-: SJC 13148, the Commonwealth B Edward B Flurry.
-: Okay, Attorney Robinson.
-: Good morning, Your Honor.
I'm going to remove my mask pursuant to the standing rules.
May it please the court, Tom Robinson,
for the appellant Edward Flurry.
At issue in this appeal is whether the legislature intended
the forfeiture provision under general law's Chapter 276 3B.
Governing property seized by search warrant,
whether that should apply to firearms
that are improperly stored.
The words in the statute that create the ambiguity
in this case are the words, 'unlawfully kept'.
If we look to the intent of the legislature in determining
the meaning of these words and whether it properly--
-: Let's start with the plain and ordinary meaning.
Why is not something that has found to have been kept,
kept or stored?
Or that is, lets look at the language
of the statutes themselves before you
get into the legislative history, if you might.
-: Yes. -: The language
of the forfeiture statute says,
"found to have been kept,"
and your client has been found guilty of,
of a violation of the keep and store provision of 131L.
Why is that just not a plain and ordinary meaning?
-: Well, if you look at the entire language
of Chapter 140, 131L,
the word 'keep' does not stand alone.
There is a modifier. -: Right, so,
found to have been kept is broader
than 'keep' under 131L,
right. -: Yes.
-: So why isn't 131L's subset of the type
of keeping something that is included
in found to have been kept?
-: Because under 140, 131L, it is, as I was saying,
not just found, but found with the modifier in any place.
-: And so a subset of keeping.
-: Yes. -: You can keep it here,
or you can found, you can keep it as 131L says.
-: I would agree.
I would agree that storing would be a subset of,
or included within 'keep',
but I would suggest to you that had the legislature intended
in the enactment of 140, 131L to include stored firearms.
They could have simply added the word 'stored'.
-: But if found to have been 'kept' is a broader thing,
then 'store' or 'keep', than in 131L,
why would the legislature have found need
to amend Section 3B?
It's already included.
It already includes the subset of 'keep' and 'store'
that is unlawful under 131L.
-: Well, I would suggest to the court that the,
the, because the intent of the legislature
at the enactment of 276-3 could not have included
a storage at that time.
So to erase ambiguity,
what should have happened, if that was the intent,
was for them to put the word 'store' in there.
And if there is any ambiguity about whether or not just
the words 'unlawfully keep' encompass 'stored',
I would suggest to the court that the rule
of lenity demands that that ambiguity be resolved
in favor of the defendant.
-: What's the purpose of the forfeiture law
to begin with this?
Was there anything in the legislative history
that you found for why they passed the forfeiture law?
-: In terms of the history of 276-3,
as I outlined in my brief,
it would appear that the first iteration that we
have is in 1835, Chapter 142, Section five,
and from the language of that,
it would appear that the legislature at that time
was primarily concerned with stolen
or embezzled property and the return of stolen
or embezzled property to its rightful owner
and it didn't contemplate seizure of property
as a result of items that are used in wrongdoing.
And it stayed that way
and in fact had language in it suggesting
that property could only be forfeited,
forfeited if it was found to have been used
in the commission of a crime.
Stayed that way, I believe until 1964,
when we get this amendment to the,
to the language of the forfeiture statute,
which includes the,
what I would suggest as the problematic language
at issue here today.
-: Do you understand,
what was the purpose of the amended statute?
Was there anything in your,
in the legislative history that said,
that explained why they amended it to be a little broader?
-: Not that I was able to find,
but as I outlined in my brief at that time,
there were about four statutes that dealt
with different types of illegal possession of a firearm.
And so it would seem that that language, 'unlawfully keep'
was meant to address situations in which someone
was possessing, actively possessing a firearm
in contravention of the law.
-: And you're suggesting this is a passive,
a passive possession and contravention
of the law rather than an active one?
-: I would suggest that the words
are very important, Your Honor.
I would suggest that if we look to the,
the history, the etymology of the words 'keep'
and 'store', it is instructive
and it goes to exactly what you're talking about.
The word 'keep', according to the Oxford English dictionary,
the unabridged version,
suggests that the origin of that term
was originally construed as a genitive,
a case of nouns or pronouns indicating possession,
such as the word 'my'.
