A Dark Night Falls Over Aurora, Colorado

Despite having been involved with a number of high-profile murder-insanity defenses, I’m going to hold off on sharing my related thoughts and opinions in connection with the Aurora, Colorado movie-theater atrocity in which 12 persons were killed and 58 wounded allegedly by lone gunman James Holmes, out of respect for the victims and in deference to the raw emotions of family members so obviously and unalterably affected by this senseless act. I’m also holding back my overall opinions about the case from the perspective of a long-time Massachusetts-based criminal defense attorney because it’s way too premature, and the data too incomplete, to be offering any opinion germane as to such issues as Holmes’ competency to stand trial or his possible lack of criminal responsibility. Time and extensive psychiatric testing will determine all of that. Until then, in my opinion, focus and attention is properly on the grieving families and hoped-for recovery of the surviving victims.

This all said, though, as a state and federal criminal defense attorney whose practice includes defending firearms cases, I am getting questions about gun and ammunition laws arising not only out of Holmes’ Colorado murder case (People v. Holmes, 12-cr-01522, 18th Judicial District Court, Colorado), but also regarding Timothy Courtois of Biddeford, ME, who was arrested Sunday morning allegedly speeding down I-95 at 112 m.p.h. with an AK-47 and several other weapons in his vehicle, along with press clippings pertaining to the Colorado shootings. Courtois later claimed to have brought a gun to a Maine screening ofThe Dark Knight Rises, and a search of his home allegedly revealed several additional weapons, including a banned fully automatic assault rifle and 8,000 to 10,000 rounds of ammunition.

The first question I’ve been asked is whether it was lawful for Holmes to possess the AR-15 assault rifle with (100 round) drum magazine, the Glock .40 caliber pistol with extended (40 round) magazine, and the shotgun allegedly used in his purported shooting spree. The general answer is that under the federal assault weapons ban that expired on September 13, 2004, it would not have been, but today in Colorado it was legal for Holmes to possess the weapons he allegedly brought to the Century 16 Theater for the midnight showing of The Dark Knight Rises. (Without going into the minutiae of the alleged facts and all the relevant gun laws, it may be that at most, under CO law, Holmes might be guilty of possession of a concealed weapon without a permit to carry, which is only a misdemeanor.) In Massachusetts, where the majority of my criminal defense practice is based, the answer is different because it would not be lawful to possess the AR-15, or the large capacity feeding devices (the 100 round drum and the 40 round magazine). M.G.L. ch. 14 § 131M. The penalty here in Massachusetts for a first offense involving either is a fine of $1,000 to $10,000 or imprisonment for 1 to 10 years, or both.

Possession of a shotgun or Glock in Massachusetts is subject to possessing a license to carry (LTC) and an appropriate firearms identification card (FID). The penalty for carrying or possessing without the appropriate licenses in Massachusetts is 2½ – 5 years in prison, or 1½ – 2½ years in the HOC. M.G.L. ch. 269 § 10(a). Regarding the allegation that Holmes also possessed in excess of some 6,000 rounds of ammunition, it is unlawful to possess any amount of ammunition in Massachusetts without a FID card, the penalty for which is up to 2 years in jail or the HOC or a fine of up to $500. M.G.L. ch. 269 § 10(h)(1). It is also illegal to utilize body armor during the commission of a felony in Massachusetts under M.G.L. ch. 269 § 10D. Were the body armor Holmes was purportedly wearing at the theater early last Friday to meet the MA statutory definition (i.e. body armor, so-called, or any protective covering for the body or any parts thereof, made of resin-treated glass-fiber cloth, or of any other material or combination of materials, designed to prevent, deflect or deter the penetration thereof by ammunition, knives or other weapons) he would also be facing 2½ to 5 years in prison or 1 to 2½ in the house of correction . Clearly, Holmes faces much steeper penalties, including a possible death penalty, for the multiple counts of murder and assaultive conduct he allegedly engaged in. However, sticking with the firearms and ammunition offenses alone, he could also face a number of federal firearms charges under both 18 U.S.C. §§ 922 and 924. The applicability of charges under § 922 mostly relate to the manner and method of the underlying firearms purchases. For example, were it to be determined that Holmes made false statements in connection with the purchase of the firearms involved, whether here in Massachusetts or in Colorado, he would be facing up to 10 years in federal prison under both 18 U.S.C. 922(a)(6) and 922(a)(2). (Up in Maine, if it turns out that Courtois did, in fact, as reputed, also possess a fully automatic machine gun, he would be facing up to 10 years in federal court under both 18 U.S.C. 922(o) and 924(a)(2).) The penalties for how firearms are actually used are even stronger in federal court, where Holmes could face 5, 7, 10, 25, or 30 year consecutive sentences under 18 U.S.C 924(c) for carrying or using a firearm in connection with a crime of violence and death, life, or any term of years for causing death during a 924(c) violation, under 18 U.S.C. 924(j).

Obviously there is already a good deal of debate regarding the strength of America’s gun laws in the wake of the Colorado tragedy. That, too, is a topic for another day/discussion. Whether or not the assault weapons ban will ultimately be reinstituted by Congress, or whether Congress will defer the decision to the individual states, or "pass" on the issue altogether is yet to be determined. What is clear, though, is that Colorado prosecutors will have multiple charging options in Holmes’ case based on the applicable laws that currently exist at both the state and federal levels. While it does nothing to ameliorate the profound national tragedy in which Aurora, Colorado, and by extension, our Nation, finds themselves immersed, I hope that shedding a little light on our current firearms laws will help those law abiding citizens of Massachusetts who do possess firearms to continue to do so responsibly, and perhaps encourage some of my prospective clients to think twice before arming themselves in connection with any unlawful activity. Let’s leave the gun crimes to make-believe movie villains - anything else is a real-life tragedy.

If you have been accused of a crime and you need a lawyer to represent you please contact Brad Bailey at 781-589-2828