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  • Attorney Neil Tassel

Rare but not surprising win for Massachusetts gun owners

This week the Massachusetts Supreme Judicial Court issued a decision that should please anyone who wants to keep government theft to a minimum. In Commonwealth v. Fleury, SJC-13148 (March 31, 2022), the Court overturned a Superior Court order of forfeiture for 12 firearms which had been improperly stored and ordered them returned to the defendant's designee. The guns, which had been seized during the execution of a search warrant, were the subject of a motion for return of property. The government claimed that M.G.L. 276, § 3(b) which governs disposition of property seized in the execution of search warrants provides that weapons that "have been found to have been kept, concealed or used unlawfully or for an unlawful purpose shall be forfeited to the commonwealth".


At the heart of the decision is the question of whether the term "kept" referred to being improperly stored or rather those weapons which are possessed unlawfully. Analysis of the statutory history of the improper storage law and the search warrant forfeiture provision resulted in the conclusion that the legislature did not intend to strip a lawful owner who improperly stored a gun of the ownership of the weapon. One could imagine the SJC taking a contrary finding given the general tendency of the judiciary to take a stance contrary to gun ownership whenever remotely feasible.


In my practice I have frequently been able to retrieve firearms for lawful owners, even when they have been convicted of improper storage, or even use, of the weapon when there is a warrantless seizure. The distinction is that when a search warrant is not involved there is no provision that allows forfeiture. This fact was evidently not argued to the Court in Fleury and I suspect would have aided the analysis. After retrieving the weapon I am able to return it to the owner if they remain licensed to possess it or have it disposed of through a firearm dealer for the owner's compensation. It is easy to understand the general principle that misuse of an item does not strip the owner of the property interest in the item. This often frustrates the government or even the judge who has to order return. Oddly, the same consternation never exists when the drunk driver is returned their automobile despite the widespread carnage created.


Please feel free to reach out to me if you have any questions concerning Commonwealth v. Fleury or any other firearm related concern.




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