District Court Instruction 7.610: Possession of a Loaded Firearm Without a License

Source: Criminal Model Jury Instructions for Use in the District Court
Revised: July 2023
Statutes: G.L. c. 269, § 10(a) (unlicensed possession outside home/business) and § 10(n) (loaded firearm sentencing enhancement)

Structural note: This instruction is read when the complaint charges violations of both § 10(a) and § 10(n). It includes the full charge from Instruction 7.600, with additional elements required by § 10(n). A conviction under § 10(n) requires the defendant also be charged and convicted under § 10(a). Brown, 479 Mass. 600, 604 (2018), citing Loadholt, 456 Mass. 411, 423-424 (2010). The § 10(n) sentencing enhancement does not apply to convictions under § 10(h) or to a loaded rifle or shotgun.

Elements: Unlicensed Possession (§ 10(a))

The Commonwealth must prove four (five) things beyond a reasonable doubt:

• The defendant (A: had an item under their control in a vehicle) or (B: possessed an item);
• The item met the legal definition of a firearm;
• The defendant knew they possessed a firearm; and
• The defendant did not have a valid license to carry a firearm.

Fifth element options (if evidence supports):
- A. (Residence/business) The defendant possessed the firearm outside their residence or place of business.
- B. (Exemption) The defendant did not qualify for a statutory exemption under G.L. c. 140, § 129C.

Additional Elements: Loaded Firearm Enhancement (§ 10(n))

In addition to the four (five) elements above, the Commonwealth must prove two more beyond a reasonable doubt:

• The firearm was loaded with ammunition; and
• The defendant knew that the firearm was loaded with ammunition.

Element 1: Possession

Same as Instruction 7.600. Direct physical control, control in a vehicle, or constructive possession (knowledge + ability + intent to control). Exclusive control not required.

Constructive possession: Costa, 65 Mass. App. Ct. 227, 234 (2005); Sann Than, 442 Mass. 748, 755 (2004).

Guilt by association: Possession not proved simply because defendant was associated with person who controlled the item.

Mere presence not enough: Presence alone insufficient to infer knowledge; must be augmented by additional inculpatory evidence. Romero, 464 Mass. 648, 654 (2013); Brown, 401 Mass. 745, 747 (1988).

Element 2: Legal Definition of Firearm

"Firearm" under G.L. c. 140, § 121:
1. Must be a weapon;
2. Must be capable of discharging a shot or bullet; and
3. Must have a barrel length of less than 16 inches.

"Barrel length" includes the chamber. Jury can determine from inspection; no expert needed. Tuitt, 393 Mass. 801, 810 (1985); Fancy, 349 Mass. 196, 204 (1965). Testimony about "revolver" or "handgun" supports inference barrel under 16 inches. Sperrazza, 372 Mass. 667, 670 (1977).

Element 3: Knowledge

Defendant must have known they possessed a firearm within the common meaning of that term. Commonwealth not required to prove defendant knew item met the legal definition. Marrero, 484 Mass. 341, 346-347 (2020); Sampson, 383 Mass. 750, 762 (1981); Bacon, 374 Mass. 358, 359 (1978); Jackson, 369 Mass. 904, 916-917 (1976); Boone, 356 Mass. 85, 87 (1969); Papa, 17 Mass. App. Ct. 987, 987-988 (1984).

Element 4: Nonlicensure (Post-Guardado)

Commonwealth must prove defendant did not have a valid license to carry. Guardado, 491 Mass. 666, 668 (2023). Applies prospectively and to cases active on direct review as of June 23, 2022 (date of Bruen).

Proof methods: Defendant's statements; certified government records from local PD or Firearms Records Bureau. Confrontation Clause likely prohibits agency certificates without testifying witness. Guardado, 491 Mass. at 695 (Lowy, J., concurring).

Element 5A: Outside Residence or Place of Business

Residence does not include common areas; only areas under exclusive control. Guardado, 491 Mass. at 682-685; Coren, 437 Mass. 723, 734 (2002); Seay, 376 Mass. 735, 743 (1978). Vehicle in residence exemption: only if vehicle is located within or on defendant's residence. Harris, 481 Mass. 767, 780 (2019). This is an affirmative defense. Guardado, 491 Mass. at 683.

Loaded Firearm: Definition

Ammunition: any cartridge or cartridge case, primer (igniter), bullet or propellant powder designed for use in any firearm, rifle or shotgun. G.L. c. 269, § 10(o). A firearm is loaded if ammunition is contained in the firearm or within a feeding device attached to the firearm.

Loaded Firearm: Knowledge Requirement

Commonwealth must prove defendant knew the firearm was loaded. Knowledge can be inferred from circumstantial evidence, including external indications signaling the nature of the weapon.

Insufficient evidence of knowledge:
- Brown, 479 Mass. 600, 608 (2018): magazine inserted and not visible; no other evidence warranting inference
- Galarza, 93 Mass. App. Ct. 740, 748 (2018): same

Sufficient evidence of knowledge:
- Silvelo, 486 Mass. 13, 19 (2020): ammunition clearly visible in chamber given revolver's configuration
- Cooper, 97 Mass. App. Ct. 772, 774 (2020): gun drawn and tucked into armpit; stated obtained for self-protection
- Mitchell, 95 Mass. App. Ct. 406, 419 (2019): reasonable to infer one who brings a gun to a location knows whether it is loaded
- Resende, 94 Mass. App. Ct. 194, 200 (2018): reasonable inference defendant checked if loaded before putting in waistband

Supplemental Instructions

1. Non-Firing Weapon Same as 7.600. Weapon that will no longer fire is not a firearm; but slight repair making it effective again preserves firearm status. Jefferson, 461 Mass. 821, 828 (2012); Colton, 333 Mass. 607, 608 (1956); Bartholomew, 326 Mass. 218, 220 (1950); Raedy, 24 Mass. App. Ct. 648, 652-656 (1987); Rhodes, 21 Mass. App. Ct. 968, 969-970 (1986).

