Discharging a Firearm Within 500 feet of building in violation of MGL c. 269 § 12E is a Strict Liability Offense requiring No Criminal Intent or Mens Rea

• Steven Topazio wrote this March 26, 2020 at 4:45 pm

In Commonwealth v. Kelly (No. SJC-12710) – January 30, 2020, the Supreme Judicial Court affirmed a defendant’s conviction of discharging a firearm within 500 feet of a building, in violation of M.G.L. c. 269 § 12E, and unlawful possession of a firearm, in violation of M.G.L. c. 269 § 10(h).  The court, in this matter of first impression, held that section 12E does not require any mens rea as to the element of discharge and that the trial judge properly declined to instruct on an exemption for temporarily holding a firearm. 

The defendant argued that G. L. c. 269, § 12E, requires proof that he discharged the firearm knowingly. At trial, the defendant also requested the jury be instructed on the statutory licensing exemption set forth in G. L. c. 140, § 129C (m), which permits “[t]he temporary holding, handling or firing of a firearm for examination, trial or instruction in the presence of a holder of a license to carry firearms, or the temporary holding, handling or firing of a rifle or shotgun for examination, trial or instruction in the presence of a holder of a firearm identification card, or where such holding, handling or firing is for a lawful purpose.”  The judge declined to give such an instruction.  

The defendant’s convictions stemmed from an incident where he was showing his father’s firearm to one of his friends and accidentally discharged the gun in his home, shooting his friend in the hand.  On appeal, the defendant argued that the discharge of the gun was accidental and that section 12E includes a mens rea requirement and the judge erred in declining to instruct the jury on an exemption for temporarily holding a firearm. 

General Laws c. 269, § 12E as written does not contain any language specifying a requisite mens rea.  Mens rea is a Latin term meaning “guilty mind”. It refers to the criminal intent that is necessary as an element to be proven in a crime. The mens rea requirement is premised upon the idea that one must possess a guilty state of mind and be aware of his or her misconduct. Actus reus, on the other hand, means “culpable action” and is required to determine whether a crime has been committed.

In Kelly, “The defendant owned a … semiautomatic handgun.” On the date in question, “the victim and several other of the defendant’s friends came to the [defendant’s residence]…. The defendant hoped to sell the firearm to the victim…. The [defendant and the victim] went into [a] bedroom, where the defendant demonstrated various features of the firearm…. Believing that the chamber was empty, the defendant depressed the trigger in order to disassemble the firearm; this discharged a bullet, which struck the victim in the hand.” At his trial, the defendant was convicted of discharging a firearm within 500 feet of a building. On appeal, he “argued that G.L. c.269, §12E, includes a requirement that the discharge be done knowingly [a mens rea requirement], and that there was insufficient evidence to show [such] knowledge.” In its decision adverse to the defendant, the SJC stated that because there was no evidence that the defendant discharged his weapon knowingly, and because G.L. c.269, §12E, “does not contain any language specifying a requisite mens rea,” “we must determine whether, in enacting it, the Legislature intended to create a strict liability, public welfare offense.”

The court reasoned that it is important to note that the statute at issue (G. L. c. 269, § 12E ) only criminalizes discharges within 500 feet of a dwelling or building in use, not within 500 feet of any building.  The court found that this indicates that the Legislature intended to reduce the risk of injuries to people who might be nearby, a risk that regrettably came to fruition here.  The statute was found to be consistent with a public welfare offense because it punishes risky behavior, not behavior that necessarily has caused a harm. As such, the Court concluded that the Legislature did intend to create such an offense. The Court explained that so-called “public welfare statutes” do not “criminaliz[e] conduct that already has resulted in harm, [but rather] criminalize behavior that ‘create[s] the danger or probability of it which the law seeks to minimize.’ Morissette [v. United States, 342 U.S. 246,] 255-256 [1952].”

In the mid-Nineteenth Century, legislatures in the United States began imposing strict liability for certain offenses in the areas of public health and safety.  See Morissette v. United States, 342 U.S. 246, 256-257 (1952) (collecting cases from Nineteenth and Twentieth Centuries); Commonwealth v. Mixer, 207 Mass. 141, 142–143 (1910) (same).  These offenses came to be known as “public welfare offenses.”  Public welfare statutes “[t]ypically . . . regulate potentially harmful or injurious items.”  Staples v. United States, 511 U.S. 600, 607 (1994).  Rather than criminalizing conduct that already has resulted in harm, these statutes criminalize behavior that “create[s] the danger or probability of it which the law seeks to minimize.”

The SJC also opined that the activity regulated by G.L. c.269, §12E, “falls outside the scope of the Second Amendment.” The Court stated that in District of Columbia v. Heller, 554 U.S. 570, 632-633 (2008), the United States Supreme Court “explicitly distinguished between laws that infringe on the right to bear arms for self-defense, which implicate the Second Amendment, and laws similar to the one at issue here, which do not.”