Massachusetts Legal Developments Blog

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Massachusetts Legal Developments Blog

BPD Officers' Restraint Saves a Life

Yesterday the President gave a tremendously moving speech about the officers who gave their lives defending the freedom of people to protest the police in Dallas.  Much has been said about the irony that the attack on police came in Dallas, where the police department had put serious efforts into becoming a better less-militarized, more community-oriented police force.

Today, members of the Boston Police demonstrated the kind of restraint that we should all commend.  According to the BPD Twitter post:

  • [Boston Police Officers] observed a male with a gun in his hand, pointing the firearm across the street. The male then began running toward the officers while attempting to conceal the firearm in his waistband. The officers drew their department issued firearms and gave the male lawful orders to drop the firearm and put his hands up. After taking several more steps between two parked vehicles, the male placed the firearm on the hood of the vehicle and complied with officers’ orders. The male was placed into custody without further incident.

This could have gone down differently, but becuase the police in this case didn't immediately assume the worst about the person in front of them, everyone ended the day alive.

I can add that I peronally know of a case where a young kid literally pulled out a gun and pointed it at a Boston Police Officer, and the officer talked him down, instead of pulling out his gun and ending the kid's life. 

I don't have the numbers, but we all surely hope that cases like this outnumber cases like those of Alton Sterling and Philando Castile.  The officers in this case were publicly commended by the cheif of police, as well they should have been.

  • "The officers and detectives at this incident were faced with an intense scene, but thanks to their training and quick thinking, the incident was quickly and professionally handled"

 

 

Flight In Response to a Show of Authority Cannot Justify a Stop

This is a common theme in BPD firearms cases. Here is how these cases work:

  1. Offices see some people they think might have a gun
  2. Officers run at these guys in full uniform.
  3. The ones with a gun run away.
  4. Officers chase the ones that run because the ones that run are probably the ones who have guns.

Only the law isn't on the officer's side because flight in response to show of authority cannot justify [a] stop.

So, here we go:

  • While surveilling the area, officers observed three males known to them, and as the officers approached on foot, they observed one of the males take off running while holding his waistband. The officers followed on foot and soon caught up to the male. As they were about to conduct a pat frisk, the male told the officers he had a firearm. Officers recovered a loaded silver and black Smith & Wesson .38 CTGE revolver and several rounds of additional ammunition from the male’s pants.

This happens on a daily basis in Boston.

A Lesson in How to Read a Police Report

In this article posted on the BPD twitter feed, the police allege that on July 1, 2016, the following took place:

  • At about 6:31 PM on Friday, July 1, 2016, members of the Youth Violence Strike Force were on patrol when they observed three males milling about in the area of McGreevey and Turquoise Ways. Upon seeing the approaching officers, the individuals turned away and attempted to vacate the area. In light of the apprehensive behavior, officers approached two of the individuals to better understand their actions. While talking to the individuals, officers noted that one of the individuals appeared to be extremely nervous given the fact that he was physically shaking and sweating profusely. When asked to provide his name, the individual failed to respond and refused to make eye contact with the officers. At this time, officers observed an L-shaped bulge, consistent with that of a firearm, in the area of the suspect’s right pocket. When officers attempted to frisk the suspect, the suspect pushed the officers and attempted to flee the scene. After a lengthy physical struggle, officers were able to subdue the suspect and gain possession of the firearm (see photo). While taking the suspect into custody, a large crowd began to yell, heckle and verbally disparage the officers. Back at the booking desk, the suspect asked: “Why did you rip my pants … you already got my gun.” Officers arrested [Defendant], 18, of Boston and charged him with the Unlawful Possession of a Firearm, Unlawful Possession of Ammunition and Carrying a Loaded Firearm on a Public Way.

When you read police narratives, the first thing you have to do is read between the lines to get the real story.  So when the article says that the officers "approached two of the individuals to better understand their actions," after the people they were after "attempted to [leave]," what do you think they mean?   Do you think that when these guys saw the cops coming for them and "attempt[ed] to [leave]," they slowly changed direction and wandered off into the sunset, or do you think they took off running?  Similarly, do you think that when the police say that they "approached" these guys, what they mean is that they sauntered up to them and started taking about the weather? Or do you think the police saw them take off, figured the chase was on, ran them down and tackled them?  Along those lines, does the fact that these guys "attempted" to leave -- apparently unsuccessfully -- mean anything to you?  There was a chase and a struggle at one point -- even the police agree with that.  What do you think the chances are that the police and the individuals arrested in this case would disagree about the sequence of events?

