Leaping before Looking (Traveling with guns) By Karen MacNutt
Earl and Mabel were married after Earl got back from Vietnam some thirty years ago.
She was a nurse. He was a patient at the VA hospital. It was love at first sight.
Earl's Navy training helped him get a good paying civilian job in the Southwest. She continued to work part time as a nurse because she wanted her children to go through college. No one could have been prouder when their "baby" graduated. Then things started to go bad.
When September 11 struck, Mabel was still in the Army Reserve. As part of the War on Terrorism, she was warned of possible activation because there was a need for nurses; and Earl was laid off. His boss said it was the result of the economic downturn. Age and disability, however, worked against Earl. He could not find new employment.
"Let's go back East," said Mabel.
"There are more technology jobs and we will be closer to your mother. She's not getting any younger and since your Dad died, she's been alone."
It seemed like a good idea. Mabel got a nursing job in the Greater Boston area and went east alone to set up an apartment. Earl followed about two months later when he finally had a job offer. By this time their finances were severely stretched. Earl threw all their household goods in a U-Haul truck and drove to Massachusetts. Earl had to start work the day after he arrived so there was no time to unpack. Boxes of household goods were stacked in their apartment or left in Earl's truck.
Then things really went bad. With all the chaos of moving, they missed making Earl's truck payments. One morning they opened the door to go to work but the truck was not where they had left it. The bank had hauled it away in the middle of the night. Earl was told to go to the tow lot to get his personal things out of the truck. When Earl and Mabel arrived at the lot, the police were waiting for them. While inventorying the contents of the truck, the tow company had found Mabel's handgun in the glove compartment.
Back home, Earl and Mabel always left a gun in the glove box. Why, everyone back home had a gun in the glove box of their truck. There was no question Earl and Mabel had the right to carry the gun ... back home. In the rush of moving, Earl had not even thought of the gun.
Earl and Mabel were good people. They had never broken the law. They respected police officers and thought that the police would help them.
"Do you," asked the officer, "have any other guns?" Well yes, Earl said, there were some in the things they had not yet unpacked.
They were told they had to get Massachusetts' gun licenses and, that until they got licenses, they should have their local police hold the guns. Earl thanked the officers and headed for the police station. The desk officer was a little evasive. The officer who issued gun permits was not in. The police would not be able to take Earl and Mabel's application for gun permits for several weeks. Earl could, however, turn his guns in right away. The police would go to Earl's home immediately to pick up the guns. Earl had no reason to believe that would be a problem so he took the police into his home and dug his guns out of the packing boxes while the police watched. As the officers were leaving one said, "You'll never see these again." The comment left Earl cold.
The licensing officer in the Boston area was never in but the prosecuting officer was. Earl and Mabel received notice that the following complaints were being sought against them: 1. Against Mabel, the unlawful carrying of a gun (the gun in Earl's car) which is a five year felony with a mandatory year to serve in jail: 2. Against Earl, the unlawful storage of small capacity guns (those in the house); 3. Earl was also charged. with one felony count of unlawful storage because one gun was an AR-15, a high capacity rifle. The unlawful storage of a small capacity gun was a misdemeanor but under state law it was permanent disqualification from firearms ownership because it was a crime involving a gun. The unlawful storage of a high capacity gun was a felony the conviction of which would permanently disqualify Earl from having guns nationwide.
When Massachusetts passed its current laws on the storage of guns, the excuse was that children had to be protected from unsecured guns. There were no children in Earl's and Mabel's household. The supporters of the law had also claimed that high capacity guns were the "gun of choice" of criminals. Earl and Mabel were not criminals. She kept that AR-15 so she could practice on the gun she would have to carry if she were called to active duty with the Army Reserves. Medical people, contrary to public opinion, do carry guns in the Army. They do so to protect the sick and wounded from outlaws, brigands, and warlords who would steal medical supplies.
The police report did not mention that Mabel was in the Army Reserve. It stated that Earl and Mabel were members of a militia group. The report noted, with some emphasis, that Earl's dog was named "Liberty!"
Earl and Mabel had made a number of mistakes that exposed them to more trouble than they deserved. There are lessons to be learned from their odyssey.
