View Full Version : SJC calls illegal gun possession victimles (Boston Mass)

05-14-2009, 7:57 PM

In a 4-to-1 ruling, the state's highest court rejected the law enforcement strategy of Bristol District Attorney C. Samuel Sutter to cut down on gun violence by seeking pretrial detention for every person charged with illegal gun possession in his jurisdiction, which includes New Bedford.

Writing for the majority, Justice Francis X. Spina said a law known as 58A does not include illegal gun possession on the list of criminal charges that qualify for a dangerousness hearing.

The court also rejected Sutter's argument that a catch-all phrase included in the statute gave him the legal authority to demand dangerousness hearings for dozens of criminal defendants in the past several years.

"While we are cognizant that unlicensed possessors of firearms may use firearms unlawfully, unlicensed possession of a firearm itself is a regulatory crime," Spina wrote. "It is passive and victimless."

Spina added: "That a person possesses a firearm without a valid license does not itself pose a substantial risk that physical force against another may result. Rather, it is the unlawful use of a firearm that involves a substantial risk that physical force against another may result."

In an interview, Sutter said that eight Bristol County defendants could now be freed under the SJC ruling and that one woman will seek her freedom today in Fall River District Court. Sutter said he will be there to argue against her release.

Sutter said he was disappointed by the decision, but vowed to seek high cash bail, $25,000, to counteract the loss of the dangerousness hearing.

He faulted the SJC majority's thinking. "They are not as closely connected to the reality of urban, violent firearms crimes as I am," said Sutter, whose office reports that shots fired reports have dropped by 25 percent in Taunton, 34 percent in Fall River, and nearly 40 percent in New Bedford since 2006, when he was elected. "That's a dramatic decline."

The case went to the high court after a lower court refused Sutter's request to hold several suspects on gun charges without bail for 90 days. Since taking office, Sutter has sought 269 gun detention cases and prevailed in 163 of them.

Five of the court's seven justices heard the case. In a stinging, lone dissent, Justice Judith M. Cowin ridiculed the court's conclusions, saying the ruling ignores the reality that illegal guns are at the heart of crime in the state.

"When a handgun or automatic weapon is involved, the purpose of the firearm is to injure or kill; there is no other reason for that weapon's existence," Cowin wrote. "We have recognized in various contexts that firearms are, by nature and design, dangerous instrumentalities."Continued...

The majority, Cowin wrote, "reduced to its minimum, that is simply a reiteration of the tired slogan that 'guns don't kill people, people do.' We know this to be a dangerous oversimplification. The fact is that people kill people with guns, and in a substantial number of cases those guns are unlicensed."

Speaking for the Massachusetts District Attorneys Association, Berkshire County's top prosecutor, David Capeless, said the SJC majority "does not address the reality" of 21st century life or the state's laws.

"All of the DAs are concerned about the proliferation of illegal firearms," Capeless said. "I applaud Sam Sutter for taking a preventive approach and not waiting until somebody shoots at somebody."

Mayor Scott Lang of New Bedford said he supports Sutter's approach and any new way of cracking down on gun violence in his city. Lang said he believes the approach has helped reduce crime. "The dangerousness hearings have been extremely helpful," he said.

"I don't see this as a victory for people walking around with illegal guns," Lang said. "A gun is an instrumentality that brings complete disruption into a city street. We need to make sure we protect the public from these individuals."

The law dates to the 1990s, when lawmakers sought a way to cut down on domestic violence by giving prosecutors and judges the power to hold someone who had a minor criminal record, but was considered a threat to a spouse or significant other.

Jim Wallace of the Gun Owners Action League and Murray A. Kohn, a lawyer for the state Committee on Public Counsel Services, separately endorsed the court's majority view. Both said that having an unlicensed firearm should not, by itself, lead to pretrial imprisonment.

"To lock people up without a trial is not the way to address problems of violence," Kohn said. "It's not the way we do it in this country."

Wallace said he wants to work with Sutter to fine-tune laws so they can target criminals and not a gun owner with a minor licensing problem. "We will make it clear that the people [prosecutors] are going after are the bad people . . . so my members don't get nervous," he said.

In practical terms, the high court in this case was acting to end confusion among judges. In Bristol County, a Superior Court judge refused to apply the law to Jermaine Rodrigues while a Taunton District Court judge concluded it applied to Thomas Young. Both men had been charged with illegal gun possession, among other charges. Rodrigues is free awaiting trial, while Young has been convicted of illegal firearm possession and is serving an 18-month sentence.

Willie J. Davis, Young's lawyer, said the majority made the right choice. "He won, but he didn't win anything," Davis said.

John Ellement can be reached at ellement@globe.com.
Copyright 2009 Globe Newspaper Company.