The second thing you have to do when reading a police report is try to strip out the irrelevant extravegances and boil it down to what actually happened. In this case that means leaving out the business about how the guy the police approached was "sweating profusely" (like a cartoon character caught in a lie) and how he supposedly "refused to make eye contact." Neither one of these things means anything -- they are just the kind of subjective and irrelevant details officers include to try to make the fact that they had a hunch something was up sound like less of a guess.  Without that kind of language, what you are left with is a guy who appears nervous after he has been "approached" on the street for no apparent reason, told to provide his name and submit to a pat frisk. 

Last, once you strip away the allegations that sound like they support what the officer did, but in fact add nothing, you have to see whether what you are left with means anything in the law.  Look back at what we are left with here and remember that a person is not required to identify himself, or submit to a pat-frisk, unless the police have reasonable suspision to stop him.  Add to that the fact that that the Supreme Judicial Court has held that "when officer has no basis for initiating stop, [a person]'s flight in response to show of authority cannot justify stop," and the only conclusion you can possibly reach is that the officers had no reason to stop this person, no reason to ask his name or ask to search him, and everything that came afterwards ought to be suppressed by a judge.

Oh, and by the way, this gun does not make "an L-shaped bulge . . . [in someone's] right pocket." Firearm Seized by BPD in Unlawful Search

 

BPD Makes Arrest for Failure to Consent to Unlawful Search

Who knows this guy?

Ron Funches

If you have never heard of this guy, he goes by the name of Ron Funches. He's a comedian; a self-described "300 pound black man that giggles like an asian schoolgirl," and he's hilarious!!! Check him out, you won't be disapppointed.

What if I told you this guy was packing heat?  After you watched his stand-up routine, you probably wouldn't feel very intimidated about that fact.  I mean, he may very well be licensed to do so, and if he is, he'd be well within his second amendemt rights to bear arms that Donald Trump and the NRA keep talking about.

Now, with that in mind, read the following narrative from the Boston Police Department:

  • About 2:44 AM on Saturday, July 2, 2016, officers from District B-2 (Roxbury) responded to a call for a large man carrying a gun in the area of Copeland and Warren Streets. On arrival, officers observed a large black male, heavy build, weighing approximately 300 lbs, wearing a blue baseball cap, white t-shirt, blue jeans and white sneakers. Upon seeing the individual, officers approached and informed him that they had received a report of a man with a gun. Officers further informed the individual that he matched the description of the individual they were looking for. When officers asked the suspect if they could frisk him, the suspect objected and turned away from the officers. At this point, officers observed a large bulge on the suspect’s right side. When officers attempted to frisk the suspect, a physical altercation ensued. After a lengthy struggle, officers were able to subdue the suspect and gain possession of the firearm.

Nevermind the deeply vague description which this guy "matched."  Ask yourself where the police stepped over the line in this case.  This guy was minding his own business, and for all anyone knew he had not committed any crime whatsover.  Carrying a firearm is not a crime, carrying a firearm without a license to do so is. Guess what else is illegal without a license?  Driving a car, but the police don't get to pull you over without any cause whatsoever; ask if they can "frisk" you; and then attmpt to do so over your objection when you don't consent.  That is exactly what they did in this case. The fact that he didn't have a license for the gun is irrelevant because they only found that out later, and the fact that he didn't consent to the search does not mean they were allowed to assume he was committing a crime at the time.

When this guy refused to submit to a "consensual" search, the police should have let him go on his way, since he had bothered exactly zero people, and as far as they knew, had committed exactly zero crimes.

Guys in Lounge with Pot Draw Youth Violence Strike Force Attention

According to BPD, on July 2nd, 2016, police attention was drawn to a couple guys sitting in a lounge in the communal area of their condominium.  They saw someone come out of an adjoining apartment with some marijuana, which although not legal, was not a criminal offense.  They then decided to search him, and eventually found a firearm.

Of course, the BPD would tell the story a little differently:

  • At about 9:10 PM on Saturday July 2, 2016, officers assigned to the Youth Violence Strike Force made an onsite firearm arrest in the area of 934 Parker Street in Jamaica Plain. The officers were on directed patrol inside the Bromley Heath Housing Development in response to numerous complaints from the community regarding recent gang and drug related activities in the area. When the officers observed a group loitering in a common area of one of the buildings, they approached to speak with them. As the officers were speaking to the group, a person who was known to them, Andre Raper, 23, of Jamaica Plain, walked out of an apartment with a small bag of marijuana in his hand which he quickly put in his pocket upon seeing the officers. It was later determined that the suspect was about to sell drugs to one of the men in the hallway but the presence of the officers interrupted the transaction. Officers performed a pat frisk of the suspect and discovered a one ounce bag of marijuana and several small bags packaged for sale. The suspect was then placed in custody without incident.

