Cartoon from Wayne Stayskal of the the Tampa Tribune (1993)
A recent appeals court ruling has clarified the requirements for safely securing a firearm. Following a jury-waived trial in District Court, the defendant was convicted of improper storage of a firearm in violation of G. L. c. 140, § 131L(a) (statute). The appeals court reviewed the case and overturned the conviction. The result is a clearer definition of how an officer should secure his weapon while off-duty as well as the elements necessary to charge a would-be defendant.
On February 20, 2008, Hyannis police Officer Eugene Desruisseaux was dispatched to the defendant’s residence as a result of a report that the defendant was suicidal and was threatening to harm himself and others with a firearm. After speaking with the defendant, who acknowledged that he had made threats to kill himself, Officer Desruisseaux asked him if he had a firearm. The defendant replied affirmatively and told the officer that the gun was in a cooler located outside. Meanwhile, another officer found a “little Igloo cooler” in the backyard. Upon opening the cooler, the officer found a locked box in which there was a firearm.
The box, which appears to be made for the firearm by the manufacturer, is composed of a plastic-type material and measures approximately ten-by-six inches. The words “Glock ‘safe action’ pistol” are written in raised letters across the front of the box. The box is designed with a small hole, which lines up with the firearm’s trigger guard. Here, the box was found with a cable lock (“a lock mechanism with a cable” attached) threaded through the hole, thereby securing the firearm in the box as well as locking the box itself. There was no direct testimony as to how the police opened the box. The trial judge, however, found that the box and the lock were adequate.
In order to prove the offense of improper storage of a firearm, the Commonwealth must demonstrate that the defendant failed to keep the firearm “secured in a locked container” or “equipped with a tamper-resistant mechanical lock or other safety device.” G. L. c. 140, § 131L(a).(5) In this case, the court was concerned only with the first method of storing a firearm. The Commonwealth’s theory of culpability was that, even though the handgun was stored in a locked box, the box and the lock were inadequate, and, further, that the gun was not “secure” because anyone could walk away with the cooler in which the gun was hidden or with the locked box itself. The trial judge adopted the Commonwealth’s latter theory, framing the issue as “whether the gun was maintained in a locked and secured location.” The trial judge found the defendant guilty on the ground that, “although . . . the gun was locked,” it was not in a “secured location.”
The defendant contends that he was not in violation of the statute because the statute permits the storage of a firearm in “any place” as long as it is “secured in a locked container”. G. L. c. 140, § 131L(a). The appeals court agreed. In a prior case concerning the improper storage of firearms, they interpreted the word “secured” as indicating that “the container must not merely be locked, but securely locked . . . [i.e.,] maintained in [a] locked container in a way that will deter all but the most persistent from gaining access.” Commonwealth v. Parzick, 64 Mass. App. Ct. 846, 850 (2005). Here, the judge’s guilty finding was not based on any deficiency in the lock or the box. Rather, the finding was based on a failure to keep the box in a “secured location.” However, the fact that the defendant placed the securely locked box in a cooler is of no consequence. The trial judge’s implicit determination that the lock box adequately secured the firearm should have ended her inquiry; no more was required to determine that the defendant had satisfied the requirements of the statute.
Although the appeals court acknowledged the safety concerns expressed by the Commonwealth, nonetheless, neither the statute nor case law requires a gun owner who keeps a firearm “secured in a locked container” to also store that container in a secure location. The appeals court determined that the Commonwealth’s interpretation of the statute was simply too expansive. “[W]e do not ‘read into the statute a provision which the Legislature did not see fit to put there, whether the omission came from inadvertence or of set purpose.’” General Elec. Co. v. Department of Environmental Protection, 429 Mass. 798, 803 (1999), quoting from King v. Viscoloid Co., 219 Mass. 420, 425 (1914).
Furthermore, to hold the defendant to a higher standard would violate the well-settled principle that “[a] criminal statute must be ‘sufficiently clear to give notice of the prohibited conduct.’” Commonwealth v. Dunn, 43 Mass. App. Ct. 58, 59 (1997), quoting from Commonwealth v. Williams, 395 Mass. 302, 304 (1985). Applying the familiar rules of statutory construction, as well as our reasoning in Parzick, the statutory language at issue here requires only that a gun owner secure a firearm in a locked container such that “all but the most persistent [will be deterred] from gaining access.” Commonwealth v. Parzick, 64 Mass. App. Ct. at 850.
Should the Legislature choose to consider imposing stricter storage requirements, it is free to do so.