Panelist: SJC-13182
Commonwealth be Jorge Vega and another.
-: Attorney Garland, welcome.
-: Thank you. Good morning, and may it please the Court.
Our case was rests on two basic premises.
First, Section 58A is departure
from ordinary constitutional principles
requires that it be limited
to a few extremely serious crimes,
those that have the menace of dangerousness.
Second following young,
regulatory firearm possession charges
without more lack that menace of dangerousness.
Therefore, firearm possession charges as such,
cannot be predicate for pretrial detention
under Section 50A.
And that doesn't mean that firing a firearm,
brandishing a firearm, illegal use of one,
or possession of the firearm with intent to use it
for some illegal use.
All these things could be proper predicates,
either as freestanding crimes
or as use of non categorical predicates,
as in the abuse clause discussed in the Sioni case.
But simply-
-: Would the young assume without getting into it
that this enumerated offense would be constitutional,
if there was clear and convincing evidence?
-: If there was... I mean, like I said,
the clear and convincing evidence
I guess gets the second stage.
I mean, so you-
-: No I understand and it's numerous.
I'm just asking you if this dip to in young
that suggests the constitutionality of this offense.
-: I mean, I think young footnote 11 certainly suggests
that the legislature could add at least some form of it.
Obviously, doesn't address the constitutionality directly
because it results... It's a statutory decision, ultimately.
But footnote 11, I think does suggest
the legislature could do something.
And we do suggest that this legislature
could add some form of predicate.
We just think this is too broad,
and therefore it defeats narrow tailoring.
And I think the ultimate issue
is in some ways less about firearms,
and more about 58A itself.
And I think the decision has been done-
-: Before you leave that though.
So they don't make a predicate offense possession
in the home, or possession in your business,
but they do make carrying the firearm.
Isn't that narrow tailoring?
Don't we... Shouldn't we respect that?
-: I agree that's some tailoring,
I would suggest that still not enough.
Because many people do carry firearms,
even unlicensed people for their own protection.
And the Commonwealth which...
Because we're in strict scrutiny here,
the Commonwealth has the burden of proving
that that's not the case.
And my belief is that there are a large number
of people out there that it may not be a good idea
and that the legislature can punish that.
But they don't necessarily present
the menace of dangerousness
such that the legislature can bite-
-: Excuse Mr. Garland,
is there a gun violence problem in this Commonwealth?
-: Absolutely. Absolutely.
And again, I think that the legislature can-
-: Absolutely, then why not?
I mean, what if we agree with Justice Collins analysis
and her dissent and we say that
if you look at the fact that she cited,
we get past strict scrutiny.
How do we not use this to address
the epidemic of gun violence,
especially in the inner cities?
-: I absolutely agree that's a problem.
And I absolutely think the legislature
when it comes to punishing crimes,
setting kinds of punishment,
the legislature has a large amount of deference.
It can sweep a lot more broadly.
And it can say, even if you don't have
any particular bad reason for carrying this firearm
and even if you are just carrying it
through own self defense tough luck,
you know the law, the law of...
Even if you don't the law, but most people do.
You can't possess a firearm without a license
and you get punished.
But that's different.
I think it really gets to this point about Section 58A,
that Section 58A is a deviation from normal constitution-
-: No, I know why you want to get to 58A
and the strict scrutiny.
I agree with you 100% and why it's a deviation.
Did you look at the federal detention act
that also includes detention for possession of a firearm?
-: It does, and we've started that in a footnote
in our reply brief footnote.
I'm blanking on which footnote, I think-
-: The footnote number doesn't matter.
-: Yeah, but the federal statute for one thing,
there is no federal licensing scheme.
So most of those cases are going to be felon in possession.
-: Okay, but by its terms, it says possession of a firearm.
Have there been due process challenges
to that provision in the federal statute?
-: Not that I'm aware of.
And I would also note that-
-: Did you look?
-: I have looked and I have not found any.
I've not done a...
I've not looking at every case
ever addressing the federal statute.
But I did look for due process type issues.
I didn't find any.
-: Alright, thank you.