It's the same story, but one version makes it sound like some people minding their business in their own place of residence, without committing a crime, were bothered by the police for an exceedingly minor infraction, where the BPD version makes it sound like they just broke up Al Capone couting the money he heisted from a bank.

The fact that they later found a gun has nothing to do with their right to conduct a search and seizue at the moment when they decided to search the person holding the marijuana (which it was LATER determined he intended to sell to someone).  The point is, the police decied to serch this guy in a hallway of the place where he lived because they saw some other occupants sitting around doing nothing wrong. And what they saw this guy doing -- holding less than an ounce of marijuana -- wasn't even a crime.

The people who live in this city, and who are not privileged enough to live in the areas BPD do not consider "high crime" areas (a perfectly subjective designation) are entitled to the same rights as anyone else, including the right to be free from a search of their persons and effects in the absence of evidence of an actual crime (rather than a civil infraction of possessing marijuana).

The police had no right to do anything but write this guy a ticket and take his marijuana away. The rest of the case should be tossed.

 

Unlawful Search and Seizure in Hyde Park

According to this article posted by the Boston Police Department, on Monday, July 4, 2016 officers of the Youth Violence Strike Force located an 18 year old Roxbury resident wanted for Assault with Intent to Murder among other charges, in the company of two other individuals. After arresting the person they were looking for, the officers apparently pat frisked the other people present and discovered a loaded Smith & Wesson .22 long rifle in a backpack worn by one of the males.  The person with the gun was then arrested and charged with Unlawful Possession of a Firearm, Unlawful Possession of Ammunition, and Unlawfully Carrying a Loaded Firearm.

Notice, however, that the police had no reason whatsover (at least according to the article) to pat-frisk the other people present at the arrest, except for the fact that they happened to be there.  This would actually be lawful in some jurisdictions, such as California, under something called the "automatic companion" rule.  However, in 1995, in a case called Commonwealth v. Wing Ng, the Massachusetts Supreme Judicial Court rejected the automatic companion rule under the Massachusetts Declaration of Rights.

Without the automatic companion rule, in Massachusetts the police would have to have reason to suspect that the people found on the scene of the arrest were both armed and dangerous before they would have the right to search them. It doesn't sound like they had any reason to think that about the person on whom they found the firearm in this case, and the gun should therefore be suppressed, and the case thrown out.

 

 

What is Criminal Procedure?

 

Criminal procedure is the adjudication process used in criminal law. A criminal procedure process most often starts with a formal criminal charge. It usually ends with the conviction or acquittal of an accusation. There are rules that must be followed to protect a defendant's or suspect's rights and rules that dictate how the court will process a criminal case. These rules protect the constitutional rights of individuals to make sure all stages of the criminal procedure process are conducted fairly. Individuals accused of breaking the law are presumed innocent until proven guilty when they are going through the criminal procedure. The state prosecution must prove beyond a reasonable doubt that the suspect or defendant committed the crime.

During criminal procedures, you need to make sure your constitutional rights are protected. You should always contact an experienced criminal defense attorney to make sure your rights are not violated during this process. These protections often include the right against unreasonable searches and seizures. The Fourth Amendment to the U.S. Constitution protects your rights of privacy. This amendment limits how law enforcement can conduct a search of your house, property, or physical person. It prevents you from unreasonable searches and seizures. This does not mean that a police officer can never search your property or physical person.

A reasonable search can be performed when it is conducted according to the law. The police officer must satisfy two things to complete a search. He or she needs to establish probable cause. Probable cause happens when the evidence, facts, or incident leads the police officer to believe a crime has happened or is occurring at the time. The officer's knowledge and expertise should direct him or her in deciding a probable cause situation. He or she needs to have a search warrant that is issued by a judge. However, under certain circumstances, a search warrant may not be needed.

