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Gun charge against Cape trooper dismissed

Cross X is probably working so give him some time to chime in.

Since we do not know why the charges were dismissed, and there could be any one of a hundred reasons all we can do is speculate.

What we do know is that on 2/5 the defense made a motion citing Heller and the Judge sitting that day said she was leaning towards granting the motion and took it under advisement, which in my dealings with the court IANAL is common.

What sticks out to me is the Judge who dismissed the case today was not the Judge who was sitting on 2/5 .

Let's see if the Cape Cod Times gets a copy of the decision or had a reporter in the courtroom today that will shed some light on this.
 
All those who are hollering for precedent are wrong. This doesn't set any binding precedent. Keyword there binding.

It is possible that it can be used in the future as persuasive authority depending on how the dismissal is written up, what grounds it was dismissed on and how it relates to whatever case attempts to cite it as persuasive authority in their brief.

Persuasive authority doesn't mean the judge has to listen to it, or even consider it. But it can help bolster an already strong case.

The most likely thing that'll come out of this realistically is that a law digest will show some negative treatment over the storage law and 90% of people will never know anything came out of it other than this article.
 
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It could have been dismissed by request of the prosecution. We'll have to wait and see.
What happens in one District Court usually has no bearing on any other District Court.
A SJC ruling is what counts.
 
I'll take any foot in the door I can get as far as a court ruling goes that mentions Heller.

oops wait I'm in NH.. never mind

JonJ makes a valid point though, it could have been dismissed at the request of the prosecution, without prejudice so they can re charge the trooper, or they might have seen the last Judge they appeared in front of was leaning towards granting the defense motion, and rather than letting a precedent of any kind, even at the District Court level be set, they blinked.

So I wonder with or without prejudice? Will the DA appeal the ruling? What was the basis for the dismissal?
 
This case sets no precedent. It is a District Court Judges decision to dismiss.

The Trooper hired one of the attorney's who argued the Heller case to prepare a brief to present the court in support of a motion to dismiss.

The attorney presented the brief and asked for the charge to be dismissed.

Judge Lynch agreed with the argument and dismissed the case (which was actually done by Judge O'Neill)

In order for any precedent to come from this it would have to be appealed by the DA's office.

My best guess is that DA O'Keefe's office will not appeal it as it is not a case they would want to spend the money on appealing.
 
The DA's office doesn't want to spend the money, or they know if they fail on appeal Heller gets incorporated in MA?
 
Half Cocked said:
That DA's office is not anti-gun per se, they only care about the costs.
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They "cared" about the cost because they knew the Trooper would be able to pay for the fight. This was watched from the top down and they didn't want this can of worms opened.
Let it get squashed at the DC level and leave the fight for another day.
 
JonJ said:
They "cared" about the cost because they knew the Trooper would be able to pay for the fight. This was watched from the top down and they didn't want this can of worms opened.
Let it get squashed at the DC level and leave the fight for another day.
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I think this is exactly it. They know it is a can of worms, and it is too messy to deal with. If they had a young, smart, energetic judge who was looking to make a name for himself, I bet it could go the distance. Just a matter of time.
 
BARNSTABLE — A U.S. Supreme Court ruling striking down a requirement that guns be locked or disassembled when stored has convinced a Barnstable District Court judge to dismiss a firearms charge against a Massachusetts state trooper.

State police Lt. Richard Bolduc was charged last summer with illegally storing a large-capacity firearm in the presence of a minor. Bolduc's 12-year-old son took his father's police-issued handgun from a bureau in their Sandwich home, pointed it at a 5-year-old neighbor, and pulled the trigger, according to court records.

While the gun was not loaded and no one was hurt, police said they found a full clip in the same drawer where it was stored. Bolduc's son was charged separately as a minor.

The parents of the 5-year-old neighbor could not be reached for comment before press time last night.

Earlier this month, Bolduc's attorney, Daniel O'Malley, argued before Judge Joan Lynch that the firearms charge should be dropped based on the June 26 Supreme Court ruling.

In District of Columbia v. Heller, the court declared a Washington, D.C., gun ban unconstitutional and struck down the storage requirements because, the court decided, they violated a citizen's right of self protection.

Lynch took the matter under advisement, then issued a written decision Thursday.

Judge W. James O'Neill officially declared the case dismissed in Barnstable District Court yesterday.

Bolduc declined to comment after the brief hearing.

After he was charged, Bolduc was placed on restricted duty by the state police, a status that remained unchanged as of 1 p.m. yesterday, a spokeswoman said.

Bolduc's gun was been taken away, and he was reassigned to the Middleboro barracks, where he no longer has access to a state police vehicle.

Bolduc could still face sanctions from the state police.

The state agency's firearms policy states that all service weapons must be locked away and unloaded when a trooper is off-duty.
 
Coyote33 said:
I think this is exactly it. They know it is a can of worms, and it is too messy to deal with. .
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The Barnstable DA's Office could care less about it being a "can of worms" or being "too messy to deal with"


If they had a young, smart, energetic judge who was looking to make a name for himself, I bet it could go the distance. Just a matter of time
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A judge has nothing to do with it. The Judge already made the ruling that could pave the way for an appeal.

It would be up to the DA at this point and they could care less to be honest with you.
 
