District Court Instruction 7.665: Discharge of a Firearm Within 500 Feet of a Building

Source: Criminal Model Jury Instructions for Use in the District Court
Issued: September 2022
Statute: G.L. c. 269, § 12E

Elements

The Commonwealth must prove three things beyond a reasonable doubt:

• The defendant discharged a weapon;
• The weapon met the legal definition of a firearm (rifle) (shotgun); and
• The discharge occurred within 500 feet of a (dwelling) (building) in use.

Element 1: Discharge

The defendant, whether intentionally or unintentionally, caused the firearm (rifle) (shotgun) to discharge when it was capable of firing or shooting a shot or bullet. The Commonwealth is not required to prove that a shot or bullet was actually released as a result of the discharge.

Strict liability (Note 4): This is a strict liability public welfare statute. No mens rea element. Kelly, 484 Mass. 53, 62 (2020).

Blanks (Note 6): The firing of blanks is prohibited. Stephens, 67 Mass. App. Ct. 906 (2006).

Element 2: Legal Definitions

Firearm: A stun gun or a pistol, revolver or other weapon, loaded or unloaded, from which a shot or bullet can be discharged, barrel length less than 16 inches. G.L. c. 140, § 121.

Rifle: Weapon having a rifled bore with barrel 16+ inches, capable of discharging per trigger pull.

Shotgun: Weapon having a smooth bore with barrel 18+ inches, overall length 26+ inches, capable of discharging per trigger pull.

Starting pistol (Note 5): A starting pistol that fires blanks is a firearm if the barrel plug has been removed making it capable of discharging a bullet or shot. Stephens, 67 Mass. App. Ct. 906, 907 (2006).

Exclusion: The term "firearm" for this statute excludes weapons (i) constructed in a shape that does not resemble a handgun, short-barreled rifle, or short-barreled shotgun (e.g., covert weapons resembling key-chains, pens, cigarette-lighters), or (ii) not detectable by x-ray machines or walk-through metal detectors. G.L. c. 140, § 121.

Element 3: Within 500 Feet of a Dwelling/Building in Use

Distance measurement: 500-foot radius from the point of discharge, measured in a straight line. Mendes, 75 Mass. App. Ct. 390, 394 (2009). Jury may infer from photographs and stipulation that area was "thickly settled" with houses within 100 feet of each other. Forish, 61 Mass. App. Ct. 554 (2004).

"In use" defined: The building must be an active dwelling or building being used by one or more persons. Commonwealth is not required to prove the building was occupied at the precise moment of discharge. Mendes, 75 Mass. App. Ct. 390, 395 (2009). The statute protects "potential occupants of active buildings throughout the whole day and not simply within their formal business hours." Id.

Supplemental Instruction: Consent

If there is evidence that the owner or legal occupant consented in advance to the discharge within 500 feet, the Commonwealth must prove beyond a reasonable doubt that neither the owner nor a legal occupant had consented.

Affirmative Defenses (Note 1)

Section 12E does not apply to:
- (a) Lawful defense of life and property
- (b) Law enforcement officers acting in the discharge of duties
- (c) Persons using underground or indoor target/test ranges with owner/occupant consent
- (d) Persons using outdoor skeet, trap, target, or test ranges with owner/occupant consent
- (e) Persons using shooting galleries licensed under G.L. c. 140, § 56A
- (f) Discharge of blank cartridges for theatrical, athletic, ceremonial, firing squad, or other purposes under G.L. c. 148, § 39

The existence of a statutory exemption is treated as equivalent to an affirmative defense. Kelly, 484 Mass. 53, 67 (2020).

Cases Cited

• Commonwealth v. Kelly, 484 Mass. 53 (2020) (strict liability; affirmative defenses)
• Commonwealth v. Mendes, 75 Mass. App. Ct. 390 (2009) (distance measurement; "in use" definition)
• Commonwealth v. Stephens, 67 Mass. App. Ct. 906 (2006) (starting pistol; blanks prohibited)
• Commonwealth v. Forish, 61 Mass. App. Ct. 554 (2004) (inferring distance from photographs)