Sutter Brief to the SJC - A Must Read

[GOAL]

http://ma-appellatecourts.org/?brief=SJC-10024_03_Appellee_Commonwealth_Brief.pdf

I realize there is already a thread about what DA Sutter was attempting to do through holding people through a dangerousness hearing. I am not wishing to get into that debate again, but I think every gun owner should read the brief submitted to the SJC on behalf of the state. It is truly revealing about how the state feels about the very presence of firearms.

 

[Half Cocked]

It is truly revealing about how the state feels about the very presence of firearms.

It is? I must have read it differently.

 

[MetalgodZ]

It is truly revealing about how the state feels about the very presence of firearms.

It is? I must have read it differently.

Were you referring to the argument section where it states "I. POSESSORY GUN OFFENSES, BY THEIR NATURE, INVOLVE A SUBSTANTIAL RISK THAT PHYSICAL FORCE AGAINST THE PERSON OF ANOTHER MAY RESULT, AND THUS [...]?"

The arguments section and the first paragraph of the "Summary of the Argument" on p. 6 both show what he's talking about, at least I think.

 

[Half Cocked]

The Commonwealth's position is not that mese((sic)
' possession of a firearm is always, in and of itself, dangerous enough to rise to the level of a predicate offense for purposes of 5 5BA;.rather, it is that felonious, unlicensed possession of a firearm creates a substantial risk that physical force against the person of another may result, which then rises to the level of a predicate Offenses pursuant to 5 S8h. Massachusetts appellate courts have noted the dangers associated with unlicensed gun possession. Over thirty years ago, the Supreme Judicial Court cited statistics on the correlation between a weapons o€fenae and subsequent violent crime. Cornmotveal th v. Jackson, 369 Mass. 904, 912 (1976). As recently as May of last year, the Supreme Judicial Court noted the dangerous
intersection between drug distribution and the use of a firearm to further such illegal activity.


Take the time to read the whole document and the context of each statement and the related definitions as it pertains to prior court decisions.

 

[FunYun]

The plain text of G. L. c. 276, S 58A shows that
the legislature explicitly allowed dangerousness
hearings for unenumerated offenses where the offense
is a felony that by its nature involves a substantial
risk that physical force against another person may
result. Felony f i r e a n s possession does present a risk
of physical force against the person of another, the
very reason that firearms are required to be licensed.
This risk is also why firearms are dangerous
instrumentalities that incur civil liability for
insufficient care. The question is whether the degree
of r i s k presented by firearms meets the degree
necessary under S 58A to proceed to a hearing. The
degree of risk required for a preliminary
determination of whether a hearing is required is not
high - a substantial r i s k that may result is,
logically, lower both than a substantial risk that
6
. . . .. ._
will result or the word may standing alone. [pages E-
211

This is what I see as a problem.

Red is the standard felonious possession is dangerous. Blue implies that simply having a gun is dangerous.

I. POSSESSORY GUN OFFENSES, BY THEIR NATURE, INVOLVE A
SUBSTANTIAL RISK THAT PHYSICAL FORCE AGAINST THE
PERSON OF ANOTHER MAY RESULT, AND THUS ?AE PFtEEDICATE
OFFENSES FOR PRETRIAL DETENTION PURSUANT TO CHAPTER
276 SECTION 58A.

This also implies that mere possession is dangerous, not just by dangerous people as previously said. However he goes on to say that mere possession is not dangerous, but only by felonious, unlicensed persons are. Basically, he makes statements that by themselves lend to mere possession being dangerous, then recants himself.

This got my attention, from the actual law...

or any other felony that
by its nature involves a substantial risk
that physical force against the person of
another may result, including the crime of
burglary and arson whether or not a person
has been placed at risk thereof,

By this assertment, anyone making illegal entry to my home for any reason, is a threat to my life. This could be used to defend yourself at trial should you shoot an intruder.

 

[KMM696]

Take the time to read the whole document and the context of each statement and the related definitions as it pertains to prior court decisions.

Is there a good source online for MA court decisions?

Thanks

 

[doobie]

I had my pistol in my jacket pocket when I went out yesterday.... I didn't realize it until I was 15 miles from the house, so I had to turn around, go home, drop it off, then head back to work this morning... *sigh* I couldn't even just unload it, the mag, and lock it in a locked container and continue to work. If I had choosen to do that and continue to work, how am I a dangerous felon?

 

[P-14]

On page 4, this is a kick in the nuts for the 2A from MA:

The nature, or essence, of this crime is actual physical possession of a firearm, directly and readily available for use. No legitimate reason, i.e., hunting or sporting, exists for the availability of a deadly weapon in most circumstances, but for its use against another person, with harmful results. [emphasis added by P-14] Hence, I cannot consider only the offense but must look to the circumstances in order to determine if there is a substantial risk in the felony charged against....

 

[maee]

It is? I must have read it differently.

Umm... how about page 2?

That Firearms, Particularly Unlicensed
Firearms, Present a Risk to Public
Safety Has Been Noted by this Court

Anybody else note the "particularly unlicensed" as to say that all firearms are a public risk?

The Risk Determination in the Statute
Does Not Require a Certainty of Harm,
only that that Substantial Risk May
Result

In other words, be merely possessing a firearm they are assuming that you may/would blow somebody's head off.

