Opposition Brief — Armando Lopez, Petitioner v. Massachusetts

No. 18-8739

In the

Supreme Court of the United States

_________________

ARMANDO LOPEZ,

Petitioner,

v.

MASSACHUSETTS,

Respondent.

_______________

On Petition For Writ Of Certiorari

To The Massachusetts Appeals Court

_______________

BRIEF IN OPPOSITION

_______________

MAURA HEALEY

Massachusetts Attorney General

September 9, 2019

DEAN A. MAZZONE*

Assistant Attorney General

OFFICE OF THE MASSACHUSETTS

ATTORNEY GENERAL

One Ashburton Place

Boston, MA 02108

Dean.Mazzone@mass.gov

(617) 963-2224

* Counsel of Record

i

QUESTION PRESENTED

In a prosecution for unlawfully possessing a firearm and ammunition, may a

State place on the defendant an initial burden to produce some evidence in support

of the affirmative defense of authorization, where, once that initial burden of

production is met, the burden shifts back to the State to prove beyond a reasonable

doubt that the possession was unauthorized, consistent with due process?

ii

TABLE OF CONTENTS

Page

QUESTION PRESENTED ......................................................................................... i

TABLE OF AUTHORITIES ..................................................................................... iii

OPINIONS BELOW .................................................................................................. 1

STATEMENT ............................................................................................................. 1

REASONS FOR DENYING THE PETITION .......................................................... 6

I.

There Is No Split of Authority on the Federal Question Presented by

Petitioner. ...................................................................................................... 8

