June 2012 Archives

Man Licensed to Carry Firearm Charged with Improper Storage After He Hides it In Playground

gun in waistband.jpgThe Boston Municipal Court arraigned a licensed gun owner yesterday on charges of improperly storing his firearm. According to the Herald.com, John T. Murrett of Quincy tried to take his loaded Ruger LC9 pistol into Club Royale in downtown Boston by tucking into his pants at the small of his back. Club security found it when they frisked him at the door and told him that he could not bring it inside. Undeterred, he left and "placed his firearm in some bushes in a nearby playground." He then returned to the Royale where the motto is: "From the moment you walk in until you leave, we want your night to be the best of your life." For Murrett, however, a legal nightmare began shortly after he left. His pistol was not where he left it.

Murrett certainly exercised some bad judgment that night, not the least of which involved the things he said and did not say. It appears that instead of asking the bouncers about bringing a firearm into the club, he just let them find it. Perhaps he thought that they wouldn't. First bad move. Then he hid it in a playground of all places. Not that there are a lot of kids out during the clubbing hours, but it sure sounds bad in the paper.

Then came the things that he did say. After losing the gun, he went back to the club and asked if anyone had turned it in. First of all, what are the chances that someone who found a gun would bring it to a nearby nightclub? Then, he practically made the prosecution's case by admitting to the bouncers that he lost it. It gets worse. When the police arrived he told them that he takes the sidearm with him wherever he goes, even to a wedding he had been to earlier that day. Perhaps he should have had a nuptial exception to his constant carry rule.

Murrett then told the police that it was fully loaded with 7 rounds in the magazine and one in the chamber. That takes a little extra effort. He had to load the magazine, chamber one round, remove the magazine, and then replace the chambered round by adding one more to the magazine. All that for a wedding? To make matters worse, he also told the police that he had "a couple of alcoholic drinks." The police arrested him for Improper Firearm Storage (Chapter 140, section 131L) and Carrying a Firearm while Intoxicated (Chapter 269, section 10H).

Perhaps Murret's bad judgment regarding his statements may be explained by the panic he felt when he found out that the gun was missing. In fact, one may say he did the right thing as far as the public is concerned by immediately sounding the alarm regarding a firearm on the loose. He did not, however, do himself any favors with his self-incriminating chatter.

Even licensed carrying of a firearm in Massachusetts is fraught with peril. Not just because it is a lethal weapon, but because you can get yourself into trouble like this very easily. The sight of a gun for many people provokes thoughts of illegality. Just flashing it may bring a charge of threats or assault with a dangerous weapon. In fact, the article implies that club security called 911 when they initially found Murret's gun. Even with a valid license, there are many places that you may not carry a firearm. You may not carry a firearm into state buildings, federal buildings (including the post office) or sports stadiums, just to name a few. Stringent licensing application processes are designed to ensure that people with bad judgment do not carry firearms. Like it or not, as far as firearms are concerned, this is not Oklahoma.

So what is Murett's present legal situation? First off, it is very unlikely that he will have a license to carry a firearm again anytime soon. I assume it was issued by the Quincy Police Department, and that this incident has prompted them to revoke it. The Herald.com unfortunately mentioned his place of employment in the article. So whether or not his gun was required at his job he may have some employment jeopardy.

Secondly, as the story points out, the charge of carrying while intoxicating did not appear in the court papers. I expect that the very capable clerk magistrate of the Boston Municipal court determined that probable cause did not exist with respect to that charge. That charge requires proof that he was under the influence at the time that he carried a loaded firearm. Not only did the police not say that he was under the influence, even if they had, they could not say that he was in that condition when he last carried the weapon. By the way, this charge would have a higher maximum penalty of 2 ½ years in jail compared to 1 year for improper storage.

Even though the charge of carrying a loaded firearm while under the influence was weeded out in this case, aspects of that statute are worth mentioning. Unlike driving on the public roadways, a holder of a license to carrying a firearm is not presumed to consent to a breath test. So how would the prosecution prove "under the influence?" With the usual observations of glassy eyes and unsteady feet? With field sobriety tests? Those "tests" are supposedly designed to determine one's ability to operate a motor vehicle safely, not carry a firearm. With this charge there is no standard by which to judge if someone is too drunk to carry. The short-hand definition of "under the influence" in an OUI case is having consumed enough alcohol to negatively impact one's ability to operate a motor vehicle safely. There is no such definition that I know of with regard to carrying a firearm. It is not illegal to drink and then drive unless you drink too much to be safe. Under what standard should one's ability to safely carry a firearm be judged? Would the standard be higher, or lower than that used for operating a motor vehicle? Intoxicated carrying charges only applies to individuals who are licensed to carry. Oddly enough,if you illegally carry a firearm without a license while under the influence, this statute does not apply. Perhaps the legislature reasoned that the heavy penalties involved with unlicensed carrying were sufficient. One more thing, this statute only applies if the firearm is loaded. So before you get loaded, be sure your pistol isn't.

