COMMONWEALTH vs. JAIME CAETANO.
Middlesex. December 2, 2014. - March 2, 2015.
Supreme Judicial Court of Massachusetts
March 2, 2015
470 Mass. 774 (2015)
Present: GANTS, C.J., SPINA, CORDY, BOTSFORD, DUFFLY, LENK, & HINES, JJ.
Firеarms. Constitutional Law, Right to bear arms. Self-Defense. Practice, Criminal, Indictment placed on file.
This court concluded that a stun gun is not the type of weapon that is eligible for protection under the Second Amеndment to the United States Constitution, where, although a stun gun is both dangerous per se and unusual, it was not in common use at the time of the enactment of the Second Amendment; and where the Legislature rationally could ban the use of stun guns in the interest of public health, safety, or welfare. [777-782]
This court, addressing a criminal defendant‘s claim that her homelessness at the time of her arrest for possession of a stun gun should not deprive her of her right to defend herself, concluded that where a stun gun is not the type of weapon that is eligible for protection under the Second Amendment to the United States Constitution, the court need not decide whether a hotel room (such as where the defendant was living at the time of her arrest in a supermarket parking lot) may be treated as a home for purposes of Second Amendment analysis; and further noted that neither the legislative ban on stun guns nor its decisiоn in this case affected the defendant‘s right to bear arms. [782-783]
COMPLAINT received and sworn to in the Framingham Division of the District Court Department on September 30, 2011.
A motion to dismiss was heard by Robert V. Greco, J.; the case was heard by Martine G. Carroll, J., and a motion for sentencing was considered by her.
The Supreme Judicial Court granted an application for direct appellate review.
Benjamin H. Keehn, Committee for Public Counsel Services, for the defendant.
Michael A. Kaneb, Assistant District Attorney, for the Commonwealth.
Keith G. Langer, for Commonwealth Second Amendment, amicus curiae, submitted a brief.
SPINA, J. The defendant, Jaime Caetano, asks us to interpret the holdings of the United States Supreme Court in McDonald v. Chicago, 561 U.S. 742, 791 (2010), and District of Columbia v. Heller, 554 U.S. 570, 635 (2008), to afford her a right under the
1. Background. At approximately 3 P.M. on September 29, 2011, Ashland police officers responded to a call about a possible shoplifting at a supermarket. The manager of the supermarket had detained someone in the store, and he informed police that the defendant and a man with whom she left the store also may have been involved. The manager pointed to a man standing next tо a motor vehicle in the parking lot outside the supermarket. The defendant was seated in the vehicle. Officers approached it. Following a conversation with officers, the defendant consented to a search of her purse. Inside the purse, the defendant had an operational stun gun.2 The defendant told police that the stun gun was for self-defense against a former boy friend. Police charged her with possession of а stun gun in violation of
The defendant challenged the constitutionality of
At a jury-waived trial, the parties stipulated that the device in question was a stun gun regulated by
A hearing was held on the motion. The Commonwealth recommended the imposition of the minimum fine. The defendant proposed a fine less than the minimum. Both the Commonwealth and the judge recognized that the purpose of the hearing was to preserve the defendant‘s right of appеal. After discussion, the judge again placed the case on file over the defendant‘s objection in the belief that this action would preserve the defendant‘s right of appeal.
The defendant filed a timely notice of appeal. We granted her application for direct appellate review.
2. Appellate jurisdiction. As an initial matter, the Commonwealth argues that this appeal is not properly before the court. The basis of this аrgument is that no judgment resulted from the defendant‘s conviction because a conviction placed on file is not a judgment from which an appeal may be taken. Generally, a judgment in a criminal case is the sentence, and a defendant has no right of appeal until after the sentence is imposed. See Com
We have recognized that a defendant has a right to appeal a conviction on file without her consent. Delgado, supra. It was clear to all involved that the defendant wanted to pursue an appeal on the constitutionality of the criminal statute of which she was adjudged guilty, and that she withdrew her consent and moved for sentencing for that purpose. We conclude that the defendant may proceed with her appeal. See id.
3. Discussion. Where we must determine whether the Massachusetts ban on stun guns violates the Second Amendment, we are bound by decisions of the United States Supreme Court on the matter. The Supreme Court recently interpreted the Second Amendment in a historical context that focused on the meaning of various words and phrases in the amendment as they probably were understood and used by Congress at the time of the Second Amendment‘s enactment. In accord with that analysis we must determine whether a stun gun is the type of weapon contemplated by Congress in 1789 as being protected by the Second Amendment.