But the main thing I do not understand about their argument is that at this point, after the suspect has been arrested, they have already seized all of his guns and ammunition and presumably got a warrant to search his house. Thus, how is he a danger anymore that he no longer possesses any firearms? Now, I think it would be nuts to let him go free on bail if he had his guns with him, but given that they are no longer in his possession, does not the very instrument that is said to make him dangerous cease to be in his possession, rendering him harmless again?? Is it the firearm or is it not the firearm? They contradict themselves!

 

[FunYun]

On page 4, this is a kick in the nuts for the 2A from MA:

The nature, or essence, of this crime is actual physical possession of a firearm, directly and readily available for use. No legitimate reason, i.e., hunting or sporting, exists for the availability of a deadly weapon in most circumstances, but for its use against another person, with harmful results. [emphasis added by P-14] Hence, I cannot consider only the offense but must look to the circumstances in order to determine if there is a substantial risk in the felony charged against....

Well, generally if you are carrying a firearm, you do so for the purpose of shooting someone, that isn't up for debate.

 

[FunYun]

Umm... how about page 2?



Anybody else note the "particularly unlicensed" as to say that all firearms are a public risk?



In other words, be merely possessing a firearm they are assuming that you may/would blow somebody's head off.

But the main thing I do not understand about their argument is that at this point, after the suspect has been arrested, they have already seized all of his guns and ammunition and presumably got a warrant to search his house. Thus, how is he a danger anymore that he no longer possesses any firearms? Now, I think it would be nuts to let him go free on bail if he had his guns with him, but given that they are no longer in his possession, does not the very instrument that is said to make him dangerous cease to be in his possession, rendering him harmless again?? Is it the firearm or is it not the firearm? They contradict themselves!

LoL, he said it is not just the firearm, but in conjunction with his status as a felon and everything else. Do you really expect anyone to believe that because you took away Mr. felons gun that he can't get another? He has already shown that he can and will illegally obtain a firearm as a felon, thats how this all started. Thats why he needs to stay in jail.

I think the main problem is he is using the term 'unlicensed' when he should use 'ineligible'.

He has shown complete disregard for MA licenses standards and MA/federal law in regards to possession of firearms. This is why he should not be given bail. Unfortunately Mr. Sutter is unable to make such a simple argument and we end up with this illegible +50pg document.

 

[P-14]

Well, generally if you are carrying a firearm, you do so for the purpose of shooting someone, that isn't up for debate.

The issue is the phrase "no legitimate purpose" and not the purpose of shooting someone.

The 2A puts no limit or restrictions on why you can carry or own. The courts in MA feel that you must have a "legitimate" reason to carry - the illegal carrying aside.

 

[Half Cocked]

Many here appear to be confusing what Mr Sutter is arguing.Many of you are mistakingly attributing Mr Sutters references to prior court decisions as statements of his.

If you are not acustomed to reading legal briefs, this document can become confusing.

Please re-read.

 

[Half Cocked]

LoL, he said it is not just the firearm, but in conjunction with his status as a felon and everything else.

Correct...this is not about the otherwise law abiding person who just does not have a LTC.

I think the main problem is he is using the term 'unlicensed' when he should use 'ineligible'.

Because he is making a legal argument. There is no legal term of "ineligible".

 

[Cato]

tele mark posted this article in another thread. It serves as a good example as to the problem with Sutter's policy. The accused in the article is being held on bail. In Sutter's county he might not be offered bail.



LEOMINSTER -- A New Hampshire man has been ordered held on $50,000 bail after state police say they caught him with weapons and ammunition in his truck on Mill Street in Leominster.

Brian Cordeiro, 31, of 24 Jock Page Road, Fitzwilliam, N.H., was arraigned in Leominster District Court on Wednesday for three counts of possessing a firearm of large capacity, carrying a dangerous weapon, carrying a firearm without a license and negligent operation of a motor vehicle.

State Police responded to Route 2 East in Leominster at around 6:20 p.m. Tuesday to investigate a report of the driver of a gray pickup allegedly harassing the occupant of another vehicle, according to a report from Trooper Timothy Foley.

The pickup exited Route 2 in Leominster and pulled into the D'Angelo parking lot at 231 Mill St.

Police confronted Cordeiro in the parking lot, according to Foley's report. Cordeiro told the troopers that he came from Fitzwilliam and was on his way to work at Home Depot in Leominster, according to the report.

Cordeiro denied being involved in a confrontation with another vehicle, according to police report.

When troopers went to look through Cordeiro's truck, he informed them that he had an unloaded handgun in the center console, they said.

Troopers found an unloaded Glock .40 caliber handgun and a double-edged knife in the center console, according to Foley's report.

They also allegedly found loaded magazines for an AR-15 rifle, and
loaded Scherer magazines for the Glock handgun. In all, there were nine loaded magazines in the vehicle, according to Foley's report.

Police placed Cordeiro under arrest after he informed them that he did not have a license for the weapons or ammunition. During booking, Cordeiro allegedly admitted to police that he became angry when he was cut off by a white SUV on Route 140 and began driving close to the vehicle.

Judge Martha Brennan ordered Cordeiro held on $50,000 bail during his arrangement Wednesday. He is due back in court for a pretrial hearing on Jan. 26.

 

[Half Cocked]

tele mark posted this article in another thread. It serves as a good example as to the problem with Sutter's policy. The accused in the article is being held on bail. In Sutter's county he might not be offered bail.

What is the guys criminal history? Sutter is using it for those with prior felony convictions or those committing a violent act.

Do you know the criminal record of the subject who is the basis for the brief?

It is lengthy.