On Wednesday, November 16, 2011 the Massachusetts House of Representatives took up the Habitual Offender bill. This last minute push for the legislation came just as the legislature was scheduled to break from formal sessions until after the New Year.
As our members were alerted, last week the senate took up this legislation and eventually passed their version of the bill that contained 50 sections. The final bill contained some amendments supported by GOAL to give lawful gun owners some reasonable protections. Once passed by the senate the bill was moved to the House for consideration. On Tuesday, November 15th the House Committee on Ways and Means released a very much stripped down version, this version only three sections long. Rather than the Senate bill that was more of an omnibus crime bill, the House bill was a clear “three strikes bill” that did not contain any of the proposals that could be problematic to gun owners.
The House version now H.3818, made it very clear that for any criminal violation to be considered for the three strikes rule that the defendant must have already been previously twice convicted and have had to have served two previous prison sentences. The latter part is very important as it is not simply a past conviction, but that time must have been served in each instance. This is also a good step in the right direction as GOAL first put such language in our Civil Rights and Public Safety Act as a higher bar for statutory disqualifier for gun permits.
It is good to know that the legislature has listened to some concerns and has responded. In short, the House version does not contain any threats to lawful gun owners and is absent of the wire tapping language that concerned us in the senate version. The bill will now likely go to a conference committee where the House and Senate will work through the differences in their versions. At the writing of this update the amended version of H.3818 was not yet available online, but it should be shortly.
Many thanks to the House legislators that assisted in this effort, especially Rep. George Peterson and Rep. Brad Hill.
S.2054 is now H.3811. This bill is now MUCH shorter and void of any language of concern to us. We will continue to monitor it's progress as it is expected to be voted upon by the house today.
Look for a full update on this legislation soon.
Two weeks prior to the holiday break of the Massachusetts Legislature, the senate took on a major bill dealing with repeat/habitual offenders. GOAL had been able to look at and give opinions on certain pieces of the legislation, but had not had access to the entire language until Monday evening on November 7, 2011. Once announcing their intentions to debate the bill, the senate put forth rules that any amendments must be submitted by noon that Wednesday. That gave GOAL less than 48 hours to read the entire bill, over 50 sections long, draft amendments and find sponsors for them.
After having read the bill, now S.2054, “An Act Relative to Habitual Offenders, Sentencing and Improving Law Enforcement Tools.”, GOAL delivered a letter to the senators outlining four concerns that we wished to have addressed.
The first concern was a section that would have created a new crime of “assault and battery upon another by means of discharging a firearm…” The major problem with this proposed new section is that there are virtually no protections in Massachusetts law for citizens who find themselves in a defensive situation that calls for the use of force outside of the home. For several years GOAL has been concerned about this lack of protection for lawful citizens. In fact GOAL has filed a bill to address the issue (S.661 An Act Relative to the Common Defense.) GOAL asked that the language of the S.661 be filed as an amendment to S.2054. Senator Richard Moore filed the language on GOAL’s behalf, but it was eventually rejected.
Another very troubling section dealt with creating the new crime of “assault upon another by means of a firearm…” The term “assault” is a legally problematic broad term for which there is no clear definition in Chapter 265, the law that this section intends to amend. One of the problems that lawful gun owners have faced in Massachusetts is the abuse of this term. In several instances lawful gun owners have had their licenses revoked because another person simply saw a firearm on them and reported to the police they were in fear. While it is bad enough that one would lose their civil rights over another person’s irrational fear, this proposed section could put lawful gun owners at risk of arrest and prosecution.
GOAL originally requested that the section be stricken, but there was not enough support to do that. As a result, Senator Bruce Tarr filed an amendment to add some protections for lawful gun owners by including “intentionally brandishing”. While not a perfect solution, the amendment did pass.
Clerk #25 Clarifying Assault with a Firearm Messrs. Tarr, Hedlund, Knapik and Ross moved to amend the bill (Senate, No. 2054), by striking in Section 36, proposed section 15E(a) of chapter 269 of the General Laws, and replacing it with the following subsection:- "(a) Whoever commits an assault upon another by intentionally brandishing a firearm, large capacity weapon, rifle, shotgun, sawed-off shotgun, machine gun or assault weapon, as defined in section 121 of chapter 140, shall be punished by imprisonment in the state prison for not more than 10 years or by imprisonment in the house of correction for not more than 2½ years or by a fine of not more than $5,000, or by both such fine and imprisonment." The next proposed section that gave us cause for concern was the creation of another new crime of possessing any type of gun after being convicted of a crime punishable by imprisonment for a term exceeding 2½ years. The major problem with the language was that there were no protections in it for those who have had their rights restored. Senator Tarr filed an amendment on behalf of GOAL to add protective language to that section. The amendment was adopted.