In Heller, 554 U.S. at 635, the United States Supreme Court held that “[a] ban on handgun possession in the home violates the Second Amendment, as does its prohibition against rendering any lawful firearm in the home operable for the purpose of immediate self-defense.” The Court in Heller was confronted with a total ban on handgun possession in the home, and a further requirement that any lawful firearm kept in the home be rendered inoperable. Id. at 628. The Court reasoned that
“the inherent right of self-defense has been central to the Second Amendment right. The handgun ban amounts to a prohibition of an entire class of ‘arms’ that is overwhelmingly chosen by American society for that lawful purpose. The prohibition extends, moreover, to the home, where the need for defense of self, family, and property is most acute. Under any of the standards of scrutiny that we have applied to enumerated constitutional rights, banning from the home
‘the most preferred firearm in the nation to “keep” and use for protection of one‘s home and family,’ . . . would fail constitutional muster.” (Footnote omitted; emphasis added.)
Id. at 628-629, quoting Parker v. District of Columbia, 478 F.3d 370, 400 (D.C. Cir. 2007). The Supreme Court extended this interpretation of the Second Amendment to the States in McDonald, 561 U.S. at 791. The defendant now urges that the outright prohibition on the private possession of stun guns in Massachusetts violates the right articulated in Heller.4
“Since Heller, ‘[c]ourts have consistently recognized that Heller established that the possession of operative firearms for use in defense of the home constitutes the “core” of the Second Amendment.‘” Commonwealth v. McGowan, 464 Mass. 232, 235 (2013), quoting Hightower v. Boston, 693 F.3d 61, 72 (1st Cir. 2012). Moreover, the Supreme Court said in Heller that the Second Amendment individual right to keep and bear arms is “not unlimited.” 554 U.S. at 595. The Court identified certain examples of lawful prohibitions and limitations on the Second Amendment right including, but not limited to, “prohibitions on the possession of firearms by felons and the mentally ill.” Id. at 626. In addition to the lawfulness of prohibitions against possession of arms by certain persons, the Court recognized the existence of
“another important limitation on the right to keep and carry arms. [United States v.] Miller said, as we have explained, that the sorts of weapons protected were those ‘in common use at the time.’ . . . We think that limitation is fairly supported by the historical tradition of prohibiting carrying of ‘dangerous and unusual weapons.‘”
Heller, supra at 627, quoting United States v. Miller, 307 U.S. 174, 179 (1939).
The conduct at issue in this case falls outside the “core” of the Second Amendment, insofar as the defendant was not using the stun gun to defend herself in her home, see Hightower, 693 F.3d at 72 & n.8, quoting Heller, 554 U.S. at 627, and involves a “dangerous and unusual weapon” that was not “in common use аt the time” of enactment. “From Blackstone through the 19th-century cases, commentators and courts routinely explained that the [Second Amendment] right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.” Heller, supra at 626. Without further guidance from the Supreme Court on the scope of the Second Amendment, we do not extend the Second Amendment right articulated by Heller to cover stun guns.
Here, we are concerned not with ensuring that designated classes of people do not gain access to firearms or weapons generally, but rather with prohibiting a class of weapons entirely. The traditional prohibition against carrying dangerous and unusual weapons is not in dispute. See Heller, 554 U.S. at 627, citing 4 Blackstone 148-149 (1769).
The question of the dangerousness of a weapon is well fixed in the common law through the distinction drawn between weapons that are dangerous pеr se and those that are dangerous as used. See Commonwealth v. Appleby, 380 Mass. 296, 303 (1980) (setting out common-law definitions of dangerous weapons). See also Commonwealth v. Wynton W., 459 Mass. 745, 748-755 (2011) (analyzing term “dangerous weapon” in context of
The statute at issue here explicitly prohibits “a portable device or weapon from which an electrical current, impulse, wave or
We turn next to the question whether a weapon is unusual. Historically, when considering challenges to the ban of dangerous and unusual weapons under the Second Amendment or equivalent State statutes, courts have asked whether the weapon in question is unusual by ascertaining if it is a weapon of warfare to be used by the militia. See Hill v. State, 53 Ga. 472, 474-477 (1874); Aymette v. State, 21 Tenn. 154, 158-160 (1840); English v. State, 35 Tex. 473, 476-477 (1871); State v. Workman, 35 W. Va. 367, 372-374 (1891). The Supreme Court utilized this approach in Miller, 307 U.S. at 178, and approved its use in Heller. The Court said,
“‘In the colonial and revolutionary war era, [small-arms] weapons used by militia men and weapons used in defense of person and home were one and the same.’ State v. Kessler, 289 Ore. 359, 368 . . . (1980) (citing G. Neumann, Swords and Blades of the American Revolution 6-15, 252-254 [1973]). Indeed, that is precisely the way in which the Second Amendment‘s operative clause furthers the purpose announced in its preface. We therefore read Miller to say only that the Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes, such as short-barreled shotguns.”5
Heller, 554 U.S. at 624-625. Thus, the questions whether a weapon is “unusual” and whether the weapon was “in common use at the time” of enactmеnt are interrelated. Id. at 627-628.