-: And I would also note that the federal courts
apply a lower standard at least in some cases
of substantive due process analysis.
And so I think that even if federal courts had upheld it,
even if the US Supreme Court would upheld it,
this court's jurisprudence under Articles 1, 10, and 12,
is still stricter than that.
-: Attorney Garland, if I could follow up
with Justice Gaziano's point,
obviously, one, it's nice to see you and Attorney Slyman
who we hear from in a moment.
Because the three of us were together
in Dorchester for a long time.
And you know that division in Suffolk County has the most...
The highest number of gun cases in Suffolk County
come out of that division.
We all three of us know that.
And these are the people that live in these neighborhoods
that we care about.
And when you talk about
the fact that there may not be anything per se violent,
or that there may not necessarily be a violent purpose
for why they're carrying
or find these unlicensed firearms,
but we see them and all the one ones.
You hear all the shot spotters go on every night
where the good people of those neighborhoods
could get a good night sleep too.
And that the cars that being stopped
with all the unlicensed possessions of firearms.
I understand that Justice Cowan was the dissent.
But I still barring the occasional person
that might be going through
Commonwealth of Massachusetts from New Hampshire.
Why isn't it that we could say it's in and of itself
that you wouldn't be carrying that unlicensed firearm
if you weren't going to do something wrong with it?
Why is that so hard a premise to say the legislature
could then say because of that,
we just don't want that in our neighborhoods
and leave it to the second part of 58A
to see whether or not there's any reason
to hold this person?
-: I might think the legislature can do that
as a matter of setting the law and punishing people.
I think the bigger picture problem is that...
I mean, the bigger problem course is that section 58A
really does have to be cabin narrowly.
And then the other problem is that the neighborhoods
where there is the most risk of gun violence,
there's also the most need for self-defense.
And a lot of people are going to end up carrying firearms
for defensive purposes, even if they don't have a permit.
And the legislature can punish that.
Legislature and say that's a bad idea.
We don't like that.
We can punish you for that.
But that's still different from saying
that we can detain you in contravention
of normal constitutional principles.
-: But leave it... Take your point, though.
I mean, isn't bad in and of itself dangerous
that somebody is arming themselves for purposes
of self defense, and rather than walking away
or de-escalating a situation to pull out a gun and shoot?
How does it point?
-: Yeah, but self defense, I mean...
And again, I think the legislature can say
that is a bad idea.
But I think that's still different
from that being so dangerous,
that we need to bypass the constitution to deal with it.
And I think it gets to Justice Freed's opinion,
I find very thoughtful in Mendoza,
where Justice Freed as Solicitor General had argued
for pretrial detention in Salerno.
And he comes back and he approves in Mendoza,
the court does, but they're very troubled by it.
And there's this concern
that if we make this widely available,
that we're going to bypass the normal principles
of the Constitution.
And maybe it's not gonna happen today,
maybe it's not going to happen tomorrow.
But eventually, this is going to keep growing.
And eventually, this is going to replace
a lot of the normal constitutional processes
we have for dealing with these problems.
And if we make it too widely available,
I think there are a lot of people
who in absolute good faith are going to say,
let's use this to solve these social problems
that are absolutely real social problems.
And it's going to take the place of these principles
that are very important and enumerated
in the Constitution in great detail-
-: Great. If it solves a social problem,
doesn't it then provide a basis to satisfy strict scrutiny?
-: Well, I mean, it solves some social problems.
And one issue that I think-
-: I mean, I'm not getting your OK Corral analogy
that we're just gonna throw our hands up
and allow people be armed.
But speak to whether or not it survives strict scrutiny,
given the gun violence issues.
-: And I'm not saying that...
Again, I think the legislature can say,
we're not going to have an OK Corral scenario.
We are going to punish people who violate these laws,
even if they had absolutely innocent intentions
in violating them, but-
-: Because as Justice Georges said,
I mean that the parade of horribles
about the old lady cleaning out the Ruger
from the World War II veteran who's taking it
to the police station.
That's just nonsense, you know that.
So deal with the realities of gun violence.
-: Well, there are cases,
I mean, these are not this case that I acknowledge.
