The Appeals court on June 22nd decided whether a locked container or secure location satisfied the Gun lock statute in COMMONWEALTH vs. BRANDON LOJKO 77 Mass.App.Ct. 82 (2010)
In deciding the case they stated “We summarize the facts in the light most favorable to the Commonwealth. See Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979). On February 20, 2008, Hyannis police Officer Eugene Desruisseaux was dispatched to the defendant’s residence as a result of a report that the defendant was suicidal and was threatening to harm himself and others with a firearm. After speaking with the defendant, who acknowledged that he had made threats to kill himself, Officer Desruisseaux asked him if he had a firearm. The defendant replied affirmatively and told the officer that the gun was in a cooler located outside. Meanwhile, another officer found a “little Igloo cooler” in the backyard. Upon opening the cooler, the officer found a locked box in which there was a firearm.
The box, which appears to be made for the firearm by the manufacturer, is composed of a plastic-type material and measures approximately ten-by-six inches. The words “Glock ‘safe action’ pistol” are written in raised letters across the front of the box. The box is designed with a small hole, which lines up with the firearm’s trigger guard. Here, the box was found with a cable lock (“a lock mechanism with a cable” attached) threaded through the hole, thereby securing the firearm in the box as well as locking the box itself. There was no direct testimony as to how the police opened the box. The trial judge, however, found that the box and the lock were adequate.
Discussion. In order to prove the offense of improper storage of a firearm, the Commonwealth must demonstrate that the defendant failed to keep the firearm “secured in a locked container” or “equipped with a tamper-resistant mechanical lock or other safety device.” G. L. c. 140, § 131L(a). In this case, we are concerned only with the first method of storing a firearm. The Commonwealth’s theory of culpability was that, even though the handgun was stored in a locked box, the box and the lock were inadequate, and, further, that the gun was not “secure” because anyone could walk away with the cooler in which the gun was hidden or with the locked box itself. The judge adopted the Commonwealth’s latter theory, framing the issue as “whether the gun was maintained in a locked and secured location.” The judge found the defendant guilty on the ground that, “although . . . the gun was locked,” it was not in a “secured location.”
The defendant contends that he was not in violation of the statute because the statute permits the storage of a firearm in “any place” as long as it is “secured in a locked container” (emphasis added). G. L. c. 140, § 131L(a). We agree. In a prior case concerning the improper storage of firearms, we interpreted the word “secured” as indicating that “the container must not merely be locked, but securely locked . . . [i.e.,] maintained in [a] locked container in a way that will deter all but the most persistent from gaining access.” Commonwealth v. Parzick, 64 Mass. App. Ct. 846, 850 (2005). Here, the judge’s guilty finding was not based on any deficiency in the lock or the box. Rather, as we have noted, the finding was based on a failure to keep the box in a “secured location.” However, the fact that the defendant placed the securely locked box in a cooler is of no *85consequence. The judge’s implicit determination that the lock box adequately secured the firearm should have ended her inquiry; no more was required to determine that the defendant had satisfied the requirements of the statute. Although we acknowledge the safety concerns expressed by the Commonwealth, nonetheless, neither the statute nor our case law requires a gun owner who keeps a firearm “secured in a locked container” to also store that container in a secure location. The Commonwealth’s interpretation of the statute is simply too expansive. “[W]e do not ‘read into the statute a provision which the Legislature did not see fit to put there, whether the omission came from inadvertence or of set purpose.’ ” General Elec. Co. v. Department of Environmental Protection, 429 Mass. 798, 803 (1999), quoting from King v. Viscoloid Co., 219 Mass. 420, 425 (1914). Furthermore, to hold the defendant to a higher standard would violate the well-settled principle that “[a] criminal statute must be ‘sufficiently clear to give notice of the prohibited conduct.’ ” Commonwealth v. Dunn, 43 Mass. App. Ct. 58, 59 (1997), quoting fromCommonwealth v. Williams, 395 Mass. 302, 304 (1985). Applying the familiar rules of statutory construction, as well as our reasoning in Parzick, the statutory language at issue here requires only that a gun owner secure a firearm in a locked container such that “all but the most persistent [will be deterred] from gaining access.” Commonwealth v. Parzick, 64 Mass. App. Ct. at 850. Should the Legislature choose to consider imposing stricter storage requirements, it is free to”
The appeals court found that under G. L. c. 140, § 131L(a) the “locked container” and not “secure location” satisfies, again quoting Commonwealth v. Parzick with regard to the “all but the most persistent”.
Attorney Ronald A. Sellon