II. The Massachusetts Appeals Court’s Decision Was Correct. ..................... 12

CONCLUSION......................................................................................................... 19

iii

TABLE OF AUTHORITIES

Cases

Chace v. Curran,

71 Mass. App. Ct. 258 (2008) .................................................................................. 2

Colon v. Massachusetts,

552 U.S. 1079 (2007). ............................................................................................. 5

Commonwealth v. Alvarado,

423 Mass. 266, 667 N.E.2d 856 (1996) .......................................................... 16, 17

Commonwealth v. Colon,

449 Mass. 207, 866 N.E.2d 412 (2007) .............................................................. 4, 5

Commonwealth v. Gouse,

461 Mass. 787, 965 N.E.2d 774 (2012) ................................................................ 17

Commonwealth v. Jones,

372 Mass. 403, 361 N.E.2d 1308 (1977) ...................................................... passim

Commonwealth v. McNeil,

337 A.2d 840 (Pa. 1975) ......................................................................................... 9

Commonwealth v. Powell,

459 Mass. 572, 946 N.E.2d 114 (2011) .................................................................. 5

Dowling v. United States,

493 U.S. 342 (1990) .............................................................................................. 15

Gilmore v. Taylor,

508 U.S. 333 (1993) ........................................................................................ 13, 16

Harris v. State,

716 N.E.2d 406 (Ind. 1999) .................................................................................. 11

Head v. State,

221 S.E.2d 435 (Ga. 1975) ...................................................................................... 9

In re Winship,

397 U.S. 358 (1970) ...................................................................................... 4, 8, 16

Johnson v. Wright,

509 F.2d 828 (5th Cir. 1975) .............................................................................. 7, 9

iv

Page

Martin v. Ohio,

480 U.S. 228 (1987) ........................................................................................ 14, 16

Mathews v. Eldridge,

424 U. S. 319 (1976) ............................................................................................. 14

McMillan v. Pennsylvania,

477 U.S. 79 (1986) ................................................................................................ 14

Medina v. California,

505 U.S. 437 (1992) .................................................................................. 14, 15, 18

Morrison v. California,

291 U.S. 82 (1934) .......................................................................................... 17, 18

Mullaney v. Wilbur,

421 U.S. 684 (1975) .......................................................................................... 4, 11

Parker v. Matthews,

567 U.S. 37 (2012) ................................................................................................ 13

Patterson v. New York,

432 U.S. 197 (1977) .............................................................................................. 14

People v. Grass,

79 Misc. 457, 141 N.Y.S. 204 (Co. Ct. N.Y. 1913) ................................................. 6

People v. Henderson,

218 N.W.2d 2 (Mich. 1974) ................................................................................. 7, 8

People v. Williams,

184 Cal. App. 2d 673, 7 Cal. Rptr. 604 (1960) ....................................................... 7

Powell v. Massachusetts,

565 U.S. 1262 (2012).. ............................................................................................ 5

Powell v. Tompkins,

136 S. Ct. 1448 (2016) ............................................................................................ 6

Powell v. Tompkins,

783 F.3d 332 (1st Cir. 2015) ......................................................................... passim

Sellers v. State,

507 So.2d 540 (Ala. Crim. App. 1985).................................................................. 10

v

Page

Smith v. United States,

568 U.S. 106 (2013) ........................................................................................ 13, 16

State v. Beauton,

365 A.2d 1105 (Conn. 1976) ................................................................................... 9

State v. Brust,

974 P.2d 734 (Or. App. 1999) ............................................................................... 10

State v. Hodges,

305 S.E.2d 278 (W. Va. 1983)............................................................................... 11

State v. Paige,

256 N.W.2d 298 (Minn. 1977) ............................................................................ 7, 8

State v. Robarge,

450 So.2d 855 (Fla. 1984) ..................................................................................... 11

Tot v. United States,

319 U.S. 463 (1943) .............................................................................................. 18

United States v. Garcia,

555 F.2d 708 (9th Cir. 1977) ............................................................................ 7, 10

United States v. Mackie,

720 F. App’x 872 (9th Cir. 2018) .......................................................................... 10

Statutes

Mass. Gen. Laws ch. 140, § 129B .................................................................................. 3

Mass. Gen. Laws ch. 140, § 129B(1).............................................................................. 3

Mass. Gen. Laws ch. 140, § 129B(1 1/2)........................................................................ 4

Mass. Gen. Laws ch. 140, § 129C .................................................................................. 3

Mass. Gen. Laws ch. 140, § 129C(d) ............................................................................. 3

Mass. Gen. Laws ch. 140, § 129C(f) .............................................................................. 3

Mass. Gen. Laws ch. 140, § 129C(r) .............................................................................. 3

Mass. Gen. Laws ch. 269, § 10 ................................................................................ 4, 12

vi

Page

Mass. Gen. Laws ch. 269, § 10(a) ............................................................................. 4, 5

Mass. Gen. Laws ch. 269, § 10(h) ...................................................................... 1, 3, 4, 5

Mass. Gen. Laws ch. 278, § 7 .............................................................................. 4, 5, 15

1859 Mass. St. ch. 160 ................................................................................................. 15

Constitutional Provisions

U.S. Const. amend. II ............................................................................................ 18, 19

U.S. Const. amend. XIV ....................................................................................... passim

Art. 14, Massachusetts Declaration of Rights ............................................................ 17

Court Rules

Massachusetts Appeals Court Rule 1:28 ...................................................................... 2

United States Supreme Court Rule 10 ....................................................................... 11

United States Supreme Court Rule 14.1(a) ................................................................ 19

1

OPINIONS BELOW

The opinion of the Massachusetts Appeals Court is not published but is

available at 2018 WL 3651860, and it is reproduced in Petitioner’s Appendix. (Pet.

App. 1a-2a). The order of the Massachusetts Supreme Judicial Court (SJC) denying

review is available at 480 Mass. 1111, 113 N.E.3d 838 (2018), and is also reproduced

in Petitioner’s Appendix. (Pet. App. 3a).

STATEMENT

1. In the course of an investigation of a homicide in the city of Chelsea,

Massachusetts, investigators received information that the murder weapon, a

revolver, and other items associated with the murder were delivered to Petitioner to

avoid their discovery by law enforcement. (Pet. App. 19a-20a). Consequently,

Massachusetts State Police executed a search warrant for Petitioner’s residence in

Revere, Massachusetts. (Pet. App. 20a ). While executing that search warrant, the

police discovered a revolver and ammunition that were not connected to the murder

under investigation but formed the basis of the firearm and ammunition charges for

which Petitioner was tried. (Pet. App. 4a-5a).