But there are counties
in which prosecutors pretty much as a rule,
even if an informal one apply in every single case.
They may not necessarily get held for the full 120 days,
but even getting held for three days.
The Dobby study we cite at pages 24 and 25
of our brief talks about the test that they do
for all these harms that come from pretrial incarcerations
is do you get released after three days or not
or before three days or not?
And so the all those harms, you can lose your job.
And that ended up being destabilizing
what Dobby and the Lesley and Pope article we cite
also say is that, yes, when you detain people pretrial,
you can get a short term-
-: Oh no, I agree with you.
And I agree that it has to be strict
that's why we have strict scrutiny.
That government doesn't really address that.
And Mendoza, and Amy, and all those cases, absolutely say,
we have to do this in a narrow circumstance.
But what we're puzzled with or I'm puzzled with,
is why doesn't it satisfy strict scrutiny
where we have this glaring issue of gun violence
in this Commonwealth?
Again, I read something this morning that said,
91% of the fatalities of young people are from firearms.
-: I don't know. I mean, maybe it's-
-: Didn't see it all so maybe it was wrong,
but I read something-
-: I think that'd be higher than...
I mean, I don't know.
But I agree with the Court that it's a big problem.
And the legislature does have tools that can use
including criminalizing unlicensed,
even innocent unlicensed possession.
But, again, I think it goes to this fundamental problem.
Blackstone famously said better 10 guilty persons feel free
than one innocent suffer.
And Section 58A kind of turns that on its head.
And so it's better that 10 presumed innocent people suffer
to prevent one person from causing some harm.
-: Mr. Garland, that's not getting at the key point.
There's no doubt that preventative detention
raises serious concerns,
because the individual hasn't been found guilty
beyond a reasonable doubt yet.
That's a given.
And that's why Salerno and Amy and Mendoza
all require strict scrutiny.
But when you mentioned earlier that you believe
that the Declaration of Rights
provides enhanced constitutional protection here,
presumably on the procedural due process
and substantive due process side.
What specifically are you referring to?
Because I, like Justice Gaziano,
I'm not aware of any case
that United States Court of Appeals level,
at least saying that felon in possession
or firearm offenses don't fit within the federal statute
and wouldn't survive strict scrutiny.
-: Right. And, again, that hasn't been addressed.
And I would suggest that felon in possession,
at least that would be if...
That could be something that they could narrowly tailor-
-: My question is too long that you forgot it.
What specifically is it
that you're referring to in our case law
that says that cognate provisions
of the Declaration of Rights, provide enhanced protection
in our strict scrutiny analysis?
-: I mean, Mendoza gets into that a little bit.
And there's, for instance, as a procedural matter
the detention of the mentally ill and dangerous under-
-: Just for us to be clear,
this is a substantive due process claim,
correct Mr. Garland?
-: Right. But they're connected procedural due process.
And we're I think it...
We challenge both.
And so I think Mendoza gets into this
that the articles 1 in 10 provide more protection.
And so for those reasons, I asked the court
to reverse the single justice
and hold that Second 10A cannot be a predicate.
-: Can you just follow up on the answer
you get to Justice Lowi.
Why would felon in possession,
which is also a regulatory crime
has to do with one status have more teeth to it
than just regular old possession?
-: I mean, it is more narrow for one thing.
The federal cases, again,
they don't address the constitutional issue.
There actually are a number of federal cases
decided on singleton lane that said
that under the federal equivalent to the residual clause,
that those were not enough.
So it does have some of the same problems,
but it is also more narrow.
-: There was a federal split
over whether or not it satisfied similar to young, correct?
-: Right- -: But then the Feds
amended the statute in my understanding?
-: Exactly.
-: Okay, thank you.
-: {Garland] Thank you.
-: Attorney Slyman.
-: Thank you. Good morning, and may it please the Court.
Mackenzie Slyman arguing on behalf of the Commonwealth.
When the legislature amended 58A
to include the unlicensed hearing of a firearm
as a predicate offense,
it did so not only as a lawful exercise
of its inherent least power,
but also indirect response to the authorization
essentially provided by this court and young.