2. Firearms Identification Card An FID card is not the same as an LTC. FID gives right to possess a firearm within residence or place of business only. Does not authorize possession outside. FID is a defense to carrying a rifle or shotgun, but not other firearms. G.L. c. 140, §§ 129B-129D; G.L. c. 269, § 10(a)(5).

3. Knowledge of Licensing Requirement Commonwealth not required to prove defendant knew the law required a license. Evidence of ignorance is not relevant to deliberations.

4. Interstate Transport Exemption (18 U.S.C. § 926A) Same as 7.600. Four conditions: (1) compliant with origin state laws; (2) compliant with destination state laws; (3) weapon unloaded; (4) weapon and ammunition not readily accessible. If evidence supports all four, jury must find not guilty unless Commonwealth proves at least one not met. Harris, 481 Mass. 767, 778 (2019).

5. Expired License Exemption Same as 7.600. Entitled to exemption if license expired and defendant not notified of revocation, suspension, pending revocation/suspension, or denial of renewal. Commonwealth must prove one of: (1) never had valid license; (2) notified of revocation/suspension (other than address change failure); (3) notified of denial of renewal. G.L. c. 140, § 131(m); Indrisano, 87 Mass. App. Ct. 709, 716-17 (2015).

Notes

Sentencing enhancement (Note 12): Section 10(n) provides a sentencing enhancement, not a stand-alone offense. Brown, 479 Mass. 600, 604 (2018); Taylor, 486 Mass. 469, 473-474 (2020). Sentence of up to 2.5 years from and after expiration of § 10(a) sentence.

Lesser included offense (Note 13): Possession of ammunition under § 10(h) is a lesser included offense of unlawful possession of a loaded firearm under § 10(n). Johnson, 461 Mass. 44, 54-55 (2011). When only ammunition is that contained in the firearm, cannot be convicted of both. Id. at 52-53.

Probable cause (Note 9): Possession of a firearm alone, without indication of criminal activity, does not provide probable cause to believe person unlicensed. Couture, 407 Mass. 178 (1990). Additional evidence of criminal activity and flight can establish probable cause. Brookins, 416 Mass. 97, 104 (1993); Edwards, 71 Mass. App. Ct. 716, 719-720 (2008).

Residence/business (Note 10): Extensive case law on scope. Guardado, 491 Mass. at 684; Coren, 437 Mass. 723, 734 (2002); Dunphy, 377 Mass. 453, 458-460 (1979); Domingue, 18 Mass. App. Ct. 987, 990 (1984); Morales, 14 Mass. App. Ct. 1034, 1035 (1982); Samaras, 10 Mass. App. Ct. 910, 910 (1980).

Stun guns (Note 5): Included in firearm definition since 2018. St. 2018, c. 123, § 4.

Flare guns (Note 4): Not a firearm. Sampson, 383 Mass. 750, 753-761 (1981).

Necessity defense (Note 6): Threat of death or serious injury, if direct and immediate, may excuse momentary carrying. Lindsey, 396 Mass. 840, 843-845 (1986); Iglesia, 403 Mass. 132, 135-136 (1988); Franklin, 376 Mass. 885, 888 n.2 (1978).

Notice of affirmative defenses (Note 7): Mass. R. Crim. P. 14(b)(3) requires advance notice. Failure to comply bars reliance on defense.

Ballistics certificate (Note 3): Admission without cross-examination is constitutional error. Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009); Muniz, 456 Mass. 166, 168 (2010).

Constructive Possession Case Summaries (from endnotes)

Sufficient evidence:
- Santos, 95 Mass. App. Ct. 791, 800 (2019): car controlled by defendant, shotgun partially in plain view and within reach, concealment, false info to police, repair of shotgun
- Albano, 373 Mass. 132, 134-136 (1977): gun in plain view, suspicious behavior
- Bailey, 29 Mass. App. Ct. 1007, 1008 (1990): gun in plain view near feet, broken-into car, attempted escape
- Montgomery, 23 Mass. App. Ct. 909, 910 (1986): gun on defendant's side of auto, matching ammunition clip
- Lucido, 18 Mass. App. Ct. 941, 943 (1984): gun in glove compartment with defendant's personal letters
- Donovan, 17 Mass. App. Ct. 83, 85-86 (1983): gun under seat surrounded by defendant's property

Insufficient evidence:
- Brown, 401 Mass. 745, 747 (1988): stolen car, guns under passenger seat, no admissions
- Almeida, 381 Mass. 420, 422-423 (1980): gun inside covered console of borrowed auto
- Boone, 356 Mass. 85, 87 (1969): defendant was passenger, gun under driver's seat
- Hill, 15 Mass. App. Ct. 93, 94-97 (1983): gun inside woman's purse at male passenger's feet