The possession of ammunition is proscribed by G.L. c. 269, § 10
(h), which incorporates "cartridge cases" by reference to G.L. c.
140, § 129C, and "ammunition" has recently been specifically
defined in G.L. c. 269, § 10(o), by the Statutes of 2006, chapter
48, section 7. Is a cartridge casing that contains neither primer
nor powder -- and is incapable of being fired, or of discharging a
shot or a bullet -- ammunition? The question has been answered, for
the moment, by the Appeals Court in Commonwealth v.
The Appeals Court has held that it is a crime in Massachusetts to
possess spent shell casings that are incapable of being fired or of
discharging a bullet. So nature lovers, bird watchers, souvenir
hunters, scrap metal collectors and curious people of all ages who
pick up empty shotgun shell casings, or discharged firearm
cartridges, are now subject to criminal prosecutions.
I would propose an alternate reading of the statutes, such that
possession of a discharged shotgun shell or other firearm cartridge
casing, absent primer or powder charge, is not a crime. I would do
so in light of the rule that any ambiguity that might exist in a
criminal statute is to be resolved in favor of a person charged
with a crime,3 and in light of the specific
criminalization of carrying a loaded firearm, enacted with the same
provision that defined ammunition.4
In 1998, the Supreme Judicial Court noted that whether spent or
used casings constituted "ammunition" was an unresolved
question.5 A year earlier, the Appeals Court had noted
that the criminal definition of "firearm" required functionality,
i.e. that the firearm be operable, while the word "ammunition," as
it appeared throughout the statutory scheme, did not require such
In Truong, the Appeals Court reviewed the statutory
scheme and held that, absent a firearms identification card or
firearms license, it is unlawful to possess a shell casing designed
for use in a firearm even if the casing has already been discharged
and has no primer, no charge and no bullet. The court reached this
result by purporting to use ordinary dictionary definitions to
interpret the term "cartridge cases" as part of the statutory
definition of "ammunition."
As noted earlier, the Legislature defined ammunition for the first
time in 2006, inserting 10(o) in the statutory scheme, by the
Statutes of 2006, chapter 48, section 7. At the same time and in
the same section, the Legislature also added a new crime -- that of
carrying a "loaded firearm" - and imposed a "from and after"
sentence for that crime in addition to the sentence for simply
carrying a firearm.7 So, the Legislature in the Statutes
of 2006, chapter 48, both criminalized carrying a loaded firearm
and defined ammunition.
The Appeals Court in Truong never mentioned or discussed
the concurrent criminalization of carrying a loaded firearm, and
arrived at the conclusion that ammunition includes cartridges
incapable of firing. The upshot of Truong is that a
shotgun, rifle or firearm with spent shell casings is
I would suggest that, rather than making criminals of souvenir
hunters and scavengers of all ages, it is more reasonable to
understand the definition of ammunition in light of the "loaded
firearm" and functionality. That is, by a combination of
simultaneous enactment of the two provisions, read in light of the
Appeals Court's earlier concern about the functionality of
ammunition, and leavened with a dose of common sense, a firearm is
loaded only when it has in the chamber or magazine only cartridge
casings capable of being fired, and not those already fired and
Likewise, spent shell casings on the ground or desktop that cannot
discharge a shot or bullet could not suffice to convict a person of
carrying a firearm loaded with ammunition. In fact, the very
definitions of cartridge cases that the Appeals Court drew from the
dictionary should have informed the court that a spent shell casing
is not ammunition.
As the court noted in Truong:
That statute provides, in relevant part, that "[w]hoever owns,
possesses or transfers a firearm, rifle, shotgun or ammunition
without complying with the provisions of section 129C of chapter
140 shall be punished . . . ." G. L. c. 269, § 10(h), inserted by
St. 2006, c. 48, § 6. The term "ammunition" is defined as
"cartridges or cartridge cases, primers (igniter), bullets or
propellant powder designed for use in any firearm, rifle or
shotgun." G. L. c. 269, § 10(o), inserted by St. 2006, c. 48, §
Here, the term "cartridge cases" is not defined by either G. L. c.
269, § 10(h) or § 10(o). The dictionary definitions of "cartridge"
and "shell" indicate that the terms "cartridge case" and "shell
casing" are both used to describe the item that contains the
primer and charge for firearms ammunition. See American
Heritage Dictionary of the English language 287, 1603 (4th ed.
2006) (defining "cartridge" as "[a] cylindrical, usually metal
casing containing the primer and charge of ammunition for
firearms" and "shell" as "[a] metal or cardboard case
containing the charge and primer for a piece of firearms
ammunition"); IX Oxford English Dictionary 674 (1933) (defining
shell as "[a] cartridge case of paper or metal").
The statute criminalizes possession of cartridges and their
component parts, including "cartridge cases, primers (igniter),
bullets or propellant powder." G. L. c. 269, §
The Appeals Court explicitly recognized that a cartridge case is
an object that "contains the primer and charge for a firearm," or
that is a "metal casing containing the primer and charge," yet
concluded that a metal casing not containing either a primer or
charge was "ammunition." It seems this anomalous result would have
been avoided if the court had noted that the definition was enacted
in conjunction with the criminalization of a loaded firearm, and
was intended to give meaning and content to the "loaded" part of
If the statute is looked at in a unitary fashion, the spent shell
casing would not be criminalized, whether within a shotgun or
firearm, or separated therefrom. Likewise, this interpretation
takes into account that the Legislature was enacting a
comprehensive and consistent scheme, and was aware that the Appeals
Court had previously held ammunition need not be
Finally, this interpretation of the statute would have avoided
making criminals of bird watchers who pick up after hunters, or
souvenir collectors and curious teenagers, and would have obviated
this anomalous language that the Appeals Court was compelled to add
in a footnote:
Although we hold that G.L. c. 269, § 10(h), validly criminalizes
unlicensed possession of any individual component of a cartridge,
including shell casings, we note that we do not reach the question
whether, or to what extent, the statute applies to unlicensed
possession of shell casings for innocent purposes, such as for
souvenirs or for resale as scrap metal.10
For now, at least, I've sworn off my old practice of picking up
and finding appropriate receptacles for shotgun shells that I
chance upon when out strolling the fields and forests of the
1A member of the MBA Criminal Justice Section Council
and an assistant district attorney for the Suffolk County District
Attorney's Office. All opinions expressed herein are those of the
author and should not be attributed to the district attorney.
2Commonwealth v. Truong, 934 N.E.2d 1274
(Mass. App. Ct. 2010).
3Commonwealth v. Deberry, 804 N.E.2d 911,
4MASS. GEN. LAWS ch. 269 § 10(O) (2006).
5Commonwealth v. Wilson, 693 N.E.2d 158, 167
(Mass. 1998) (noting question of whether spent ammunition
constituted evidence in plain view during execution of search
6Commonwealth v. Mendes, 687 N.E.2d 275, 276
(Mass. App. Ct. 1997).
7G.L. c. 269, § 10(n).
8MASS. GEN. LAWS ch. 269 § 10(n) (2006)..
9See, e.g., Selectmen of Topsfield v. State Racing
Comm'n, 86 N.E.2d 65, 68-69 (Mass. 1949).
10Truong, 934 N.E.2d at 1278 n.6.