This Court acknowledged the young
that whereas in the situation we're in here,
the elements of a felony do not require proof
that the defendant actually disregarded
the safety in wellbeing-
-: Young says nothing about substantive due process, correct?
-: Correct, Your Honor.
Young doesn't get into a strict scrutiny analysis.
Young was analyzing 10A, solely under the issue
of the residual clause where they fell in there.
I'm finding that it didn't because there was
no substantial force in relation to the elements
of that chart of the offense.
They could not...
The Court could not fit it into to that clause.
But I think it's really important to point out there
that I think the Court made it abundantly clear that
they had to reach that conclusion due to the nature
of the residual clause,
which was later struck as being unconstitutionally vague.
But that absent clear legislative intent to the contrary,
they were stuck essentially with the language
that they had in front of them,
and that the Court recognized them
that there are dangers related to the unlicensed firearms.
And I think we spend a lot of time
talking about this language of menace of dangerousness.
This language only comes out of Mendoza.
It's not taken from Salerno or any other authority.
And there-
-: Well, it's a... I'm sorry.
Go ahead, Justice Georges.
Sorry. -: Thank you.
If I could just interrupt you for one quick question.
Even though in young it was being analyzed
under the residual clause,
and then it was subsequently enumerated to now be
one of the enumerated crimes.
Does that at all change the Court's analysis
and application though?
Because even though now it's a predicate offense,
does it change the Court's analyses
that the nature of simple possession of a firearm
isn't one that involves the type of force
that we ought to be concerned about
or threat of force that we should be concerned about
for purposes of 58A?
-: I think it does, and I would point to footnote 11
of the young decision.
Because I think the Court recognizes that
where the elements don't have that requirement
of proof of safety and wellbeing
where there isn't that very obvious connection
of a disregard of safety to others,
that making that determination properly
lies with the legislature.
So I think once the Court weighed in on this and young,
legislature then took it, evaluated the situation
and came to their own conclusion,
and exercise their own judgment in finding
that unlicensed carrying is in fact dangerous,
so dangerous, that it should be...
That it should serve as a predicate
for moving for dangerousness detention.
-: But did the elements change
before and after young of simple-
-: No. -: It didn't.
And we said in young that rather we look to the facts,
rather than look to the facts of the particular case,
we look to the elements.
So the legislature might have done what they did
but I guess I'm going back to the heart of what we did.
If the elements hadn't changed,
and it's the same elements that we are to look to now,
now that it's an enumerated crime.
What's changed about the application of our analysis
from the majority in young to now?
-: I don't think... I think what's changed is that
there isn't a requirement that the Court be looking solely
at the elements of the crime and determining whether or not
the offense isn't that dangerous.
And I think that this can also be looked at.
If you look at the other enumerated offenses,
offenses within 58A1,
I would point out that it does also include
violations of the Controlled Substances Act,
and OUI, third offenses.
I think that those are examples there too
where you can look at the elements of those charges,
and not find any force
or showing where you need to find force.
And so I think it shows that there isn't a requirement
that we only be looking at the elements.
I think, Justice Georges what you were alluding
to further that gun violence is without a doubt
a huge problem in the Commonwealth at large
and specifically, in the city of Boston.
At that minimum, it causes a nuisance
to the communities we live in.
And at its maximum, it's taking lives from everyone.
And this provides a tool for the legislature,
for the judiciary, and for the executive branches
to step in when someone doesn't have a license
to carry a firearm and take that firearm out of circulation
and recognize that that person could use a firearm
in a dangerous manner.
-: I'm sorry, did you finish your question...
Your answer, I'm sorry?
-: Yes.
-: So two questions.
One is did you look at the federal statute in the case law?
-: Yes.
-: You did. All right, what did you find?
Because I don't think it's in your brief unless I missed it.
-: I did touch on Salerno.
I think so far as-
-: I meant the federal detention statute.
-: Sure. So I'm not sure how
where the Court's question is going specifically.
I acknowledged that the time that Mendoza came out
when I was comparing it to Salerno
or I suppose when Salerno came out,
but the possession firearm wasn't included
as a predicate offense at that time.
But then it has subsequently been included as a predicate.