On June 23, 2015, in the Superior Court for Suffolk County, Massachusetts, a

jury found Petitioner guilty of one count of unlawful possession of a firearm and one

count of unlawful possession of ammunition, both in violation of Mass. Gen. Laws

ch. 269, § 10(h). (Pet. App. 17a-18a). Petitioner was sentenced to two years in jail,

followed by a two-year probationary term. (Pet. App. 17a-18a).

2

On appeal to the Massachusetts Appeals Court, as pertinent here, Petitioner

argued that the lack of a license is an element of the crime of unlawful possession of

a firearm under Massachusetts law, that the Commonwealth had not proven that

element beyond a reasonable doubt, and that his convictions therefore rested on

insufficient evidence in violation of the Due Process Clause. (Pet. App. 1a-2a, 21a25a).

The Appeals Court rejected the argument in an unpublished decision issued

on August 2, 2018. (Pet. App. 1a-2a).1 On the issue referenced above, the Appeals

Court concluded that Petitioner’s convictions were supported by sufficient evidence.

(Pet. App. 1a). The court held that this result was “controlled in all material

respects,” Pet. App. 1a, by Commonwealth v. Jones, 372 Mass. 403, 361 N.E.2d 1308

(1977), and its progeny, which held that proof of licensure was not an element of the

crime of unlawful possession of a firearm under Massachusetts law. Rather,

licensure was an affirmative defense for which the defendant bears the initial

burden of production; if that is met, the government then bears the ultimate burden

of persuasion beyond a reasonable doubt. See id. at 406, 361 N.E.2d at 1311. Thus,

requiring Petitioner to produce some evidence that he had a valid license—as

relevant here, what is known in Massachusetts as a “firearm identification” or

“FID” card—did not create an unconstitutional presumption of guilt or shift the

1 Decisions released pursuant to the Massachusetts Appeals Court’s Rule 1:28, such as the decision

below, see Pet. App. 1a, “may be cited for [their] persuasive value but … not as binding precedent.”

Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4, 881 N.E.2d 792, 794 n.4 (2008).

3

burden of proof on an essential element of the crime, the court reasoned. (Pet. App.

1a).2 The SJC denied discretionary review on November 8, 2018. (Pet. App. 3a).

Petitioner filed a petition for writ of certiorari in this Court on April 8, 2019.

2. The statute under which Petitioner was convicted provides in pertinent

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 by imprisonment … or by a fine….” Mass. Gen. Laws ch. 269,

§ 10(h) (emphasis added). As pertinent here, section 129C of chapter 140 in turn

states that “[n]o person … shall own or possess any firearm, rifle, shotgun or

ammunition unless he has been issued a firearm identification [“FID”] card by the

licensing authority pursuant to the provisions of section one hundred and twentynine B.” Id. ch. 140, § 129C.3 Finally, section 129B of chapter 140 provides that the

appropriate local licensing authority (generally, the police chief) “shall issue” an

FID card to an applicant “if it appears that the applicant is not a prohibited person.”

Id. § 129B(1).4 Thus, in general, any resident of Massachusetts who is not a

“prohibited person” may apply for and obtain an FID card.

2 The Appeals Court also rejected Petitioner’s other claim on appeal—one of ineffective

assistance of counsel based on a failure to move to suppress evidence discovered during an allegedly

inappropriately executed search. (Pet. App. 1a-2a).

3 Section 129C also includes a lengthy list of special cases to which “[t]he provisions of this

section shall not apply”—that is, for which an FID card is not necessary. Mass. Gen. Laws ch. 140,

§ 129C(a)-(u). These exemptions include, inter alia, transportation of firearms by common carrier,

id. § 129C(d); possession of rifles by nonresidents at a firing range, id. § 129C(f); and possession of

firearms by members of a veterans’ organization on “official parade duty,” id. § 129C(r).