Another constitutional right you have during a criminal procedure is your right to an attorney. The Sixth Amendment to the U.S. Constitution ensures you have the right to an attorney when you are arrested. You have the right to a fair trial, as well. This amendment gives you the right to have your attorney present during all important and critical stages during a criminal prosecution, such as an interrogation or questioning, hearing, or arraignment. Your attorney can help you better understand your rights and develop a defense plan to determine your innocence. Criminal procedure includes all events from the arrest of a suspect to the verdict or appeal. It may include the following:

  • Search and Seizure

  • Arrest

  • Stop and Detention

  • Evidence

  • Plea Bargaining

  • Booking/Filing a Charge

  • Assigning a court-appointed attorney

  • Gathering of suspects for case

  • Identifying eyewitnesses for case

  • Trial

  • Sentencing

  • Appeal

  • Probation & Parole

When a criminal procedure is violated, it can impact your case or trial. Boston Criminal Defense Attorney, Edward Molari can provide you and your family with legal advice that will protect your constitutional rights and may help reduce your punishment. He cares about you and provides personalized legal services in every case. Contact Attorney, Edward Molari at 617-942-1532 for a free consultation.

 

Juvenile Court vs. Adult Court

 

A Wisconsin judge recently ruled that two 13-year-old girls will be tried as adults for allegedly murdering their classmate to impress Slender Man, a mythological character. The Slender Man stabbing shocked the nation and brings up the debate of whether minors should be tried as adults in court cases.

What is the difference between being tried as a juvenile versus an adult?

There are several ways the criminal justice system for adults and juveniles differ. While adults are prosecuted for committing crimes, a juvenile is prosecuted for committing delinquent acts. In the case of the “Slender Man” stabbing, the adolescent girls are currently being charged as adults since their crime is considered a more serious one. In juvenile court, a juvenile does not have a right to a jury trial as in the case of an adult trial. In a juvenile case, the trial involves a judge hearing evidence, and then, the judge decides if the minor is a delinquent or not. This process is called an adjudication hearing. A criminal defense attorney can assist you in preparing for an adjudication hearing.

When a juvenile is considered to be a delinquent, the court will decide which appropriate actions must be taken to rehabilitate the juvenile. There are serious consequences to juvenile convictions. They may include:

  • Mandatory schools for youth

  • Confinement to a juvenile detention center

  • A detainment by the juvenile court

  • Mandatory community service work

  • A permanent blemish on one’s record

  • Hefty fines to pay

  • Probation or parole

  • Home confinement/house arrest

  • Adult jail

All states have special courts to deal with minors who have been charged or accused of violating a criminal law. The proceeding is civil and not criminal. They may involve the following cases:

  • Juvenile delinquency cases: These cases involve minors who have committed crimes that would be tried in a regular criminal court if they were adults.

  • Juvenile dependency cases: These cases involve minors who are abused or neglected by their parents, guardians or caregivers. Often, a judge will have to determine if the minor should be taken from the home or hostile environment.

  • Status Offense Cases: These cases involve juvenile offenses and violations, such as skipping school, underage drinking or running away from home.

When a juvenile is accused of a crime, the process is quite different from that in an adult criminal court. Judges, prosecutors, and other court officials are allowed to take different steps when dealing with juvenile cases. In some instances, juvenile cases are moved to adult court. This is known as a "waiver." Cases involving a waiver usually involve serious offenses, such as murder or rape. Minors that frequently get into trouble with law enforcement or the criminal justice system may be tried as adults, too.

Legal Action

If your child has been accused of committing criminal or delinquent acts, the consequences can be severe and serious. Boston Criminal Defense Attorney, Edward Molari can provide your child and family with legal advice that may help reduce your child’s punishment or lessen the charge. He cares about you and provides personalized legal services in every case. Contact Attorney Edward Molari at 617-942-1532 for a free consultation.

 

Firearm Offenses in Massachusetts

Gun and Gun control laws are back in the news again. The recent Orlando massacre at a nightclub that killed 49 people is bringing the topic back into the national spotlight. Senators are demanding gun control protocols to stop violence, expand background checks for gun buyers, and ban gun sales to individuals on terror watch lists. Gun laws allow people to buy and possess guns or firearms. People have the right to bear arms as stated in the Second Amendment of the U.S. Constitution. Firearms are heavily regulated by laws in an effort to limit the sale, production, possession, and use of guns by certain citizens who should not have them.

These laws often involve personal firearms that people use to protect themselves. However, with these rights come many responsibilities and breaking them may have serious consequences. You should contact a criminal defense attorney if you are facing a firearm offense. The Commonwealth of Massachusetts has some of the strictest gun laws in the nation. Regarding the right to bear arms, the Massachusetts Constitution states:

“The people have a right to keep and to bear arms for the common defence. And as, in time of peace, armies are dangerous to liberty, they ought not to be maintained without the consent of the legislature; and the military power shall always be held in an exact subordination to the civil authority, and be governed by it.”