But I think that the Supreme Court's analysis there
is still clickable here
that it is a sufficiently serious offense.
-: But let me ask you about the Alvarado decision.
If you recall, the Alvarado's search and seizure...
Alvarado, search and seizure case that says that
just because you have a firearm
doesn't mean you have a right to search someone.
So having a firearm is not illegal.
Having an illegal firearm is illegal.
But it speaks to the inherent dangerousness
of the firearm in this regulatory offense
as Mr. Garland writes in his brief.
What do we say?
If we say that this is inherently dangerous
and it satisfies strict scrutiny,
what do we do with Alvarado?
Well, we said it doesn't.
-: I think that the stages of investigation
and the trial process are different there.
And I think that's where this distinction can be found.
I would look at it as well discussing Jackson
is Commonwealth be free.
I think there's a lot of really helpful discussion
in Jackson from his-
-: Can you explain the first part of that answer.
Again, I don't think I followed what you meant.
-: Sure.
I think the difference that we're looking at here is that
the analysis that the Court is doing
when it's with a dangerousness hearing
is we're only looking first at...
It's not just only the possession of the firearm itself.
It's the ramifications that surround it, I think
that distinguish it from Justice Gaziano's question?
I don't know perhaps-
-: It does but I guess the question we have is,
doesn't that sweep too broadly?
Because dangerousness is supposed to be very rare,
and very unique and that's why we have strict scrutiny.
My concern is this sweeps too broadly.
-: I understand.
I think it still is narrowly tailored.
And I think it does still surpass
the strict scrutiny analysis, because of-
-: Narrowly tailored to what?
-: To the dangers that are inherent
to unlicensed carrying of a firearm.
I think this was touched on with Attorney Garland
that there is a difference between possessing on your own-
-: But now it's your turn to answer
not Attorney Garland's- -: Of course.
-: So the questions he raises,
he raises some really important issues in his brief,
whether or not just sweep too broadly
and whether or not this is just an overuse
and an unconstitutional use
of a preventative detention statute.
-: Sure, I don't think it's sweeps too broadly.
I think the legislature indicated that it was thoughtful
in its choice of what sections to include as predicates.
I think there is a distinction to be drawn
from possession without an FID card in your home
or in your place of business.
I think there's a difference between having a firearm
in your nightstand that never really leaves your nightstand,
then actively carrying one out in public.
But that poses an inherently a greater risk
towards the public and towards the community of danger.
And I think that's exhibited through this Court's acceptance
of the increase of mandatory minimums on possession
of the firearm during the commission of a felony
where the mandatory minimum is increased there
and really having a firearm on your person,
because I think it illustrates there.
There's an increased risk of danger in that situation
by merely just having the firearm with you.
The fact that there's a mandatory minimum
that's associated with 10A of unlicensed carrying
where there isn't a mandatory minimum on 10A
of unlicensed strict possession of that firearm.
There's repeated acknowledgment
that there is the danger that is associated
with carrying in public these unlicensed firearms.
Because you're circumventing the system
we have in place to be checked for licensed,
to go through the safety training,
to have your criminal record examined
to make sure that you are good to be carrying
in public a very, very dangerous weapon.
-: A lot of states don't have these requirements.
A lot of states have so called constitutional states
where there's a right to possess a firearm, right?
So this puts us to this regulatory scheme
that you speak of, is in the minority of states.
-: That's correct.
But I don't think it oversteps the premise,
the legislators ability to make this requirement for people.
I think it's taking into consideration the significant risks
of firearms in public and the prevalent issue
of them violence, and it is not overstepping in that regard.
-: Does the scrutiny analysis apply to the scheme entirely
or to these gating enumerated offenses?
-: I'm sorry, I didn't hear the last part of the question.
-: Does this strict scrutiny analysis apply just
to the enumerated offenses
and whether or not the offense is on the list?
Or is it an analysis that takes into account
the entirety of pretrial detention?
-: I think in the case we have before the Court today,
I think it would be the former.
I think we're looking specifically
at where the defendant is challenging
the inclusion of 10A as a predicate.
I think we- -: Why would that be?