1. Never take guns into another state unless you know what all the laws are.
Earl thought he knew what the law in Massachusetts was because he had visited there before. Although there was a limited exemption from some state licensing provisions for new residents moving into Massachusetts, the exemption did not apply to gun laws on such things as storage. Also, the law had changed since the last time Earl was in Massachusetts. Most of the laws Earl was charged with violating had been passed during the previous three years. Under the new laws, guns had to be kept in a locked container or be secured with a trigger lock.
2. Earl and Mabel made the mistake of leaving guns not in use loaded. Although all of their guns were cased, the gun in the glove box was loaded. The AR-15 was also said to be loaded because, even though the magazine was not in the gun, state law considered a gun to be "loaded" if there were a loaded magazine with the gun.
This did not sit well with the District Attorney's office. It helped the police create the impression that Earl and Mabel were some kind of radicals. Guns not in use should be stored unloaded. Not only do they appear more innocent if there is a problem, but they are safer. If the guns had been unloaded, there might have been a federal defense to the state charges against Earl as to the gun in the truck. Because the guns were loaded, those defenses die not apply.
3. Earl made the mistake of believing that the police officers were trying to help him. If Earl had not disclosed to the first set of officers that he had other guns at home, they would never have known about the other guns. The fact then was a problem with the first gun found by the police should have alerted Earl to immediately contact his lawyer or call the NRA or state association to get the name of a sympathetic lawyer before he did anything else.
4. Earl made the mistake of not having a lawyer to deal with the police immediately. Although a lawyer was an expense Earl and Mabel thought they could not afford, in the long run hiring a lawyer immediately would have saved them time and money.
A lawyer would have explained the state law to Earl. She would have helped Earl bring himself into compliance with state law without incriminating himself with the police. In the case of Massachusetts, the guns had to have trigger locks or be locked in a case or be under the immediate control of a person licensed to possess them. These standards could have been easily met if Earl had known about them. A lawyer may also have arranged for Earl to place the guns with a dealer or other licensed person until such time as Earl acquired his state license.
This would have lessened Earl's contacts with the police and would have prevented the guns from coming into the control of the police. Some police departments do not want to give back a gun once they get hold of it. Such actions clearly violate a citizen's right to have property. Some courts, however, are not sympathetic to gun owners and the cost of recovering the gun often exceeds its value.
5. Earl's fifth mistake was talking freely with the police. A lawyer would not have allowed Earl to be alone with the police. No matter how innocent you are, no matter how smart you think you are, you should never talk to the police alone. It is not that the police will lie. They are used to dealing with criminals. They hear what they want to hear to make their case against you. They are trained to make cases against people. They have been given the mindset that their job is to catch people in violation of the law. They are anxious to do their job. To them, each conviction is a positive statistic. They are not trained to look behind the law to see the human beings they are dealing with. In all good faith, one person to a conversation can say one thing and a second person to that same conversation can hear a different thing.
Earl did not think he had made any incriminating statements but the police report oozed with them.
It noted that Earl had invited the police into his home (otherwise they would have needed a warrant). It noted that Earl had admitted that the guns had not been "secured." Without that admission, the police could not have proved how the guns had been kept in the house.
Police will often try to get you to make an incriminating statement. A favorite question asked by some officers is, "What do you think you have done wrong?" You should never directly answer such questions. The appropriate response is, "I don't know of anything, Officer, I was hoping you could tell me why I was stopped." You have a right to know what the police suspect you of doing. Other than being polite, giving your name and address or providing identification, you have no other legal or social obligation to give information to a police officer. Clearly if you know a person is in danger or if you witness a crime you have a moral obligation to disclose the information you have. You have an obligation to disperse or "move along" in certain circumstances and you have an obligation to assist an officer maintaining the peace if requested by the officer. You do not have an obligation to account for your comings and goings to an officer on the street.
Never answer questions that relate to liability or culpability. When there has been trouble, resist the impulse to talk about the event. Talk about the weather if you must. You should volunteer statements that impact on someone's immediate health or safety. "Officer, there's person trapped under the car;" or, "The building's on fire!" This is different from saying, "I just ran over that old lady and she is under my back tire;" or "I was smoking in the bathroom and set the building on fire." If someone's life is not at immediate risk, there is nothing wrong with asking for a drink of water or for time to calm down before making a statement. Better yet, say that your lawyer has told you never to make a statement unless the lawyer is present.