It then first begins to appear as a word in the middle ages.
We have the word 'cepan' that appears
in a text of homilies from 1175.
-: Do you think the legislature was consulting that?
-: I don't.
I think it's just it,
I draw this historical distinction
between the words 'store' and 'keep' to suggest
that there is a very significant difference
between the two words. -: Right,
as in you're supposed to store it properly
and don't keep it with improper storage...no?
-: Well, the...the...
the history, the etymology of the words,
I would suggest indicates
that the word 'keep' generally implies
some form of present possession,
whereas 'storage' or to store implies leaving in a place.
And the language of 140, Section 131L would bear that out
because as I said, there is that modifier
within that statute in a place.
-: Going back to the Chief Justice's question
about the purpose,
if you look at the entire statute of Section three,
it deals with items seized in search warrants
and also diseased animals and the like.
Would a proper reading be that we don't want people
to have bad things, contraband, diseased animals.
They're gonna be destroyed.
And in this situation,
we don't want people to get an illegal gun back.
This is different, I think you're arguing,
because your client can cure the problem
by having a lock, correct?
-: So... -: I'm trying
to draw the distinction or asking you
if there's a distinction between contraband
and items that are not contraband.
-: I would agree.
I would agree, Your Honor.
So generally speaking, there was contraband
and as I said, at the initial enactment of 276-3,
we're concerned with the stolen property.
And so, and up until 1964,
only contraband or stolen items
would be subject to forfeiture.
And 140, 131L and improper storage is unique
because it is not contraband in the sense
that it's unlawful property.
It's property that's lawfully owned that has been determined
not to be properly stored,
which is a legitimate concern of the Commonwealth
of the courts and of the legislature.
But I would suggest to you
that if there is going to be a penalty of forfeiture,
it should be explicit in the general laws
and not something that is inferred.
-: Yeah, that may be true,
but does the rule of lenity apply in the,
in the forfeiture situation?
You referenced the rule of lenity earlier.
-: I think that's a very good question.
I...I would call the court's attention
to Commonwealth versus Dayton 477 Mass, 224.
It's a 2017 case which deals with,
deals with the pretrial detention under 276 58A.
And so that's not a criminal law in the terms of,
you know, looking and analyzing a criminal statute
and whether something is lawful or not.
That is much more procedural in nature
and I would draw an analogy to 276.
Or excuse me, I would draw an analogy
to 276-3 in this case.
Another case-- -: It will address
the, the Second Amendment issues
at all and whether or not your client
is raising any issues regarding
that constitutional provision?
-: We are not, Your Honor.
The...I agree with the Commonwealth in their brief.
My sense of Article 17 of the Massachusetts,
Massachusetts Declaration of Rights
is that it's not implicated
in that it only provides protection for the right
to bear arms where the militia is implicated.
And then if you look to Scalia's dicta in Heller
which gives us an indication that the Second Amendment
is not implicated,
the rationale there is that it's not implicated
because forfeiture alone would not prevent a person
during the founding era from possessing a gun.
I think the implication is they
could just go get another one.
So in that that dicta exists--
-: Does that makes sense though really?
I mean, if he's,
is he really going to be able to get another gun,
if he's, you know, he's...
You know, the founding era,
we didn't have all these rules about getting guns.
We have all kinds of new rules about getting guns.
If someone's had to forfeit their gun,
they're likely to get another one?
I'm not, not sure I understand that.
-: I think Scalia would suggest that if that individual
was involved in a militia or if there was some type
of need for action that a gun
could be made available to that individual--
-: I'm confused 'cause Scalia writes the decision
that says, "you have the right to a gun in your,"
you do have the right to protect your home, right?
So you have a right to a gun in a home.
I'm not, you know, they weren't dealing with storage.
I'm just wondering whether, you know,
the distinction here between storage and keeping
has some Second Amendment issues related to it,
because you're,
again, the distinction Justice Scaziano was talking
about earlier between storage may be more limited.
I'm just not sure I follow
why there isn't a Second Amendment issue here.
If you're not raising it,
we don't have to wrestle with it, but...
-: Your Honor, I don't disagree in the sense
that the right to bear arms is enshrined
in the Constitution and it is considered
a fundamental right.