In the Commonwealth of Massachusetts, you cannot carry a concealed and loaded firearm in a public place. You are not permitted to carry a concealed and loaded firearm while under the influence of certain drugs, such as narcotics, marijuana, liquor, stimulant substances, or vapors of glue. One cannot carry a concealed weapon in a secure area of an airport or inside an airplane. You must have a License to Carry Firearms (LTC) or Firearms Identification Card (FID).

In Massachusetts, a license to carry a firearm does not necessary mean you have the right to possess a firearm. By law, you may have the right to own a gun, but not the right to carry one. In Massachusetts, it is forbidden to knowingly possess a firearm without being licensed.  Individuals charged with simply possessing a firearm may be the subject of "dangerousness hearings," in Massachusetts. Laws also require firearm owners to store their firearms in a locked container, tamper-resistant mechanical lock or another safety measure to ensure firearms are safely secured. The Commonwealth does not recognize another state's license to carry a concealed weapon. A person who is not from the Commonwealth can apply for a temporary license.

Many states require a certain amount of time to pass between the time one purchases a gun and the actual delivery of the firearm to a person. These are called waiting periods to reduce the chances of someone committing a hasty spur-of-the-moment crime. A background check is often mandatory before one can purchase or obtain ownership of a gun. Sometimes gun safety courses are required. Most states require all guns to be registered. Certain types of guns are usually banned such as concealed weapons, assault weapons, or unregistered and illegal guns.

Get Legal Help Today

If you have been involved in a firearm offense, the consequences you face can be severe and serious. Boston Criminal Defense Attorney, Edward Molari can provide you and your family with legal advice that may help reduce your punishment or lessen the charge. He cares about you and provides personalized legal services in every case. Contact Attorney, Edward Molari at 617-942-1532 for a free consultation.

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Thieves May Face Severe Punishment in Massachusetts

If you are a petty thief, you do not want to get caught in Massachusetts. A kleptomaniac with the compulsive urge to steal a $251 gold watch or $255 smartphone could face felony charges for his or her misdeed. The Commonwealth takes petty theft very seriously. Some critics say too seriously. Right now, anyone who steals items worth $250 or more can serve up to five years in a state prison. The penalties for stealing are harsher in Massachusetts than most states in the nation.

If you are convicted of stealing or larceny, it can be a life-changing matter. You should take it very seriously and contact a criminal defense attorney. There are many people who believe the law is too harsh for petty theft crimes. It has prompted the Senate to re-evaluate the law, as it tries to find ways to restructure the criminal justice system in the Commonwealth. Recently, the Senate passed a bill to increase the threshold from $250 to more than $1500 for certain items to constitute a felony crime.

The changes would be in line with other states. At present, the penalties are not consistent with them. Officials say the Commonwealth has not looked at this issue since 1987. It may be time for an update on this issues. The bill would help those individuals, who have changed their lives and desire to be productive citizens in society. Some say the current law punishes individuals unfairly. Their felony records keep them from obtaining employment and other privileges because of one error in judgment. The law over-punishes people, who are guilty of minor crimes.

Also, the bill lifts the felony threshold of $1500 for related crimes such as stealing and using another person's credit card, vandalizing personal property or intentionally receiving stolen goods. The Senate has passed the bill. Now it heads to the House for review. Right now, the new bill has not been fully approved and is not presently enforce, so the old law still applies. So you should not forget the harsh punishment you may face when you are caught stealing items worth over $250 in the Commonwealth of Massachusetts.

Remember that an item valued over $250 may include a $25,000 fine and jail time up to five years and items less than $250 may include a fine of $300 and jail time of one year in the Commonwealth. Furthermore, grand theft can be further categorized as first, second, or third-degree grand theft. First degree carries the harshest penalties and fines. It is difficult to erase larceny charges from your record. This may hinder you in housing, employment, and other life essentials or privileges.

Larceny or grand theft is a serious crime involving theft of property or money. The most common larceny charge is shoplifting from a business or retail establishment. Larceny may include other forms of theft, such as purse snatching, pickpocketing, cashing a check that is not yours or embezzlement (stealing money from a business).

Get Legal Help and Advice

If you have been charged with larceny or accused of stealing someone else's money or property, the consequences can be harsh and life-changing. Boston Criminal Defense Attorney, Edward Molari can provide you and your family with legal advice that may help reduce your punishment or clear your name. He cares about you and provides personalized legal services in every case.  Contact Attorney, Edward Molari at 617-942-1532 for a free consultation.

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