Some people think that because the police have not read them their Miranda warnings (the right to remain silent, etc.) that what they say to the police cannot be used against them. This is not so. The Miranda warnings only have to be read to you if you are in custody. If you are free to come and go, the police do not have to give you the warning. Thus if you go to the police station voluntarily and make statements, those statements can be used against you even if no warnings have been read. That is another reason why you should never go to the station to discuss anything that might involve a crime in which you might be a suspect unless you have your attorney. Always have an attorney with you if you think an encounter with the police might become adversarial. If you do not follow this advice and find yourself in a police station and start to feel uncomfortable with the questions being asked, tell the officers you have to go home now but that you will get back to them later. If they say, "No, we don't want you to leave." Or if they make some vague threat against you if you do leave, then ask them, ''Are you saying I am not free to leave?" They know this triggers the Miranda warning and your right to make a phone call. Your next response is, "Gee officer, [always be polite and never lose your temper], I want to help but I think I should talk to my lawyer before we go any further." At that point you may talk about the weather, Sports, or the cost of a cup of coffee but you should not talk about the events that brought you to the station. 6. Earl's sixth mistake was to invite the police into his home. Having done that, anything the police saw became fair evidence. When police enter to search on a warrant, the warrant states what they can take. When you invite the police into your home, your car, or to search your bag, they can, and often do, look at any and everything. Everything they see is fair evidence even if they had no right to make the original demand to search.
When I have a client who must surrender guns, I try to have the surrender take place in my office or some other neutral place. Never give the police permission to come into your home or search unless it relates to the immediate health or safety of another person. If that person can be produced at the door to show the police that they are not in danger, do so rather than giving the police the free run of your home. Police have a bad habit of conducting very broad searches when they get into your home or car without a warrant. If you have consented to this type of search, you may not later complain about what the police find.
If the police do not have a warrant, you do not have to let them in. If they say, "If you do not let us in we will get a warrant," you say, "That's fine, I'll wait." Then call your attorney. If it appears they are going to search without your permission, never try to physically block their search. Do say to them, "You do not have my permission to search." Regardless of what the police say, you may withdraw your consent to search at any time and you may ask them to leave. Always be nice. No matter what they do, be polite. If they continue to search after you ask them to leave, their legal right to be on your property has come to an end and they become trespassers unless they have placed you under arrest or have a search warrant. If they place you under arrest, they may only search for weapons or evidence that is within your immediate reach. Normally that would restrict them to the room you are in.
Do not expect the police, district attorneys or courts to be reasonable.
Earl and Mabel learned a bitter lesson. The Justice of the Stoughton District Court threw out the charges against Mabel because the police could not show she had ever been in possession of the guns in Massachusetts. The charges went forward against Earl. With all the incriminating statements he had innocently made, and with the permission he had given the police to search, he did not have much of a defense. The best offer the police and Norfolk County DA would make on a plea bargain was that they would dismiss the felony count on the unlawful storage of the AR-15 but Earl had to plead guilty to the unlawful storage of the other guns. No fine or jail time was asked but Earl and Mabel had to agree to give all of their guns to the police. Earl had to accept that he would never be able to get a Massachusetts' gun license. The surrender of both his and Mabel's guns was a bitter pill considering they had at all times attempted to comply with the law and had followed the advice of the police. It was something a judge probably would not have ordered, especially as to Mabel's guns. Even if Earl had been found guilty, a judge would probably have allowed Earl to sell his guns or transfer them to someone else. The problem was that, if Earl were found guilty of the felony, he would have been disqualified from owning guns any where in the United States and that was something he did not want to risk.
The law is not always just. Being of pure heart will not always protect you. As states and communities pass more complicated and harsher laws on guns, it becomes more important that you understand what the laws are before you travel with guns.
This article was reprinted from Women&Guns Nov-Dec, 2002, Copyright © 2002, Karen MacNutt