PAX Centurion - March / April 2013

Page 26 • PAX CENTURION • March/April 2013 617-989-BPPA (2772) Legal Thoughts: Thomas Drechsler, Esq. Byrne & Drechsler, L.L.P., Counsel to Members of the Boston Police Patrolmen’s Association Firearms locked containers explained P olice officers and all others who are licensed to carry or possess firearms are required to “store or keep any fire- arm… secured in a locked container or equipped with a tamper-resistant mechanical lock or other safety device….” Mass. Gen. Law c. 140 §131L. What then is a “locked container” pursu- ant to the language of that statute? Our Supreme Judicial Court recently confronted and addressed that very issue in the case of Commonwealth v. Reyes, 464 Mass. 245, decided on January 29 th of this year. The defendant was a correctional officer at the Essex County House of Correction and had a Class A License to Carry a Fire- arm. When he arrived at the House of Correction for work, he parked his motor vehicle in the employee lot and proceeded to an exterior window where employees can obtain a gun locker key for the storage of firearms during work shifts. Unfortunately all of the gun lockers were full on that day, so the officer returned to his vehicle, placed the loaded firearm in a glove box, and then locked the vehicle. The defendant was then confronted by Internal Affairs investigators who proceeded to ask his permission to search the vehicle whereupon they found the firearm in the glove box with- out a locking device. There was a factual dispute as to whether the glove box was locked or unlocked. The officer was charged with a violation of M.G.L. c. 140 §131C(a). The complaint alleged that he carried the firearm in a vehicle without the firearm being in his direct control. He was also charged with a violation of M.G.L. c. 140 §131L(a) for stor- ing or keeping his firearm without it being secured in a locked container or equipped with a tamper resistant mechanical lock or other safety device. The defendant went to trial in the Salem District Court and was convicted on both charges. On appeal the defendant raised a number of arguments including the fact that the storage statute was void for vagueness. The Supreme Judicial Court agreed with the defendant’s argu- ment that there was insufficient evidence for him to be convicted of unlawfully carrying the firearm. While the carrying statute pro- vides that it is unlawful for a person to carry a loaded firearm in a motor vehicle “unless such firearm while carried therein is under the direct control of such person,” the court held that “[t]here was no evidence presented at trial that the firearm was out of the defendant’s control while he was traveling in his motor vehicle” (emphasis added). Indeed, all of the evidence was to the contrary. The only question, then, is whether the carrying statute applies once the defendant leaves his vehicle and leaves the firearm in it. Our reading of the interrelationship between the carrying and storage statutes leads us to conclude that it does not. Once the de- fendant left his motor vehicle and the firearm in it, he became sub- ject to the storage statute because he was storing or keeping his firearm in a “place” neither on his person nor “under the control of the owner or lawfully authorized user.” Id. at 257-258. The court went on, however, to address the issue of the viola- tion of the unlawful storage statute. The defendant argued that “the statute fails to make clear what qualifies as being ‘secured in a locked container’ leaving gun owners without guidance on how to store their firearms properly and law enforcement officials without criteria for knowing when the statute has been violated.” The Court acknowledged that the term “secured in a locked con- tainer” is not really defined in the statute. Id. at 248. In interpret- ing the statute the court stated that “we discern significance in the Legislature’s use of the word ‘secured’ (rather than ‘stored’ or ‘placed’) as it relates to ‘locked container.’ That is, in order to prevent children and other unauthorized persons from gaining access to firearms and harming themselves or others, the ‘locked container’ must make the firearm ‘secure.’” Id. at 251. So then, what qualifies as a securely locked container? The court addressed the very same question on page 252 of its opinion. At a minimum, to be secure, any qualifying container must be capable of being unlocked only by means of a key, combina- tion, or other similar means… Beyond this requirement, the types of containers that might qualify are plainly varied… Statutory and regulatory references to acceptable containers include safes, weapon boxes, locked cabinets, gun cases, lock boxes, and locked trunks of vehicles… In sum, these references are sufficient to es- tablish a common understanding and practice regarding the secure storage of firearms in locked containers, against which to measure conduct proscribed under the storage statute… This is not to say that locked containers beyond those types referenced in statutes do not qualify as secure under the storage statute… In the case before us, we have two potentially qualifying locked containers, a locked motor vehicle and a locked (or unlocked) glove compart- ment in a locked motor vehicle. Id. at 252-254. After analyzing the statutory language and law from other jurisdictions the court concluded “that the Legislature did not con- sider a locked motor vehicle itself to be a secure container for the storage of firearms.” The court then moved on to the issue of the glove box stating that, “[t]his does not resolve whether a locked glove compartment might be adequate under the storage statute. We are of the view that it might, depending on the particular factual circumstances including the nature of the locking mecha- nism, whether the motor vehicle was also locked and alarmed, and ultimately whether in the circumstances it was adequate to ‘deter all but the most persistent from gaining access.’ This is a question of fact, properly decided by the fact finder at trial.” Id. at 255-256. The court went on to grant the defendant a new trial on the storage charge because the judge had not properly defined the law to the jury that was deciding the case consistent with the court’s interpre- tation of the statute. Since the evidence was conflicting on whether the glove compartment in which the firearm was found was locked or unlocked, and because the court determined that the storage of a firearm in a securely locked container within a motor vehicle would satisfy the requirements, the court held that it was a factual question for the jury as to whether this particular firearm was properly secured in a locked container under the circumstances. The case is important in many respects as now several things are very clear. First, placing a firearm inside a locked motor ve- hicle is legally insufficient to secure that firearm. Secondly, plac- ing the firearm inside of a locked container inside a locked motor vehicle might comply with the storage statute, but a question of See Firearms Containers on page 33