The Massachusetts Supreme Judicial Court, in a 4 to 1 decision, ruled that the Bristol County District Attorney’s Office misinterpreted the “dangerousness statute” when proseuctor’s moved for detention against defendants charged with illegal possession of a firearm. The Supreme Judicial Court ruled against Bristol County District Attorney C. Samuel Sutter’s interpretation of Massachusetts General Laws § 58A (1), which permits the Commonwealth to move for pretrial detention if a defendant has been charged with “any other felony that by its nature involves a substantial risk that physical force against the person of another may result.”
In Commonwealth v. Young, following a § 58A hearing on October 26, 2007, a judge in the District Court, citing “firearm w/o license, FID” as predicate offenses, ordered that the defendant be detained pending trial. Young filed a petition for review of the pretrial detention order in the Superior Court. See § 58A (7). The petition was allowed and bail was set at $7,000 cash.
The Commonwealth subsequently sought relief from a single justice pursuant to G.L. c. 211, § 3, contending that possessory firearm offenses come within § 58A (1), which permits the Commonwealth to move for pretrial detention if a defendant has been charged with “any other felony that by its nature involves a substantial risk that physical force against the person of another may result.” § 58A (1) (residual clause). The single justice reserved and reported the cases to the full court. The Court agreed with the defendant and held that unlicensed possession of a firearm does not manifest a disregard for the safety and well-being of others, and therefore lacks the “menace of dangerousness” inherent in the crimes specifically included in § 58A (1). Justice Spina, writing for the majority, explained that, “[U]nlicensed possession of a firearm does not, by its nature, involve a substantial risk that physical force against another may result.”
If you have been charged with a violent crime or with illegal possession of a firearm in Massachusetts it is crucial that you have an experienced defense trial attorney from the beginning of your case. Kathleen McCarthy will make sure that all of your rights are protected from the arraignment through disposition. In order to prove illegal possession of a firearm the government must prove that an individual was in illegal possession of a working firearm. To prove possession the prosecutor must convince the jury that the defendant had actual physical or constructive possession of the alleged firearm. In order to prove constructive possession the government must prove that the defendant had the intent and ability to control the alleged firearm. They must also prove that the alleged weapon was capable of firing. If the firearm was not successfully fired on the first attempt, that is a fertile grounds to develop a successful defense.
Successful litigation of a weapons offense usually includes filing and litigation many non evidentiary and evidentiary pretrial motions. Non evidentiary motions often include a motion to inspect the firearm and for the defendant’s expert to present during any testing [DNA, fingerprinting and test firing]. In this type of offense, as with most offenses when an individual is charged with illegal contraband, an evidentiary motion to suppress physical evidence should be filed.