Because that's not enough to hold somebody.
You've got to do the- -: Sure
-: Clear and convincing evidence
that there's no conditions
or combinations of conditions of relief.
I'm not sure I understand the answer
to Justice Wendlandt's question, actually.
-: Sure. So I will set that back.
So it would apply to the entire statute.
And I think when you look at
what the test is for strict scrutiny,
we're looking at that narrowly tailored
to significant government...
To a compelling government interest,
but also that it's least restricted means.
And I think that part of the test least restrictive means
is what experiences to the entirety of the statute
and the Commonwealth does go into that and brief that.
By the nature of the statute itself,
it embeds it entirely that there is...
That on a case by case basis on every single person
that's brought in front of the Court
on a dangerousness hearing,
the court needs to determine every single time
that this is in fact the least restrictive.
There's no alternative.
-: Doesn't that beg the question, though?
So if we only rely on part 2,
we just throw our hands up and say
you can do anything on part 1,
for the for the predicate crimes?
-: I don't think so.
I don't, because I think that the legislature
would still have to pass in the interest of
or include something as a predicate in the interest
of some compelling government need.
I don't think that- -: Isn't it part
of the tailoring process?
Because you can't include certain crimes.
So you start the narrowing the funneling down
in the first part with the definition
of the predicate offense,
and then you further tailor in the second part.
So it seems like it's part
of the least restrictive alternative.
It's a two-part analysis, right?
-: Yes, I would agree with that, Your Honor.
I think they inherently flow together.
-: Okay, shall we give Attorney Salois chance
to answer questions.
-: Thank you, Your Honor.
Hon. Kimberly: Thank you.
-: Morning, Your Honors. May it please the Court,
Abigail Salois on behalf of the Commonwealth.
My sister has covered most of my arguments,
so I won't take too much time.
And of course, I'm happy to answer any questions
that you may have.
But where I'd like to begin is the point
that the pretrial detention statute in Massachusetts
is narrowly tailored.
The statute only allows the Commonwealth
to move for pretrial detention.
And then of course, the Commonwealth has to prove
by clear and convincing evidence
that no conditions of release
would reasonably assure the safety of others.
And looking at the facts of this case, in particular,
Justice Kimberly correctly denied
the defendants petition for relief.
So after the Commonwealth is able to move
for pretrial detention,
it's not a free for all.
There are 12 factors that are enumerated in 58A-
-: Let' talk about the first factor
of the predicate crime. -: Right.
-: You can't, unless I'm mistaken,
you can't detain someone on a first offense OUI, right?
It has to be the third offense?
-: No, absolutely not.
-: Third offense or something, right?
-: Yep. -: But-
-: Third in subsequent.
-: Okay. But you could argue that a first offense OUI
is just the first time the person's caught
and they're a danger
because they're endangering the safety
of driving public, right?
-: Well, the legislature in-
-: And then you would answer, well, we have part 2,
and we have to jump through all the hoops.
But I think you have to show
why the enumerated offense satisfies to scrutiny.
-: So the legislature in adding this...
Well, actually let me take that back a step.
So in 2019, when the residual clause
was held unconstitutionally vague,
the statute of course became much more narrow.
So right now, the only enumerated offenses under 58A
are burglary, arson, whether or not a person
is put at risk thereof,
domestic by offenses, witness intimidation,
OUI third, and subsequent, some animal abuse offenses,
offenses under the ACCA and controlled substances
punishable by three-plus years.
So the first part of the determination
is whether or not it's one of those enumerated offenses.
And then if it is, it's then the commonwealths burden
to look at the specific factors of the case
and go through, for example,
the circumstances of the offense.
So, in the- -: But there's a...
Counsel, there's a problem here.
And I guess it goes back to Attorney Garland's point.
I don't know about you, but I've never been held in jail.
And if it's a pre...
if you're saying as a predicate offense,
that this is okay, it's as of right.
The judge doesn't even make a determination
about whether or not ultimately the person will be detained.
It's the Commonwealth moves and you say,
Hey, judge, you've got no discretion
to not hold them pending a hearing.
-: No respect for, Your Honor.