Glockaholic said:
The state agency's firearms policy states that all service weapons must be locked away and unloaded when a trooper is off-duty.
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This is interesting, I thought it was a personal firearm and not a service weapon, which is odd as a service weapon outside of policy would have been a slam dunk. A dont see how the Heller verdict would even have come into play here.
 
Frankly, this is not the place nor the context in which I'd like to see this issue come up.

One: Is this a precedent? Yes, in the sense that it is a judicial ruling of law. In theory, all judges should rule the same way on the same question of law, and so this is a statement by this judge that not only should he have ruled this way, but all judges should rule the same way on the same issue. On the other hand, had the matter gone to trial to a jury and the jury returned a verdict of not guilty, that says nothing about what other juries should do in other cases.

Two: Item One begs the question of what the reach of the precedent is. In our hierarchical system, if a higher court issues a ruling on an appeal from a ruling of a lower court, the holding of the higher court is binding on the question at issue in all of the lower courts whose decisions are reviewed by the same higher court. A District Court in Massachusetts does not review the rulings of any lower courts, and all of the District Courts are hierarchically autonomous. As a result, this decision, while a legal precedent, is not a binding precedent on any other District Court (or even any other justice of the same District Court).

Three: As I pointed out once earlier, Bolduc's argument raises two issues. Issue #1 is the "incorporation" issue: Has the Second Amendment (which, by itself, applies only to the federal government) been "incorporated" into the Fourteenth Amendment, so as now also to bind the states? Issue #2 is whether, assuming the Second Amendment applies to the Commonwealth, is it offended by the "storage" provisions of the Massachusetts statute?

As to Issue #1, I'd as soon see this resolved anywhere other than in court populated by a judge or judges who come from this neck of the woods.

As to Issue #2, I think Bolduc's argument was wrong. In Heller, the Supreme Court invalidated a "storage" statute because it required storage at all times, thus precluding a "readiness state" for defense of the home. The Massachusetts statute, on the other hand, authorizes carrying of the firearm on one's person in the home, and thus permits the "readiness state" that the Supreme Court found constitutionally required. The Massachusetts statute requires secure storage only once the gun is removed from the hip. As a result, the Massachusetts statute satisfies the Heller rule and is not invalid.

Four: What of the future? Since the dismissal by judicial action is a ruling of law, the District Attorney, if so inclined, could seek to have a higher court review Justice O'Neil's ruling. For the foregoing reasons, I do not view that as a happy prospect. How likely it is to occur I cannot say.
 
Half Cocked said:
The Barnstable DA's Office could care less about it being a "can of worms" or being "too messy to deal with"




A judge has nothing to do with it. The Judge already made the ruling that could pave the way for an appeal.

It would be up to the DA at this point and they could care less to be honest with you.
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OK. In that case, I guess I would be glad to be wrong.
 
RKG said:
One: Is this a precedent? Yes, in the sense that it is a judicial ruling of law.
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District Court ruling of law...yes. Precedent setting......hardly.


As a result, this decision, while a legal precedent, is not a binding precedent on any other District Court (or even any other justice of the same District Court).
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Are you comfortable even calling it a "legal precedent"?


As to Issue #2, I think Bolduc's argument was wrong. In Heller, the Supreme Court invalidated a "storage" statute because it required storage at all times, thus precluding a "readiness state" for defense of the home. The Massachusetts statute, on the other hand, authorizes carrying of the firearm on one's person in the home, and thus permits the "readiness state" that the Supreme Court found constitutionally required. The Massachusetts statute requires secure storage only once the gun is removed from the hip. As a result, the Massachusetts statute satisfies the Heller rule and is not invalid.
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Tend to agree with you here.


Four: What of the future? Since the dismissal by judicial action is a ruling of law, the District Attorney, if so inclined, could seek to have a higher court review Justice O'Neil's ruling. For the foregoing reasons, I do not view that as a happy prospect. How likely it is to occur I cannot say.
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In the interest of accuracy. It was not Judge O'Neil who made the ruling. Judge Joan Lynch issued the written ruling on Thursday. Judge O'Neill happened to be sitting the bench on Friday and executed the dismissal of the case based upon Judge Lynch's ruling.

The history of the DA's office in Barnstable would indicate that they would not appeal the case. I am sure they are not the least bothered by the decision.
 
Half Cocked said:
The history of the DA's office in Barnstable would indicate that they would not appeal the case. I am sure they are not the least bothered by the decision.
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That may be so ( I have no basis for judgment). However, the Attorney General can take over the prosecution of any criminal case in the Commonwealth.
 
RKG said:
That may be so ( I have no basis for judgment). However, the Attorney General can take over the prosecution of any criminal case in the Commonwealth.
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Yes...correct me if I am wrong but I believe it would have to be adopted by them from the start. They cannot file an appeal on behalf of the DA's office at this point.

Since the case was dismissed (not without prejudice) the AG's cannot refile charges.
 
pbearperry said:
I don't folloow you on the not being prosecuted.The guy was charged,had to hire an attorney,and a judge later dismissed the charge.Not being prosecuted would mean none of the above happened.
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No kidding. If the "thin blue line" had been toed, wouldn't this have never come up in court in the first place?

Glockaholic said:
Bolduc could still face sanctions from the state police.

The state agency's firearms policy states that all service weapons must be locked away and unloaded when a trooper is off-duty.
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Wow.
 

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