Serving all of Western Massachusetts including Springfield, Agawam, Westfield, Longmeadow,
Holyoke, Chicopee, Northampton, Belchertown, Granby, Deerfield and Greenfield.
Frequently Asked Questions
Commonly asked Questions and Situations
Q. I had an LTC for several years and now the police chief will only issue me an FID Card. What’s the story?
A. The story is that some type of court history is now coming up to haunt you. Prior to the passage of Chapter 180 and Chapter 284, certain convictions did not disqualify a person from an LTC, now they do. The law has been changed and the changes have been applied retroactively. Convictions for some of those offenses
may be constitutionally defective and subject to post conviction relief in addition to sealing under M.G.L. Chapter 94C.
Q. I had an LTC/FID for several years, I haven’t been in trouble in over 30 years and now the police chief denies my application for renewal of my LTC and won’t even issue me a an FID Card. Why is this happening and what can I do about it?
A. Chapter 180 reclassified the misdemeanor crime of Assault and Battery as a crime of violence and then made a conviction a disqualifying offense for firearms licensing. The changed law was applied retroactively and anyone who had an old conviction for Assault and Battery was no longer suitable to possess any type of firearms license in Massachusetts. Relief from this type of offense can be obtained by petitioning to the Firearms Licensing Review Board in addition to possible post conviction relief from the court where the conviction was imposed.
Q. What can a person do about an old misdemeanor drug conviction that now disqualifies him/her from getting an LTC?
A. At least two remedies are available. The first is to attack the old conviction in the court where it was imposed. The second is to petition the District Court to seal the record under the provisions of M.G.L. Chapter 94C.
Q. I had an out of state arrest several years ago, and in the mean time had an LTC and have never been arrested in Massachusetts, now the police chief won’t renew my LTC. What can I do about that?
A. Basically nothing, at least in Massachusetts. No relief for a conviction in another state can be obtained in Massachusetts. After all, the offense was not against the state of Massachusetts. Any post conviction relief needed to make a person was eligible for a firearms license must be obtained in the state where the conviction was imposed. When my services are needed for clients with out of state, convictions referrals and requests for assistance are made to the General Counsel of the National Rifle Association so that competent local counsel may be retained.
Q. I used to have an LTC/FID Card but lost interest in shooting for several years and let my license expire, where do I stand and what should I do?
A. The first thing you should do is immediately go to the police station in your town and apply for a renewal of your past license. Providing nothing has happened since your license last expired that would disqualify licensing, you would be subject to a civil fine of $100. You would not be subject to criminal prosecution.
Q. I had an LTC/FID Card, it expired and I was arrested and convicted of Possession of a Firearm and am now permanently disqualified from having a firearms license in Massachusetts. Is there anything you can do to help me?
A. Yes. Providing you could have renewed your license, you had a very credible affirmative defense available to you at the time your case was pending. Unfortunately, your trial attorney was unaware of the defense and failed to assert it on your behalf. However, your trial attorney’s failure to assert that defense can be grounds to vacate the conviction based on the ineffective assistance of counsel.
Q. I was convicted of Operating Under the Influence after May 29, 1994 and am now disqualified from having an LTC. Is there anything that can be done to restore my Second Amendment rights?
A. Yes, provided five years have passed since you were released from probation and completed the terms imposed by the court and have not had any further legal difficulties, you can petition to the Firearms Licensing Review Board for relief from the licensing disability the conviction has caused.
Q. I presently have an FID Card because I could no longer qualify for an LTC due to a misdemeanor conviction in state court. I recently tried to purchase a rifle/shotgun from a gun dealer and was denied. I was informed that the NICS check indicated a conviction that disqualified me and I was unable to complete the sale. I was subsequently contacted by the ATF and informed that I had a “felony” conviction and was no longer eligible to possess any
type whatsoever and now must dispose of any firearms I have in my possession. What just happened and what can I do about it?
A. If a person is prohibited from getting an LTC because of a misdemeanor conviction and can only have an FID Card, his civil rights are not considered to be fully restored. See Caron v. United States of America, 524 U.S. 308 (1998), they are considered to be only “partially restored”. The position of the ATF/federal government is one of “all or nothing”, since the Massachusetts FID Card does not allow a person to possess a handgun, their rights are not considered to be fully restored.
