Lawyers Journal

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. Truong.²

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 functionality.⁶

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 "loaded."

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 spent.

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, § 7.…

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, § 10(o).⁸

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 the firearm.

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 functional.⁹

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 commonwealth.

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, 915(Mass. 2004).

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 warrant).

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.