That's not how my understanding of how the statute works.
So first the Commonwealth makes a move.
The enumerated offenses just allow the Commonwealth
to move for dangerousness.
And then there's a hearing-
-: In three days.
-: That's, you've got three days, so-
-: Well, we can move for a continuance
with the showing of good cause for three days.
-: No, but the you're missing
the fundamental predicate though.
When you move for dangerousness and say,
it's one of the enumerated predicate crimes,
are you saying that the judge has discretion to say,
"No, I'm not.
Go to home?" -: After a hearing,
they can determine that there's no hearing convincing.
-: After now that you move for dangerousness.
-: No- -: Okay.
-: Of course- -: But that's what
I'm getting at.
-: Okay.
-: So if you're hold anyone for any amount of time,
that's a big deal.
And we've said that a lot of times
that it's a big deal, right?
-: Certainly, Your Honor.
And I don't mean to diminish the importance and certainly
the problems associated and the harms associated
with pretrial detention.
I certainly am not lying to those things.
However, I would say that the harms of gun violence
in the city and in the Commonwealth
far outweigh the harms of a limited...
I'm sure one day in jail, as Your Honor said is awful.
However, I would argue on behalf of the Commonwealth
that the harms of gun violence far outweigh those.
And going to this stated purpose of firearm legislation
is to limit access to deadly weapons by irresponsible people
and preserve public health, safety, and welfare.
And looking at the wordage used in the young case,
the Court did not express reservation or suggest limitations
regarding the inclusion of 10A and 58A.
It didn't say, well, we should only do it
if the firearm is brandished or used.
And maybe these...
It said that the...
Were not unmindful of the dangers relating
to unlicensed possession of firearms.
And certainly in Justice Cowans decision,
there was some very heartfelt words
about the risk associated with firearm possessions
quite clearly are increased
when the firearm is unlicensed.
And the purpose of a firearm is to injure or kill.
There is no other reason for that weapon's existence.
So I would say that although I'm sympathetic
to the harms of pretrial detention,
it's far outweighed by the problem of gun violence
in the Commonwealth.
And the statute of course-
-: Council, is that the test?
I guess, isn't the test whether holding somebody
for three days is a narrow tailoring to achieve
the compelling state interest in these enumerated crimes
and holding somebody to then have the hearing
to evaluate whether to hold more broadly?
So it's really the three days.
Is three days narrowly tailored
to the potential danger posed by somebody
accused of these crimes?
-: Yes, Your Honor.
I would argue that that the three days is outweighed
and that's why it's limited to these offenses.
And there is no more residual clause
and it's become much more narrow since 2019.
I would also point out that the debate about
the constitutionality of pretrial detention
has been going on in Massachusetts for decades.
And a close reading of 58A and the history of the statute
shows that the legislature and this court
have struck a very careful balance
between public safety and the constitutional rights
of the individuals who are charged
with these particular offenses.
-: Counsel, along those lines,
may I ask you how much is the judge permitted
to take into account when making that evaluation,
the level of gun violence in a particular area
at any given time?
Or is the judge confined to the defendant's circumstances?
-: The first factor under 58A Section 5
is circumstances of the offense.
So I think you can't answer to that.
Yeah, so for example, in this particular defendant's case,
the police responded to a call
for shots fired around 1 o'clock in the morning,
in a high crime area of the city of Worcester.
They arrived to find a person who was injured,
and said he had been jumped by a group of males.
And then the police came upon a group of males
in the parking lot and a vehicle
with a loaded stolen firearm.
So there's no question in this case
that this individual was dangerous.
This is not a case where it's a little lady moving,
in antique firearm or an over-the-road are driving
from New Hampshire-
-: Well, are there not federal provisions
that would protect the trucker through the state violence?
-: Yes. I mean, there's certainly
different jurisdictional questions
that would come up in that set of facts.
And to my knowledge,
that's not something the Commonwealth
would move for dangerousness on.
I don't spend much time in the district court,
but my understanding is that's not something
the Commonwealth would move on.
And even if it did,
I can't imagine a judge
issuing a pretrial detention order on those set of facts.