Massachusetts Legal Developments Blog

Commonwealth Ruling Sets Limits on Constructive Possession Firearm Law


A case decided by the Commonwealth earlier this year in May demonstrates the breadth, and the limits, of Massachusetts firearm laws. The case specifically dealt with Massachusetts General Law chapter 269, section 10(a), which establishes that it is a crime to possess or constructively possess a firearm without having a license to carry such a firearm. It is important to note that constructive possession does not mean actually holding or touching the firearm, it means that the person being charged had knowledge of the firearm’s presence and also had the ability to exercise control over the firearm, and the intent to do so. Simply put, under the law, a person can be charged with a crime punishable by imprisonment if the facts suggest that he or she had a close enough connection to control a firearm, and the intent to do so, even if he or she did not physically have the firearm in his or her hands or on his or her body.

There are limits to the law, however, as demonstrated in Commonwealth v. Eric Romero. In that case, Eric Romero had driven his car to his girlfriend’s house in Waltham, to pick her up. As he waited outside for his girlfriend, her brother came to the vehicle with a firearm, and showed it to Mr. Romero. Mr. Romero looked and it and touched it, and then gave it back to his girlfriend’s brother. Mr. Romero’s girlfriend came out after that, and they left for their night on the town. When Mr. Romero and his girlfriend returned, his girlfriend’s brother and his other brothers were outside and wanted to take a drive in Mr. Romero’s car because it was new. The men took a drive in the car, and then returned to the house and sat in the car listening to music. At that time, Officer Dennis M. Deveney, Jr., a Waltham police officer, observed the vehicle and the occupants sitting in a dimly lit street. Officer Deveney could not see the men, or what they were doing, except for their torsos and the tops of their heads. He noticed that the interior dome light was not on, and he decided to park his vehicle behind them for further observation.

Officer Deveney left his vehicle and walked behind Mr. Romero’s vehicle. When he was about three to five feet behind the vehicle, Officer Deveney saw Mr. Romero’s head move side to side, and the passenger look at something in his hands. Officer Deveney shined his flashlight into the vehicle and asked the men what was going on. The passenger—Mr. Romero’s girlfriend’s brother—dropped the object and Officer Deveney shined the flashlight on it, and saw that it was a black handgun. Ultimately, Mr. Romero was read his Miranda warnings and was arrested. In speaking with Officer Deveney, Mr. Romero said that he knew that his girlfriend’s brother had a firearm, but did not know that he had had it in the car. He also said that he had seen it earlier that day. Tests revealed that the firearm was unloaded, but was operable. Mr. Romero was charged, and later convicted, or carrying a firearm without a licensed under GL chapter 269, section 10(a), under the constructive possession theory. He appealed his conviction.

The Commonwealth determined that Mr. Romero was entitled to a directed verdict of not guilty, based on the facts of his case. The Court first analyzed the law, stating that it required the government to prove (1) that the defendant had knowledge of the firearm’s presence in his vehicle; (2) that he had the ability to exercise control over the weapon; and (3) that he intended to do so. After determining that Mr. Romero’s statement that he had seen the gun earlier that day was admissible, the Court determined whether the evidence was sufficient to convict Mr. Romero under the law.

The Court first noted that presence of the gun in the vehicle alone was not sufficient to convict Mr. Romero. The Court stated that first there needed to be evidence that Mr. Romero knew that the gun was in vehicle. The Court affirmed the Appeals Court on this element because Mr. Romero’s girlfriend’s brother had been openly handling the gun in the front seat of the vehicle, which was directly next to him. The inference that he knew about the weapon, the Court also found, was strengthened by the fact that he admitted that he had seen the weapon earlier that day.

Next the Court turned to Mr. Romero’s ability to control the handgun. The Commonwealth found that Mr. Romero did, in fact, have the ability to control the handgun due to his close proximity to it.

Finally, however, the Court examined the requirement that the evidence sufficiently show that Mr. Romero intended to exercise control and dominion over the firearm. On this element, the Court determined that the evidence was insufficient to convict Mr. Romero because there was only evidence that the gun was in a vehicle that Mr. Romero owned. The Court declined to hold this evidence to be sufficient, noting that even if Mr. Romero was present, and had ownership of the vehicle, there were no other facts showing intent, such as if he were wearing a gun holster. The Court also noted that if it were to hold that Mr. Romero intended to control the gun, based on those facts alone, they would be creating a rule of strict liability for owners and operators or vehicles or premises.

If you have been charged with violating firearms laws, you should immediately seek out the assistance of an experienced attorney. Contact the Edward R. Molari Attorney at Law today for a confidential consultation.