For example, a person who has been convicted of Operating Under the Influence, which carries a possible maximum jail sentence of between 2-2 ½ years (depending upon date of conviction) and now has an FID Card finds that his FID Card is worthless when he tries to purchase a rifle/shotgun once the seller initiates a NICS check.
The offense is considered a “Misda-Felony”. It is not a felony under state law but is considered to be a felony under federal law. A felony in Massachusetts is considered to be any crime that has a possible state prison sentence. A felony, under federal law is considered to be any crime that has a possible jail sentence of more than one year.
These are very difficult situations and there are only two possible remedies. The first is an appeal to the Firearms Licensing Board (FLRB) to restore the right to possess a firearm in Massachusetts. The FLRB can remove the “disability” which disqualifies the applicant from getting an LTC/FID Card. When the FLRB grants relief and removes the disability, the rights are considered fully restored. When rights are considered to be” fully restored”, the federal disqualification under Title 18 is no longer applicable.
The second possible remedy is to file an appeal in the court where the conviction was imposed.
Q. I have juvenile court conviction which now disqualifies me from either an LTC or FID Card, What remedies are available to me?
A. The only relieve available to you is post conviction/adjudication relief in the juvenile court where you were prosecuted. You would need to vacate the old conviction by having a motion for a new trial allowed and getting the case disposed of without a finding of delinquency/guilt. As far as firearms licensing is concerned, there is no such thing a “sealed record”. Juvenile records cannot be expunged and made to disappear. The FLRB does not have jurisdiction over juvenile felony conviction. The likelihood of obtaining a governor’s pardon to get a firearms license is beyond remote. That is privilege only available to the ultra well connected people. Like I mentioned earlier, unrestricted governor’s pardons are granted about every 30-40 years.
Q. How long does it take for a petition to the Firearms Licensing Review Board to be decided?
A. Realistically, about 8-10 months.
Q. I was recently arrested and I received a letter from the police chief revoking
my LTC/FID Card and ordering me to surrender my firearms. What should
A1. Enter a plea of “not guilty” at your first court appearance and do not try to resolve the case yourself. Do not talk to the prosecutor or any police officers. Their goal is to obtain a conviction. Your goal is to avoid a conviction and keep your license. The prosecutor or police officers are not at all concerned about your LTC/FID Card. The prosecutor and police officers, no matter how much they smile, are not your friends, understand that clearly.
A2. Retain a lawyer immediately and make your lawyer aware that you have an LTC/FID Card that you do not want to lose. If your lawyer does not understand your concerns about keeping your license, you may want to get a lawyer who does. A conviction on any misdemeanor charge whatsoever will result in a suspension/revocation of your LTC/FID Card for a minimum period of five years. Some misdemeanor convictions will permanently prohibit you from ever again having any type of firearm license in Massachusetts.
A3. Meet with the police chief and follow his/her orders to the letter. If your firearms are not seized as evidence in the crime for which you are charged, you have the right to transfer the firearms to another licensed person who can then hold them for you until your case is resolved. If you fail to ask for your firearms, the police department may elect to send them to a bonded warehouse for storage. If they are transferred to a bonded warehouse, you will probably never see them again, as storage fees will quickly accumulate and your valuable guns will be seized by
the warehouse to pay storage charges. If you really want to know more about this racket, Google up the Massachusetts federal case of Jarvis v. Village Vault, a case presently being litigated.
A4. No matter how insignificant the charge may be or how innocent you feel you are, you now have a very high stakes situation on your hands. You are now in a damage control mode and must proceed very carefully, otherwise things could go completely wrong and you could wind up permanently prohibited from ever
having LTC/FID Card in Massachusetts.
A5. If you win your case or the charges are eventually dismissed, you are entitled to reclaim your guns and your license. You just have to “play out the hand” and “roll with the punches” while the case is pending. There is no easy way.
Q. The new police chief changed the licensing restriction on my LTC from “All Lawful Purposes” to “Hunting and Target Only”, what can I do about that?
A. Put on your best suit and try to schedule a personal meeting with him/her. Be prepared to make a good impression and show a good reason why you need it. Under the new and old law, the police chief has the power to determine who is suitable for each category of licensing. If you are unhappy with the chief’s decision, you have the right to appeal the decision within 90 days to the district court in your jurisdiction.
Q. Have the recent US Supreme Court decisions in the Heller v. District of Columbia and McDonald v. City of Chicago cases had any positive impact yet for gun owners in Massachusetts?