But unfortunately from my, from my perspective, the,
the case law would suggest certainly for Massachusetts,
that the Massachusetts Declaration of Rights
is not implicated and in terms of what we
have from one of the court's most conservative justices,
we have language directly on point suggesting
that a law governing the forfeiture of firearms
would not implicate a Second Amendment right.
-: Okay...all set?
Thank you.
-: Thank you. -: Attorney Von Flatern.
-: Thank you, good morning, Madam Chief Justice,
members of the court.
Assistant District Attorney Cynthia Von Flatern
for the northwestern district for the Commonwealth.
With respect to this defendant,
the Commonwealth would ask that the order of forfeiture
be affirmed that Chapter 276, Section 3B applies
to the weapons in this case, to the 12 guns
that for which the defendant was convicted.
There were-- -: I'm a little confused
by this 'cause,
so 276 Section three is written well before the 'store'.
At the time it's written, storage
is not illegal, right? -: Correct.
-: We don't have any legal requirements about storage.
-: Correct, predated the storage statute
by about a century and a half.
-: So it wasn't, it wasn't even focused on storage.
The idea of improper storage couldn't result
in a forfeiture back then, right?
-: Well, I mean the statute,
the statute always said unlawfully kept, used or concealed,
but, but, but there was not, there was no statutory,
there was no offense for,
there was no requirement to keep one's gun under,
you know, under a lock or locked.
So, so there wouldn't, there wouldn't be--
-: And then when the legislature passes 140,
Chapter 140, 131, they create a distinction
between store and keep, right?
They, they, we gotta have some meaning to that, right?
-: Well, they do say 'store' and 'kept',
Your Honor, and normally--
-: They say 'store' or 'keep'.
-: 'Store' or 'keep' and normally we can infer
that they're not going to put in any extraneous words.
So we would infer that it could mean two separate things,
but it can also mean the Commonwealth argues
that they are familiar,
the legislature is familiar with its own statutes
and that 'kept' would definitely be included
within one, within 276, Section three.
And oftentimes with respect to one's--
-: But if that's the case,
why didn't they just write 'keep',
it shall be unlawful to keep any firearm.
If, if it, if it encompassed it,
why did they need to draw the distinction
between storage and keeping?
-: I think that 'store' is a type of 'keep'
and sometimes, you know, thinking about holding
onto one's gun, one could have it
in a more permanent storage
and have sort of constructive possession of it in,
in one's home or even in one's barn or office or something.
And that, or they could have it, you know, closer to them
and that might seem more like 'keep',
so that 'store' does imply some future use,
but it's still a type of keep and it can be very fluid.
With-- -: Yeah, we
have very particular storage requirements, right?
I mean, I, I'm not, I can't remember them,
but they're very detailed, right?
-: Yes, that there have to be a trigger lock
or that they be kept in a secure container.
But I think the case law shows that,
you know, when you're looking
at the constitutional implications
of the storage of Chapter 131, or Section 131L itself,
that there's no Second Amendment violation
because a person can get quick access to their gun.
It's kept it, it, it has to be secure, but once you--
(chuckling)
-: Not if they're destroyed. -: Yeah.
What about the due process part of this case
where I, I assume this gun collection
is very valuable, correct?
-: I assume so, yes, Your Honor.
-: Yes, so. -: And there were many guns
for which the Commonwealth did not seek forfeiture
because the defendant was,
did have some law, many of them lawfully stored,
and also was acquitted. -: So, so, lets,
lets go to the parade of horrible.
Somebody has 20 firearms.
They're not, they're all kept without,
improperly kept and they have a valid license for them
and these are valuable weapons.
Some are, you know, relics and the government
comes in and says, "all right, we're gonna charge you
"because you don't have trigger locks."
Fine, the person is charged.
Then the government says,
"and we're going to take this $500,000 worth of guns
"and we're gonna melt them down and destroy them."
-: Well, first there would have to be execution
of a search warrant.
-: But I, well, all right.
It tells me on my parade of horribles, all right?
So we get to that, but the point I'm saying is,
and it goes back to what the Chief had asked.
What's the purpose of the forfeiture?
I just thought it would be,
we find you with an illegal firearm.
You don't have a license for it.
