Appeals Court (April 25, 2011)

For purposes of G.L. c. 140, § 131L(a), a gun is within the "control" of its owner or authorized user when it is readily at hand and the individual is able immediately to prevent its unauthorized use.

During a call for a domestic disturbance, the police located a handgun and ammunition in the pocket of a jacket hanging in an upstairs bedroom closet. The unloaded gun did not have a trigger lock and was not secured in a locked container. The defendant was convicted after a jury trial of Improper Storage of a Firearm. On appeal, among other things, the defendant argues that there was insufficient evidence that he did not "control" the firearm for purposes of the statute.

G.L. c. 140, § 131L (a) states:
"It shall be unlawful to store or keep any firearm, rifle or shotgun including, but not limited to, large capacity weapons, or machine gun in any place unless such weapon is secured in a locked container or equipped with a tamper-resistant mechanical lock or other safety device, properly engaged so as to render such weapon inoperable by any person other than the owner or other lawfully authorized user. For purposes of this section, such weapon shall not be deemed stored or kept if carried by or under the control of the owner or other lawfully authorized user."

Control is not defined by the statute nor construed by case law. "The statute is part of an over-all scheme of gun control legislation designed 'to prevent the temptation and the ability to use firearms to inflict harm, be it negligently or intentionally, on another or on oneself.' Commonwealth v. Lee, 10 Mass.App.Ct. 518, 523 (1980). The firearm storage statute itself 'is illustrative of the societal concern with weapons reaching the hands of unauthorized users.' Jupin v. Kask, 447 Mass. 141, 154 (2006). Understanding that the purpose of the statute is to guard against the use of firearms by unauthorized, incompetent, or irresponsible persons, it becomes clear that a firearm is within the 'control' of its owner or authorized user only when that person has it sufficiently nearby to prevent immediately its unauthorized use."

The Court went on to note that the determination of whether or not a gun is under an individual's control will depend on the facts and circumstances of each case. "Among other things, consideration should be given to the firearm's location, its proximity to its authorized user or owner, and that person's ability to reach immediately the gun." In this case, the Court affirmed the defendant's conviction finding that the Commonwealth provided sufficient evidence to prove that the gun was not under the defendant's control.

Note: The Court noted that "'[c]arried' is also undefined by the statute, but at a minimum it requires actual physical possession. What else might be required is a question left for another day, although we note that in the related context of G.L. c. 269, § 10(a), 'carrying' requires non-temporary physical possession together with movement." See Commonwealth v. Osborne, 5 Mass.App.Ct. 657, 658-659 (1977).