Improper Storage Concerns for the Civilian LTC Holder

It probably comes as no surprise that if you’re reading a blog on my site, much of my practice involves representing individuals charged with violating the Commonwealth’s myriad firearm laws. I want to briefly discuss some of my concerns about situations that repeatedly arise when people are charged with improper storage of a firearm.

The statute, M.G.L. c. 140, § 131L(a) provides:

“It shall be unlawful to store or keep any firearm... in any place unless such weapon is secured in a locked container or equipped with a tamper-resistant mechanical lock or other safety device, properly engaged so as to render such weapon inoperable by any person other than the owner or other lawfully authorized user.”

The elements of the offense of improper storage of a firearm, in violation of M.G.L. Ch. 140, § 131L, are as follows:

1. That the item in question was a firearm;

2. That the defendant knowingly kept or stored that firearm; and

3. That the firearm was unsecured.

Mass. Jury Instruction 7.630 (2021).

A weapon shall “not be deemed stored or kept if carried by or under the control of the owner or other lawfully authorized user.” M.G.L. Ch. 140, § 131L(a).  See Instruction 7.630, Note 1.  “Carried” requires actual physical possession of the firearm, and “under the control” requires that a person be sufficiently near the firearm to immediately prevent its unauthorized use. Commonwealth v. Reyes, 464 Mass. 245, 258 n.19 (2013), citing Commonwealth v. Patterson, 79 Mass. App. Ct. 316, 319 (2011).

The situation I repeatedly see involves a gun owner accidentally dropping or forgetting a firearm in a public setting. I’ve seen many variations on this theme: leaving a gun on a fender while loading a car and having it fall onto the roadway, leaving a gun in a bathroom stall or restaurant booth, or having a holster fail and letting the firearm drop unnoticed. In my opinion, none of these incidents warrant criminal charges. These are not situations in which a person “stored” a firearm intentionally or knowingly, as the statute requires. Another variation arises when an individual has a firearm in close proximity—such as in their home or vehicle—and due to a medical emergency or police action, they become separated from the weapon. Again, in my opinion, these individuals have not “stored” the firearm because it was under their immediate control until an outside influence intervened. The related issue is whether the arguably careless handling of a firearm provides grounds for a suitability suspension of the LTC. It does, and the loss of the license may be impossible to overturn.

Oddly, the nature of the firearm, the circumstances, and a procedural quirk in Massachusetts law often dictate what happens next once police investigate the situation. Improper storage may be either a misdemeanor or a felony, depending on the type of firearm involved and whether it was stored in a place accessible to children. If the gun is not “large capacity” (i.e., having a magazine capacity of more than ten rounds), improper storage is typically a misdemeanor punishable by up to 1½ years in the house of correction. However, if the gun is of large capacity or if it is stored where children have access, the penalty increases to a mandatory minimum of 1½ years in state prison (and thus a felony). If both aggravating factors exist—large capacity and child access—the mandatory minimum becomes four years in state prison.

The procedural quirk I mentioned is found in M.G.L. Ch. 218, § 35A, which provides:

If a complaint is received by a district court... the person against whom such complaint is made, if not under arrest for the offense for which the complaint is made, shall— in the case of a complaint for a misdemeanor or a complaint for a felony received from a law enforcement officer who so requests— and may, in the discretion of any said officers in the case of a complaint for a felony which is not received from a law enforcement officer, be given an opportunity to be heard personally or by counsel in opposition to the issuance of any process based on such complaint unless there is an imminent threat of bodily injury, of the commission of a crime, or of flight from the Commonwealth by the person against whom such complaint is made…

This statute means that if a person is not under arrest for another offense, a misdemeanor complaint must ordinarily go to a Clerk-Magistrate’s hearing to determine whether probable cause exists to issue a complaint. Felony violations do not require such a hearing, though the police may request one.

Recently, a judge dismissed an improper storage charge against a man arrested for operating under the influence of alcohol. After he was removed from his car and taken into custody, an unloaded gun was found in the vehicle’s console. It had been next to him until police ordered him from the car and therefore, I argued, was not “stored” by him. The police did not file the improper storage charge until the following day. The judge dismissed it because the defendant had not been afforded a Clerk’s hearing, where I could have argued that storage never occurred. If the police pursue a new complaint, I intend to make that argument again.

One of the more frustrating aspects of these cases is that outcomes often seem to hinge on whether the person involved is a law enforcement officer. Over the years, I’ve seen numerous incidents where police officers have left guns unattended—in courthouse bathrooms, recycling bins, on the street, on dressers later taken to school by a child, or loose around the house and subsequently stolen. You get the point. All of these cases were treated the same way: swept under the proverbial rug, with the explanation that the officer made an “error of judgment” and received “retraining.” No criminal charges nor loss of license.

The point is this: if you are a civilian LTC holder, you must be especially careful. Unlike law enforcement, you are far more likely to be charged with a crime and lose your license for the same conduct. Do not hesitate to reach out to me if you lose or misplace a firearm, and are dealing with this situation.