Clerk #27 Closing Felon in Possession Loophole Messrs. Tarr, Hedlund, Knapik and Ross moved to amend the bill (Senate, No. 2054) by inserting, in line 423, after the word "Whoever", the following words:- "unless lawfully permitted under statute to posses or control". The last concern expressed in the letter to the senate was in regards to newly proposed wire tapping language. Section 42 of the bill would have added to the list of “designated offenses” that could qualify for wire tapping. GOAL’s major concern was that included in the new designated offenses were the following: any offense, proof of which requires the illegal sale, purchase or transfer of a firearm, sawed-off shotgun, machine gun, assault weapon or large capacity weapon as an element thereof, and any license violation under sections 121 to 131P, inclusive, of chapter 140. Senator Tarr attempted to offer some protection language in amendment #53, but the amendment was eventually rejected.
Clerk #53 Ensuring Integrity in Wireless Investigations Mr. Tarr moves to amend the bill (Senate, No. 2054) in Section 43, by inserting in line 461, after the figure "140", the following words:- provided, however that any investigation targeting a designated offense as provided for in part (iii) shall result from a knowing license violation." In all there were over 70 amendments filed to the bill and over 40 of them were rejected. With the help of key senators, GOAL was successful in having two crucial amendments passed. By no means was the outcome a perfect solution, but the very quick action on the bill demonstrates how fast an advocacy organization must be prepared to act.
GOAL would like to thank all of the senators who helped address our concerns especially Senator Bruce Tarr and Senator Richard Moore. The legislation must still go through the House before being considered by the Governor. GOAL will certainly be working with House members on the remaining issues in the bill.
11/10/11 Update. GOAL Success. Self Defense Amendments Attached to Habitual Offender Legislation.
This week GOAL was made aware of new legislation at the State House which would have created more opportunity for the discrimination and legal persecution of law abiding gun owners. Senate Bill S.2054 "An Act Relative to Habitual Offenders", originally submitted by State Senator Cynthia Stone-Creem would have created even more issues for any citizen who found themselves in a situation that would have required self preservation through the use of a firearm, and would have opened up even more ways for a person carrying a firearm to be charged with assault.
The GOAL Amendments, added today by Senators Tarr, Hedlund, Knapik and Moore will add protections for law abiding citizens of the commonwealth, especially those who carry concealed.
Click here to see the full text of the bill, check amendment #s 37 and 60 by clicking on the "amendments" tab
Habitual Offender Bill May Expose Citizens to Severe Penalties
Possession of pepper spray without a permit could subject citizens to wire tapping!
On Monday, November 7, 2011 the senate accepted a committee report on a new version of the “Habitual Offender bill.” The new version of the bill S.2054, “An Act Relative to Habitual Offenders, Sentencing and Improving Law Enforcement Tools” is supposedly intended to provide prosecutors and law enforcement with more stringent tools in punishing repeat offenders. Gun Owners Action League (GOAL) had been aware that this bill was being worked on in the senate and had been given pieces of it to look at. The bill as a whole was not available to us until late Monday. As with any legislation that proposes to after gun criminals the devil is in the details.
“Once again lawful gun owners find themselves in a position where we have to oppose a supposed crime bill because of the potential legal exposure to lawful gun owners,” said Jim Wallace Executive Director of GOAL. “Until the legislature as a whole recognize the disastrous affects that Massachusetts gun laws have on lawful citizens, and fixes those problems, it is difficult for us to support such measures. Wire tapping for pepper spray violations … really?”
GOAL has several major concerns with S.2054 that are outlined in the following letter to the senate.
We are urging our members to contact their state senator and urge them to amend the bill addressing GOAL’s concerns. GOAL will be working to provide the senate with amendments. Lawful gun owners should not be in the line of fire when it comes to crime legislation. Find your state senator here.
After reviewing the proposed legislation S.2054“An Act Relative to Habitual Offenders, Sentencing and Improving Law Enforcement Tools” I am writing to you to express some great concerns with the legislation that may drastically affect lawful gun owners. While we hope the intent of the legislation is to punish true criminals, the legislature must acknowledge that the poorly written and complex gun laws of the Commonwealth more often than not make criminals out of lawful citizens.