The ban on the private possession of stun guns will not burden conduct that falls within the scope of the Second Amendment if
The record is silent as to the development of the stun gun. The record indicates only that stun guns have been available commercially for private purchase since the early 1990s. We note that the first patent for stun gun was filed in 1972. See Weapon for Immobilization and Capture, U.S. Patent No. 3,803,463 (filed July 10, 1972). The recent invention of this weapon сlearly postdates the period relevant to our analysis. We therefore conclude that stun guns were not in common use at the time of the Second Amendment‘s enactment. A stun gun also is an unusual weapon. In her motion to dismiss the complaint against her, the defendant acknowledged that the “number of Tasers and stun guns is dwarfed by the number of firearms.” Moreover, although modern handguns were not in common use at the time of enactment of the Second Amendment, their basic function has not changed: many are readily adaptable to military use in the same way that their predecessors were used prior to the enactment. A stun gun, by contrast, is a thoroughly modern invention. Even were we to view stun guns through a contemporary lens for purposes of our analysis, there is nothing in the record to suggest that they are readily adaptable to use in the military. Indeed, the record indicates “they are ineffective for . . . hunting or target shooting.” Because the stun gun that the defendant possessed is both dangerous per se at common law and unusual, but was not in common use at the time of the enactment of the Second Amendment, we conclude that stun guns fall outside the protection of the Second Amendment. See Heller, 554 U.S. at 622, 627.
The question remains whether the total ban on stun guns has a rational basis. Those who challenge the constitutionality of a statute thаt burdens neither a suspect group nor a fundamental constitutional right bear a heavy burden in overcoming the presumption of constitutionality in favor of the statute‘s validity. See English v. New England Med. Ctr., Inc., 405 Mass. 423, 427, cert. denied, 493 U.S. 1056 (1989). Such is the case before us. For due process claims, the test under “the Federal Constitution is
The defendant does not articulate any basis for challenging the statute undеr the rational basis test. Nevertheless, we note that stun guns deliver a charge of up to 50,000 volts. They are designed to incapacitate a target by causing disabling pain, uncontrolled muscular contractions, and general disruption of the central nervous system. See Amnesty International, Less than Lethal? Use of Stun Weapons in U.S. Law Enforcement, 1-2, 6-7 & nn.17, 18 (2008), available at https://www.amnesty.org/download/Documents/52000/amr510102008en.pdf [https://perma.cc/JK53-XMR3]. It is difficult to dеtect clear signs of use and misuse of stun guns, unlike handguns. Stun guns can deliver repeated or prolonged shocks without leaving marks. Id. at 1-2. The Legislature rationally could ban their use in the interest of public health, safety, or welfare. Removing from public access devices that can incapacitate, injure, or kill a person by disrupting the central nervous system with minimal detection is a classic legislative basis supporting rationality. It is immaterial that thе Legislature has not banned weapons that are more lethal. Mathematical precision by the Legislature is not constitutionally required. See Commonwealth v. McQuoid, 369 Mass. 925, 927-928 (1976). The statute easily passes the rational basis test under both the Federal and State Constitutions.
Self-defense when homeless. Although we already have concluded that the defendant‘s possession of a stun gun was in violation of a statute regulating a weapon not protected by the Second Amendment, we touch briefly on her claim that her
Finally, neither the legislative ban on stun guns nor our decision affects the defendant‘s right to bear arms under the Second Amendment. Barring any cause for disqualification the defеndant could have applied for a license to carry a firearm. See
Conclusion. For the reasons stated above, we hold that
So ordered.