4 “Prohibited persons” include, inter alia, persons convicted of certain crimes, persons with

certain indicators of mental illness or substance abuse, and underage persons. See Mass. Gen. Laws

4

3. The Massachusetts courts have adhered to the rule to which Petitioner

objects since 1977. Construing a different subsection of chapter 269, section 10—

subsection 10(a), which prohibits unlawful carriage—the SJC held in Jones that

“[i]n the absence of evidence with respect to a license, no issue is presented with

respect to licensing. In other words, the burden is on the defendant to come forward

with evidence of the defense. If such evidence is presented, however, the burden is

on the prosecution to persuade the trier of facts beyond a reasonable doubt that the

defense does not exist.” 372 Mass. at 406, 361 N.E.2d at 1311 (emphasis added).5

The SJC further concluded that placing an initial burden of production on the

defendant in this manner did not violate due process, looking to this Court’s

decisions in In re Winship, 397 U.S. 358 (1970), and Mullaney v. Wilbur, 421 U.S.

684 (1975). See Jones, 372 Mass. at 407-09, 361 N.E.2d at 1311-13.

Thirty years later, the identical issue arose with respect to subsection 10(h) of

chapter 269, the same unlawful possession statute at issue in this case. In

Commonwealth v. Colon, 449 Mass. 207, 866 N.E.2d 412 (2007), the defendant

raised the exact argument that Petitioner raises here: that by not introducing

ch. 140, § 129B(1)(i)-(xi). In addition, if a licensing authority has “reliable, articulable, and credible

information” that an applicant may present “a risk to public safety,” it may petition a court for

permission to deny an FID card to a non-prohibited person. See id. § 129B(1½)(a), (d).

5 The SJC relied in part on a general and long-standing statutory presumption in Massachusetts,

set forth at Mass. Gen. Laws ch. 278, § 7 (and dating at least to 1859, see 1859 Mass. St. ch. 160),

stating that “[a] defendant in a criminal prosecution, relying for his justification upon a license,

appointment, admission to practice as an attorney at law, or authority, shall prove the same; and,

until so proved, the presumption shall be that he is not so authorized.” Notably, however, despite

the statute’s apparent indication that a defendant may be required to carry the burden of persuasion

on the affirmative defense of licensure, the SJC has retained the ultimate burden of persuasion on

the prosecution in the context of firearms cases, as explained in the text.

5

evidence regarding his lack of an FID card, the Commonwealth had failed to carry

its burden to prove all essential elements of a violation of subsection 10(h). Id. at

225, 866 N.E.2d at 428. The SJC rejected the argument, relying on Jones to

conclude that the conviction under subsection 10(h) was constitutional. Id. at 226,

866 N.E.2d at 429. This Court denied certiorari. Colon v. Massachusetts, 552 U.S.

1079 (2007).

Four years after Colon, the SJC again considered whether a conviction under

subsection 10(h) of chapter 269 could stand absent proof that the defendant lacked

an FID card. Commonwealth v. Powell, 459 Mass. 572, 573, 946 N.E.2d 114, 118

(2011). And, again, the SJC declined to change its view, noting instead that “[w]e

repeatedly have held that in prosecutions under G.L. c. 269, § 10(a) and (h), the

Commonwealth does not need to present evidence to show that the defendant did

not have a license or FID card because the burden is on the defendant, under G.L. c.

278, § 7, to come forward with such evidence. . . . We have declined to revisit these

conclusions, and find no reason to do so now.” Id. at 582, 946 N.E.2d at 124

(citation and footnote omitted). As in Colon, this Court denied certiorari. Powell v.

Massachusetts, 565 U.S. 1262 (2012).

The defendant in Powell then sought habeas relief in federal court, urging

once again that treating licensure as an affirmative defense to unlawful possession

of a firearm under subsection 10(h) violated due process. The First Circuit affirmed

the district court’s denial of relief. Powell v. Tompkins, 783 F.3d 332 (1st Cir. 2015).

6

The First Circuit first rejected the argument that the SJC had, in effect, misread

the statute by not requiring proof that an FID card was lacking, holding instead

that “[t]he SJC’s exposition represents the very meaning of the statute intended by

the state legislature, and we are duty bound, in no uncertain terms, to follow that

state precedent.” Id. at 340. The First Circuit then looked to this Court’s

“precedent . . . in the field of state law affirmative defenses that fully satisfy the

Winship baseline demand,” and held that precedent “provides ready support for

concluding that the SJC’s due process ruling in Powell’s direct appeal is not

objectively unreasonable.” Id. at 342.