Our initial major concerns are as follows:
Section 15D of the bill creates a new crime of “assault and battery upon another by means of discharging a firearm…” The major problem with this section is that there are virtually no protections in Massachusetts law for citizens who find themselves in a defensive situation that calls for the use of force. For several years GOAL has been concerned about this lack of protection for lawful citizens. This attempt to create a new crime with severe penalties has only heightened that concern. If the senate wishes to move forward with Section 15D, we would request that some basic protections are included to protect lawful citizens. This could be accomplished by adding the following language to the bill.
SECTION ##. Chapter 278: Section 8A. Killing or injuring a person defense of self or others;
Section 8A. It shall be an act of lawful defense if a person, who is an occupant of a dwelling or in any place that they have a right to be, used deadly force, or less than deadly force, if he or she acted in the reasonable belief that an assailant was about to inflict great bodily injury or death upon themselves or upon another person who also had a right to be in the location. There shall be no duty on a person to retreat from any place that they have a right to be. An act of lawful defense as outlined in this section shall not be cause for arrest or prosecution. Further, an act of lawful defense under this section shall not be cause for the revocation of a license issued under sections, 122, 123, 129B or 131 of Chapter 140.
SECTION ##. Chapter 231: Section 85U. Death or injury to assailants; liability of defender
Section 85U. No person who has committed an act of lawful defense as outlined in section 8A of chapter 278 shall be held liable in an action for damages for death or injuries to an assailant.
Section 15E would create another new crime of “assault upon another by means of a firearm…”
The term “assault” is a legally problematic broad term for which there is no clear definition in Chapter 265. One of the problems that lawful gun owners have faced in Massachusetts is the abuse of this term. In several instances lawful gun owners have had their licenses revoked because another person simply saw a firearm on them and reported to the police they were in fear. While it is bad enough that one would lose their civil rights over another person’s irrational fear, this proposed section could put lawful gun owners at risk of arrest and prosecution.
“Assault” (Black’s Law Dictionary): …any intentional display of force such as would give the victim reason to fear immediate bodily harm, constitutes an assault.
Section 40 proposes to create another new crime of possessing any type of gun after being convicted of a crime punishable by imprisonment for a term exceeding 2½ years. There are no protections in this proposed section for citizens who have had their rights restored. For instance, under Chapter 140, Section 129B a citizen who has been convicted of a nonviolent felony can, after five years after the end of sentence, apply and receive a Firearms Identification Card. This section needs to be amended to recognize such situations.
Chapter 140, Section 129B(1)(i)(e): …however, that except for the commission of a violent crime or a crime involving the trafficking of controlled substances, if the applicant has been so convicted or adjudicated or released from confinement, probation or parole supervision for such conviction or adjudication, whichever is last occurring, not less than five years immediately preceding such application, such applicant's right or ability to possess a non-large capacity rifle or shotgun shall be deemed restored in the commonwealth with respect to such conviction or adjudication and such conviction or adjudication shall not disqualify such applicant for a firearm identification card;
Section 42 is of great concern to lawful gun owners as it provides very broad opportunities for the government to tap generally any means of communication for the most minor offenses. Most concerning is that there is no mention of “conviction” in the new definition of “designated offense,” it simply states “violation.” Does this mean if a government agency, not a court of law, determines that a citizen is in violation it can begin to track our communications?
With the sections of law that are inclusive in such violations the following are a sample that could expose citizens:
The section also brings into play “proof of which requires illegal sale, purchase or transfer”. Once again there is no mention of conviction. This is yet another section of Massachusetts gun laws that are far too easy to find oneself in inadvertent violation of.
For instance, many lawful gun owners are not aware of the requirement to file an FA-10 transfer form with the state if they have acquired a long gun out of state (all handguns must be transferred through a licensed retailer). What if a lawfully licensed handgun owner purchases a handgun that is approved by the Executive Office of Public Safety and Security (EOPS), but is not approved by the Attorney General’s handgun regulations. Could that be considered an unlawful transfer?
Just this year an unsigned letter from EOPS was distributed to law enforcement agencies outlining how law enforcement officers were not allowed to be purchasing so-called assault weapons and large capacity feeding devices. This letter has potentially placed thousands of law enforcement officers in violation of a law they thought they were exempt from. A violation of which carries a ten year sentence. Now this language could subject them to wire tapping.
Without addressing these genuine concerns of lawful gun owners GOAL has no choice but to oppose the bill as written.
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GOAL is the Official State Association of the National Rifle Association