Supreme Judicial Court (May 4, 2009)

Unlicensed possession of a firearm is not a predicate offense for purposes of G.L. c. 276, sec. 58A.

Two defendants, in unrelated cases, were charged with unlawful possession of a firearm. The Commonwealth moved to detain them pursuant to G.L. c. 276, sec. 58A. The Superior Court determined in each case that unlicensed possession of a firearm was not a predicate offense for purposes of section 58A. The Commonwealth sought relief from a single justice, who reserved and reported both cases to the full Court.

Section 58A pretrial detention may be ordered only when the Commonwealth establishes dangerousness by clear and convincing evidence that "no conditions of release will reasonably assure the safety of any other person or the community." To constitute a predicate offense, a felony must by its nature involve a substantial risk that physical force against another may result.

The predicate offense inquiry focuses on the elements of the crime, rather than particular facts in a complaint or indictment. The Court determined that it is the unlawful use of a firearm that involves a substantial risk of physical force against another, not the unlawful possession of a firearm. Unlawful possession of a firearm is a "regulatory crime," and it is "passive and victimless." Unlawful possession of a firearm does not demonstrate a disregard for the safety of others, and as such, it lacks the element of dangerousness required to be a predicate offense for section 58A purposes.