News + Insights from the Legal Team at Zalkind Duncan & Bernstein

Articles Posted in Criminal Defense

In 2022 the Supreme Court recognized for the first time a constitutional right under the Secondhandgun-231696_1280 Amendment to carry a firearm in public, outside of the home, for the purpose of self-defense. As we observed earlier this year, courts and legislatures across the country are still trying to figure out the meaning and limits of New York State Rifle & Pistol Association, Inc. v. Bruen. Several pending cases in different jurisdictions could dramatically affect the rights of defendants—including those in Massachusetts—facing criminal charges related to firearms. 

What firearms licensing regimes remain acceptable after Bruen? Bruen overturned licensing schemes that relied on non-objective, discretionary criteria for whether licenses could issue (so-called “may issue” regimes).  This November, the federal Fourth Circuit Court of Appeals issued a 2-1 decision in Maryland Shall Issue v. Moore, applying Bruen to invalidate the firearms licensing scheme in Maryland. Maryland’s scheme relied on objective criteria (a so-called “shall issue” system) and thus observers initially assumed it would survive Bruen. The system, however, was somewhat complex: in addition to a registration process for each firearm and a process for obtaining a carry permit, Maryland required would-be gun-owners to obtain a “handgun qualification license” that required finger-printing, to take a four-hour training course, and to wait up to 30 days for approval. For two Republican-appointed judges on the Fourth Circuit, this went too far to comply with Bruen’s recognition of a fundamental right to carry firearms, despite suggestions in Bruen that requiring background checks and safety courses was still acceptable. Maryland has petitioned the Fourth Circuit to rehear the case before the entire court. In the meantime, the decision suggests that the licensing scheme in Massachusetts, although recently revised to be made into a “shall issue” system to comply with Bruen, could still be vulnerable to challenge. 

Another issue concerns the carrying of firearms across state lines. Massachusetts’ gun laws are quite strict, while some of its very nearby neighbors have extremely relaxed legal regimes. For instance, G.L. c. 269, § 10(a), the Massachusetts law punishing carrying a firearm without a license, imposes a mandatory minimum prison sentence of eighteen months. In New Hampshire, by contrast, less than an hour north of Boston, carrying a firearm in public without a license is completely legal. In August of this year, a state District Court judge in Lowell dismissed carrying charges on the grounds that the defendant was a legal resident of New Hampshire. The judge reasoned that the ability to exercise a fundamental constitutional right could not shift so dramatically just because the defendant crossed a state line. The Commonwealth has appealed the ruling to the Appeals Court, where the case is currently pending. 

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This month, the Supreme Judicial Court heard oral argument in Graham v. District Attorney for Hampden County, a case raising the questions of whether the Commonwealth has a duty to investigate the Springfield Police Department (SPD),what that duty entails, and what evidentiary disclosures state prosecutors must make about any exculpatory evidence that prosecution teams may have in events involving the police department. The decision will have significant implications for defendants wrongfully convicted of crimes based on false reports filed by police officers justifying use of force against defendants. CONTINUE READING ›

glenn-carstens-peters-npxXWgQ33ZQ-unsplash-scaledThe Internet is the central forum in our society for expressing ideas. Many of us read or create countless public messages and posts each day on platforms like Facebook, Instagram, Twitter, or TikTok, in addition to private text messages or emails. This activity is generally protected by the First Amendment’s guarantee of freedom of speech. Yet even just a few words on a screen can be terrifying in the context of an abusive family or romantic relationship. Many restraining orders and even criminal charges are based, in whole or in part, on social media posts or electronic communications. What is the right balance between protecting free speech online and protecting victims of harassment and abuse? 

Twenty years ago, in Virginia v. Black, the Supreme Court clarified that free speech protections do not apply to “true threats,” which it defined as “statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals.” Black involved a statute banning cross-burning. This past June, the Justices returned to the concept of “true threats” in the context of social media in its decision in Counterman v. Colorado. The ruling has complex implications for both victims and defendants in restraining order hearings and criminal cases involving harassing speech. 