You don't get, you don't get it back.
-: Yeah. -: We're gonna destroy it.
-: Right. -: But this is,
we, we find you with the Italian made Beretta,
you know, Benelli shotgun.
You don't have a trigger lock it.
Now we're gonna take it and melt it down.
-: I think that the storage law and, and the,
and this court has said that there's this concern
with weapons reaching the hands of unauthorized users.
So the one hand there, you know, there's a question,
there was a question about,
is there a distinction between when,
when guns were seized because they were contraband,
there have to be execution of search warrant,
but they're, they're contraband.
They were illegally used.
And I think that there's maybe a conception, oh,
unlawful storage is not as serious, but, but it is,
it was part of the enactment of a body of law to,
that was concerned with, with gun control.
And there is a concern in the, in the case law--
-: Of course, the person might lose their license.
But then the question is,
do they get the economic impact of having these, these,
these, these valuables destroyed?
-: Well, there is certainly there's, there,
there is a loss of property, but, but there is also,
there has to be a finding that there was unlawful,
unlawful storage to begin with.
And in this particular case, the defendant was convicted.
-: 'Cause if we go through the statute
and if you go to the preceding Section,
you don't get your bad meat back, right?
-: Right, right. -: You don't get diseased meat,
so that clearly gets destroyed.
-: Right and there could be other weapons
that don't have as great of value as, as, as guns do.
And so there, there,
there's probably not very much concerned raised about that,
but, but there is,
I think guns are placed in a category of these are,
are dangerous, whether they were unlawfully concealed,
unlawfully used, or unlawfully stored.
There is a serious concern with,
with people being able to get those guns
and if there's been a conviction for unlawful storage,
that's, the potential has already happened.
That's already, that's already been shown to have been,
have, have arisen because of unlawful storage.
-: Is there any part of this record that says
whether or not the defendant lost his license?
Judge: Well, he's a felon, right?
-: He is a convicted felon or a felon and so that,
since the time of the Second Amendment
or all of the case, I would say, he has no,
no Second Amendment right.
That right has, has been lost for--
-: Is that part of the record, though,
what happened to his license?
-: Well, I, I think this court can,
it's clear on the record that there has been a conviction
and that we have,
the Commonwealth has only gone forward with,
with respect to the firearms that were the basis
of the conviction.
So, and the, and the, the statute for which he was convicted
was a felony.
It was unlawful storage of large capacity.
-: Okay so now, so he can't get the weapons back.
Von Flatern: Correct.
-: Then the question becomes what happens to his, his,
the economic value of his weapons, right?
-: Right, well, and he has been, he has been convicted,
and this is, this is the, the, the,
the provision in the statute is for forfeiture.
-: All right, Counsel, can I follow up on,
(clearing throat)
I guess the Chief Justice,
but as Justice Scaziano's point,
because we know that we don't construe these statutes
to reach absurd results.
There is an issue that I have that I can't seem
to make any sense out of the, the storage statute.
The last line or the last sentence of the storage statute
that talks about it doesn't apply
if it's kept on your person or within your control.
-: Yes, yes. -: I don't
have the exact language in front of me,
but again, assume for the sake of argument,
all of this stuff you're talking about,
they're there to execute a search warrant
and whomever it is has a lawful right to carry,
-: Yes. -: and they
happen to go to the bathroom and they put the gun
down on the counter and while, just as this,
the warrant is now being executed for something unrelated,
they happened to notice that the person put this gun
on the counter as they went to the bathroom.
So now it's not within their control,
but there's nobody else there.
It's just that person in their own home.
The warrant's being executed and they go to the bathroom
and they leave the gun on the counter.
So that person now is subject to forfeiture?
-: Well, I think in,
this is a parade of horribles.
In that particular case I would submit there would not be,
there might not be prosecution of that person
for unlawful storage.
I mean, you might not believe with,
that it happened that way.
You have cases where, oh, I just did something
or other in my gun, you know, I didn't,
the gun was under my control but it really wasn't.
They, you know, I think Patterson is one of those.
The gun was upstairs in, in the, in the pocket
and the, and the defendant was, was downstairs.
So, but so if, if it was something very accidental
or very momentary, you know,
that does not seem like a good case for prosecution.
