< Back to front page Text size – +

SJC calls illegal gun possession 'victimless crime'

E-mail|Link|Comments () May 4, 2009 12:42 PM

By John R. Ellement, Globe Staff

The Supreme Judicial Court ruled today that illegal gun possession is a “passive and victimless crime’’ and those charged with having illicit firearms cannot be held without bail as dangers to society.

(AP file photograph)

In a 4-to-1 ruling, the state’s highest court rejected the law enforcement strategy of Bristol County District Attorney C. Samuel Sutter to cut down on gun violence by seeking pre-trial 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 a statement, Sutter said he was "disappointed" by the decision but vowed that the "fight against gun violence, most of which is committed by illegal firearms, will continue just as aggressively."

"We have prepared for this possibility and we will have new policies in place beginning tomorrow morning," Sutter said. "I will personally be in the courtrooms of Bristol County tomorrow and for the rest of the week, making sure that our aggressiveness at bail hearings is just as strong as ever."

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 it ignores the reality that illegal guns are at the heart of crime problems 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."

The majority opinion, 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.’’

In practical terms, the court 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.