The Supreme Court’s Decision 

This is a follow up to a previous blog about clemency: you can read that post here.

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Last month, Governor Maura Healey recommended seven individuals to the Governor’s Council for pardons and on July 19, 2023, the Governor’s Council unanimously voted in favor of all seven pardons. A pardon is complete forgiveness of the underlying convicted offense, which erases the crime from an individual’s criminal record. These pardons make Governor Healey the first Governor in Massachusetts in over thirty years to successfully grant pardons during her first year elected. These seven pardons also mark the highest number of pardons granted by a Massachusetts Governor in their first term in over forty years.

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Criminal records can have a devastating impact on access to life-affirming resources such as housing and employment. To address this issue, Massachusetts has steadily passed legislation that has made it easier for people to seal their records. My colleague has previously written about CORI reform law, including the 2018 legislation, and the Supreme Judicial Court (SJC) decision in Commonwealth v. Pon, which made it easier for people to seal their criminal records under M.G.L. c. 276, § 100C by laying out six factors for judges to evaluate whether there is “good cause” to seal the criminal records as discussed in our previous blog post.

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Since its 2008 decision in Heller, the U.S. Supreme Court has been expanding the understanding of the constitutional right to bear arms under the Second Amendment. Heller held that the Second Amendment right is individual, and not limited to the context of an organized, “well-regulated militia.” In 2010, the Court held in McDonald that the right to bear arms applies to the states, not just against the federal government. Both Heller and McDonald addressed the context of keeping a firearm for self-defense in the home. But in the 2022 case of Bruen, the Supreme Court extended that right beyond the home, to include carrying a firearm in public, at least under some circumstances. State courts and legislatures are still grappling with the consequences of that decision.

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pexels-rodnae-productions-6069522-scaledMassachusetts has a fraught history with clemency and has strongly disfavored this post-conviction remedy for decades. Last year, however, there was a slight uptick in the number of clemency grants: Governor Charles Baker approved 3 commutations for Thomas Koonce, William Allen, and Ramadan Shabazz and 10 pardons 

 Article 73 of the Amendments to the Constitution of the Commonwealth vests clemency power in the governor. There are two forms of clemency: commutation and pardon. A commutation is a reduction in sentence, which means the convicted individual faces a shorter period of incarceration than originally mandated. A pardon forgives the underlying offense, which means the individual’s conviction is erased. Although clemency power technically vests in the governor, there are multiple entities involved in the decision-making process.  CONTINUE READING ›

Man in yellow shirt being patted down by police officerThe use of “patfrisk” or “stop-and-frisk” techniques by police is a serious—and, in some communities, alarmingly frequent—intrusion on personal liberty and dignity. In Commonwealth v. Karen K., the Massachusetts Supreme Judicial Court (SJC) considered the case of a sixteen-year-old African-American girl stopped and patfrisked by Boston police, who discovered a loaded firearm in the waistband of her pants. The case provided an opportunity for the Commonwealth’s highest court to revisit some of the same highly charged questions of constitutional law at play in their controversial and fractured 2021 decision in Commonwealth v. Sweeting-Bailey, which we previously discussed on this blog. 

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Collegepexels-photo-532001s and universities are starting their fall semesters, and orientation for incoming freshmen is well underway at many schools. One area that is not likely to be covered in orientation is students’ rights in encounters with police. While most students go through their entire college career without interacting with police, if you do, you should know what rights you have. This blog will discuss those rights in the context that is the most likely one where students might interact with police (sexual misconduct matters), but the rights you have apply to any interactions, on or off campus. You should know those rights. Just as important, you should know the limits of those rights.   CONTINUE READING ›

capitol-building-415839_1920The majority of adolescents in Massachusetts, at some point, engage in behaviors that could subject them to delinquency proceedings in Juvenile Court. Although most of those adolescents are unlikely to engage in that type of behavior more than once or twice, even those who are otherwise not at risk for reoffending are significantly more likely to reoffend once they are arrested, charged, and processed in juvenile court.

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