUCH bigger deal.
LittleCalm
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But I assume the case is no longer relevant because the non-res licensing scheme changed under the new law?
Rob Boudrie
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The decision was not made based on FOPA. It references crossing state lines, but not a continuous and uninterrupted journey, or the federal statute.
The defendant did not properly invoke FOPA86. Although conventional wisdom is STFU, there are times when it may (emphas, may) be appropriate. For example, if you are found to have a gun while changing a tire on a NJ highway do you say "I invoke my right not to answer questions" when the state trooper asks about the gun case in the trunk (google "single purpose container"), or do you say "I am on a continuous and uninterrupted journey that will terminate in Pennsylvania" to lay the groundwork for a FOPA86 claim? And what if you have a copy of the NJSP training memo on FOPA86 stuffed in the magazine well of your gun (I have a copy of the memo on file somehwere in my archives). Do you ask the cop to read it and enter it into evidence if you are arrested or STFU? Of course, saying anything is an advanced technique that requires specific knowledge, and the alternative of saying "Going to Hoboken to stay with my brother for a few days" could talk you into stripping yourself of that defense. YMMV.
The other shoe to this case is what previous pre-Bruen convictions can now be reversed? The court seems to have closed to using this case as a precedent for post-Bruen cases, however, the case of the law student from TX who was convicted, did time, and failed at his pro-se appeal comes to mind.
The defendant did not properly invoke FOPA86. Although conventional wisdom is STFU, there are times when it may (emphas, may) be appropriate. For example, if you are found to have a gun while changing a tire on a NJ highway do you say "I invoke my right not to answer questions" when the state trooper asks about the gun case in the trunk (google "single purpose container"), or do you say "I am on a continuous and uninterrupted journey that will terminate in Pennsylvania" to lay the groundwork for a FOPA86 claim? And what if you have a copy of the NJSP training memo on FOPA86 stuffed in the magazine well of your gun (I have a copy of the memo on file somehwere in my archives). Do you ask the cop to read it and enter it into evidence if you are arrested or STFU? Of course, saying anything is an advanced technique that requires specific knowledge, and the alternative of saying "Going to Hoboken to stay with my brother for a few days" could talk you into stripping yourself of that defense. YMMV.
The other shoe to this case is what previous pre-Bruen convictions can now be reversed? The court seems to have closed to using this case as a precedent for post-Bruen cases, however, the case of the law student from TX who was convicted, did time, and failed at his pro-se appeal comes to mind.
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Says who? And how?
Not that I don't think you want this and everyone else wants this, but it is getting harder and harder to even get a simple win, let alone pull stuff out of the air like this.
Please explain exactly how this is going to make any difference to anyone, let alone everyone, in Massachusetts, other than this one guy.
Rob Boudrie
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1). Says me, and others. But that should be ignored because there is a surplus of NES participants declaring stuff to be true based on their own opinion. So yeah, ignore my assertion as well.
2). It creates a possible (emphasis possible) defense for every person convicted under the old "may issue" system (yeah I know, it's still "may issue" but not in the view of this court decision) for possession, particularly those who ventured across state lines. The finding was the ability of the issuing authority to arbitrarily deny an LTC was a Bruen violation. It will require some analytical strain to ignore the import of this decision if one of those previous convicts uses this to re-open their case. However, I expect MA courts to be up to the challenge of any level of strain necessary to enforce "desired public policy" rather than the constitution.
3) The court seemed to slam the door shut on use of this particular defense post-Bruen, but apparently did not anticipate unintended consequences (or it would likely have ruled differently). Just speculation on my part though.
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