The pending charge of improper storage will not be taken lightly, especially since the gun has gone missing. Leaving one on your bed stand is one thing, but under a bush in a Boston playground is another. Hence, I expect he has competent criminal defense counsel who will explore all avenues. There should be a full examination of the possibility of suppressing Murrett's statements to the police.

Interestingly, this statute makes it a crime to store a firearm "in any place unless such weapon is secured in a locked container or equipped with a tamper resistant lock or safety devise." Murrett's firearm actually has an internal lock. Did Murrett lock it? I say "interestingly" only because the statute is vague as to where you may leave a locked gun. Under your bed? An unlocked office drawer? Your glove compartment? On a beach towel while you take a swim? Unfortunately for Murrett, no judge or jury will likely acquit on the grounds that he locked it before he stashed it under the bush.

The statute also establishes that a conviction will be "evidence of wanton or reckless conduct in any criminal or civil proceeding if a person under the age of 18 . . . acquired access to [the] weapon . . . and such access results in the personal injury to or death of any person." Therefore, even after the nightmare of this case is over, Murrett will not be out of the woods. Until the gun is found, there is a possibility that he could be sued, or even charged with a crime as a result of another person's use of it.

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Reports Related to Investigation of Wrong-Way Trooper Raise Suspicions that May be Unfounded

wrong way.jpgA Massachusetts State Police Trooper is under investigation for allegedly driving the wrong way on Memorial Drive in Cambridge back in April. The June 20, 2012 story in Enterprisenews.com reveals that the state police are not only investigating the trooper but are investigating the initial investigation. The obvious implication is that they are checking to see if he received preferential treatment by the troopers that responded to the scene. No explanation is given for the six-week time lapse between the incident and the investigation.

Apparently, it all started when the state police received "reports" of someone driving the wrong way, and when they responded they found the off-duty trooper "next to his car in a nearby parking lot." No further information is provided, but the article goes on with a little character assassination. It mentions that while he was an Easton Police officer, an "allegation of statutory rape surfaced." The story eventually says that there was no evidence and that even the alleged victim denied everything. That's fine, but, as we say: you cannot "unring" a bell.

To add insult to injury, the article notes: "Team Five Investigates obtained a copy of [his] driving record," and found that he had surchargeable accidents in 2000 and 2005 and received two speeding tickets in 2006. This man is 29 years old, so he was approximately 17 when he had the first accident and 22 at the time of the second. Adding two tickets to that hardly makes him a highway menace. These side notes prompted comments such as this one by liverpoolabbie: "It appears to be a trooper who is too frequently in the wrong place at the wrong time. Time to can him." A false allegation of rape, two car accidents and a couple of traffic tickets! This comment is precisely why an experienced criminal defense attorney will fight to keep this kind of information away from juries.

Predictably, a majority of the other comments following the article jump to similar conclusions that there must have been some wrongdoing on the trooper's part. The obvious suspicion is drunk driving. All of that is understandable. But, it may or may not be supported by evidence. And that is what ultimately matters.

First of all, simply driving the wrong way does not necessarily mean that a driver is intoxicated. Even more so for a trooper. I think of all the unusual motoring moves that I have seen executed by on-duty state police officers and wonder if perhaps this is what got things started. Was there any plausible reason for the wrong-way drive? Did he do it by making a quick U-turn to get to a side street without doing a longer legal turn around? How far did he go in the wrong direction? How fast? Were there cars coming the other way? What were the traffic conditions? What time of day was it?

Perhaps most importantly, did the people who reported the incident come forward to be identified as witness? If not, there will be no proof that he actually drove the wrong way. On top of that, there may be doubts as to whether he was actually driving. Did the witnesses report that they saw the off-duty trooper behind the wheel or did they just describe his car? After all, the article says he was "next to his car" when his fellow troopers arrived. Was there anyone else with him that could have been driving? Did he admit to driving or did he say nothing?

Perhaps the trooper did what criminal defense attorneys rarely see - he said nothing and did nothing to provide the other troopers with evidence against him. As an officer himself he would know that he had no obligation to incriminate himself by answering questions, performing field sobriety tests, or taking a portable breath test.

There may or may not have been favoritism. An experienced criminal defense attorney knows that when all is said and done we will likely never know, and what really matters to an accused is the actual admissible evidence. If there is no witness to say that he drove the wrong way, questionable evidence of whether he was driving at all, and no evidence of alcohol, then there is no case of any kind.

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