-: Is there anything in the statute that says accidental
or momentary?
-: No, but it would be the Commonwealth's burden
to show, to show the, that there was a violation
of the statute.
-: Understood, but again, going, going off of this reason,
why I can't understand why there isn't this distinction
between contraband and no contraband.
Because in that situation,
the person hasn't done anything other than left the gun
off of their person unstored or unsecured.
And if there's, if they're executing a search warrant
and they see that,
I understand you're saying as a matter
of prosecutorial discretion, -: Right.
-: the prosecutor might not bring that case,
but assume that they do,
that person could have their firearm forfeited
because it's not stored and it's not locked, right?
-: Well, and again,
I think it goes back to the defendant's defense
would be that it, there was not,
that I, that I did have it under my control.
I may have gone to the bathroom,
but it was still under my immediate control.
I mean, that's the distinction in the statute.
Such weapon shall not be deemed stored or kept if carried
by or under the control of the owner
or other lawfully authorized user.
-: Right. -: So, so,
there is a factual issue there,
whether it was still under his control
and if it was under his control, there,
there would not be a violation of the statute.
There also, I, I think in this particular case,
the Superior Court judge decided the motion for forfeiture
and I think that within the, within Chapter 276,
Section three, we look at whether there there was error.
So there is, you know, if, if, if,
if upon review of the judge's order there was error,
I think that's within the statute.
So I believe that there is some discretion
within the statute in that first paragraph of Chapter 276.
-: This is a, this is a question of law.
We don't owe any,
there's no weight to the Superior Court's judgment on,
on we, we, we reviewed this in Denovo, right?
There no facts that were found, correct?
-: Well, I think that the facts that were found
here would be that the defendant was convicted.
There's a fact that he was convicted of these 12,
storage of these 12 firearms versus the others, which,
for which he was charged and they were seized,
but they were, have been returned to him.
-: We have a judge looking at a novel issue
of statutory interpretation
with no guidance from us, correct?
-: Yes and that's why the issue was stayed.
The parties agreed that it would be stayed pending
the appeal of the defendant's actual conviction
and then, and then it has still been stayed
so that the defendant could appeal his motion
for return of property denial,
the motion for return of property.
-: If I can go back to the statutory interpretation
for a moment.
At one point, you said that 'stored' is a subset of 'kept',
which raises the question of,
of why you have 'stored' in Chapter 140, Section 131L,
because as we've talked about,
you don't have 'stored' in the forfeiture statute.
-: Right. -: Which leaves one
to think that 'stored' has, perhaps,
a different meaning than 'kept'.
And I can't understand why you'd need to have 'stored'
if you're correct.
It's a subset of 'kept' in Chapter 131.
-: It does seem to be a subset, Your Honor.
I think 'store' does imply some future use
and as I said, I think that they can be very fluid
so you can have something more like 'kept'
and then it becomes more,
more like 'stored', you know, so,
but we know that, we know that 'kept' under one's control
is different, that implies immediate use.
So, but I think that we, I,
we can also say that where they are so similar
and they're, they're kind of fluid,
the legislature, we can infer knew, knew of,
and it was aware of Chapter 276, Section three,
and the language within that statute, that's...
But, but they are a little different and they certainly
did include 'store' as well as 'kept' within the statute.
-: Council, has, has the defendant made any sort
of takings argument,
that the forfeiture statute is a taking?
-: No, Your Honor. -: And what is the process
that has been afforded to the defendant
under the forfeiture statute?
What, described to me, what,
what kind of process for due process purposes
before they take the, the weapons are taken away?
What has, what has happened?
-: Well, there was a motion for return of property
under Rule 60 and then there, there was a hearing.
And so I, as I--
-: So there was notice, an opportunity to be heard
and a decision. -: Yes, yes.
There was not,
it was not automatic upon conviction.
It was not, or even upon acquittal, you know.
There, there, they first determined
that there had to be conviction and affirmance
of that conviction and there was notice
and opportunity to be, be heard.
There was memorandum on the subject as well.
And I, and I, I would submit that that first paragraph
in Chapter 276, Section three
that would give some discretion to the judge.
-: Okay, thank you. -: Thank you.