A. Absolutely yes. Rome wasn’t built in a day and favorable court decisions do not happen overnight. Court’s look very skeptically on recognizing Second Amendment rights when they are asserted in the context of defense against
criminal charges. However, when Second Amendment claims are made in non criminal cases it is a different matter. Civil rights under the Second Amendment now are beginning to get taken seriously.
In Massachusetts, a 1976 state supreme court decision, Commonwealth v. Davis, 369 Mass 886 (1976) ruled there was no individual right to own a firearm under Article 17 of the Massachusetts Constitution. Subsequent decisions in state courts embraced that precedent and built on it. The Massachusetts case, Moyer v. Chief of Shelburne 16 Mass.App.Ct 543 (1983) gave police chiefs broad powers to determine who is a “suitable person”, while at the same time giving no guidance or standards to determine what constitutes a “suitable person” . Tremendous advantages were given to police chief’s to defend their actions in court if a person were to challenge the denial. The police chief’s decision was presumed to be correct and the chief was allowed to utilize hearsay evidence to make that determination. Evidentiary standards that would never be tolerated in any other type of court proceeding were embraced and made into law.
In 2008, the US Supreme Court ruled in Heller v, District of Columbia that the Second Amendment was an individual right guaranteed by the United States Constitution. In 2010, the US Supreme Court ruled that the rights protected by the Heller case was applicable to the states when it decided the “Chicago gun case”, McDonald v. City of Chicago, 130 S.Ct 3020 (2010).
After the McDonald case, things started top change for the better. The first significant Massachusetts case affected by the McDonald case was Simkin v. Firearms Licensing Review Board, 466 Mass. 168 (2012) which reversed a lower court’s decision to revoke Simkin’s LTC on the grounds he was an unsuitable person. The Supreme Judicial Court ruled that since there were no objective guidelines as to what is a suitable person, police chief’s denials were susceptible to a successful challenge. As a result of the Simkin case, the legislature has provided guidelines to determine suitability.
As defined by Chapter 284, a licensing authority must base their determination that a person is unsuitable based on :
(i) reliable and credible information that the applicant or licensee has exhibited or engaged in behavior that suggests that, if issued a license, the applicant or licensee may create a risk to public safety; or
(ii) existing factors that suggest that, if issued a license, the applicant or licensee may create a risk to public safety.
Time will tell how these changes work themselves out. There are a few cases pending in state and federal court that have yet to be decided. The next few years will be interesting.
Q. How does the new Massachusetts gun law differ from the old one?
A. The new law, for the most part is an improvement over the one it replaces. It has more pluses than minuses for gun owners.
A few of the pluses are:
(1) One of the most significant features of Chapter 284 is that it provides a definition of the term “suitable person”. Prior to the implementation of Chapter 284 there was no objective definition of that term. the term “suitable person” was whatever the police chief said it was. Police chiefs were given unlimited discretion to determine who was suitable to exercise the right to possess a handgun. Needless to say, this power was abused and the right to an LTC was denied or restricted to law abiding citizens.
(2) Chiefs are now required to provide written notice to applicants whose applications were denied and what those reason were.
(3) When police departments take possession of firearms in a non criminal context, (revocation of LTC, death of license holder, etc.), they are required to furnish a receipt and advise the owner that he could designate a licensed person to take possession of the firearms.
(4) The fine for possession of firearms with an expired license has been reduced from $500 to $100. LTC/FID Cards are still valid after their expiration date provided the applicant has an applicant for renewal pending.
(5) Language surrounding Mental Health issues has been clarified.
A few of the minuses are:
(1) FID Cards are now subject to a “suitable person” determination by the police chief.
(2) Substantial increases in penalties for improper storage of firearms.
(3) Private sales of firearms must now be reported to the state. A computer portal is supposed to be provided.
(4) None of the harsh requirements imposed by the previous law (Chapter 180) have been eased or removed.
A few of the “nothing” changes are:
(1) Elimination of Class B LTC.
(2) Active duty military personnel are exempted from pre licensing gun safety courses.
(3) People can now challenge restrictions placed on LTC applications. This always could be done.
(4) Applicants must now provide an affidavit at the time of the renewal of their licenses that they have not lost or had any firearms stolen during the time their license was in effect.
Yet to be determined changes are:
(1) Litigation originating from “suitable person” guidelines.
(2) Issues arising from changes in mental health language.
These are only a summary of some of the most notable aspects of the new law. A link to the new statute is provided on this website.