Once again, this Court denied certiorari. Powell v. Tompkins, 136 S. Ct. 1448

(2016).

REASONS FOR DENYING THE PETITION

As set forth above, since 2007 this Court has denied certiorari three times in

various contexts on the precise issue presented by this petition. Nothing has

changed. This petition, like the earlier ones, depends on Massachusetts case law

stretching back over 40 years, and indeed, most of the cases which Petitioner claims

demonstrate a split in authority are from the 1970s and 1980s—with some dating

from much earlier. See Pet. for Cert. 6-9 (citing, inter alia, People v. Grass, 79 Misc.

457, 141 N.Y.S. 204 (Co. Ct. N.Y. 1913)). As part of his claimed split, Petitioner

does not cite to a single case decided since this Court denied certiorari three years

ago in Powell v. Tompkins.

7

In any event, as explained below, no split in authority exists on the due

process question presented by this petition. Though some state courts long ago

construed their state statutes as establishing the lack of a license as an element of

the crime of unlawful possession while others, like the Massachusetts courts,

determined otherwise, that is an issue of state-law statutory interpretation and

presents no federal question. And the few decades-old cases that have found a due

process problem in this context have done so precisely because the state laws at

issue shifted the burden of proof on licensure entirely to the defendant. See United

States v. Garcia, 555 F.2d 708, 711 & n.3 (9th Cir. 1977) (noting that under

California law, “the burden is on the defendant to show that he had a license to

carry the pistol” (citing People v. Williams, 184 Cal. App. 2d 673, 675, 7 Cal. Rptr.

604 (1960)); Johnson v. Wright, 509 F.2d 828, 832 (5th Cir. 1975) (noting that

Georgia statute “impermissibly shifts the burden of proof to the defendant”). But

unlike in those states, Massachusetts, as explained above, has long held that once

the defendant satisfies an initial burden of production with respect to an FID card,

the burden returns to the prosecution to establish, beyond a reasonable doubt, that

possession of the firearm in question was not authorized. See Jones, 372 Mass. at

406, 361 N.E.2d at 1311. On the question whether that arrangement satisfies due

process, there is no split whatsoever—indeed, we are not aware of any case from

any jurisdiction outside of Massachusetts that has even considered it.6

6 Two cases of which we are aware—State v. Paige, 256 N.W.2d 298 (Minn. 1977), and People v.

Henderson, 218 N.W.2d 2 (Mich. 1974)—have construed their state unlawful possession laws

8

The petition should therefore be denied.

I.

There Is No Split of Authority on the Federal Question Presented by

Petitioner.

Petitioner has not identified any actual split among the federal courts of

appeals or state courts of last resort regarding the federal constitutional question of

whether the rule of In re Winship is violated where a state chooses to treat the

existence of a license as an affirmative defense in criminal gun possession cases.7

Indeed, no such split exists. Most of the cases he cites simply reflect differing

results in statutory interpretation, not constitutional analysis. And the remaining

cases are readily distinguishable.

Specifically, Petitioner claims a 40-year-old split between the SJC’s 1977

Jones decision and cases from Pennsylvania, Georgia, Connecticut, and the Fifth

Circuit. Pet. for Cert. 6. But there is no disagreement among these cases on any

federal question. The Pennsylvania case looked to “[t]he structure of the statute

and the nature of the prohibition”—both issues that go to a state court’s

interpretation of state law—to conclude “that the absence of a license is an essential

similarly to Massachusetts’ by holding that a defendant bears a burden of production on the defense

of licensure, and once that burden is met, the prosecution must prove the contrary beyond a

reasonable doubt. See Henderson, 218 N.W.2d at 4 (“[T]he defendant has the burden of injecting the

issue of license by offering some proof—not necessarily by official record—that he has been so

licensed. The people thereupon are obliged to establish the contrary beyond a reasonable doubt.”);

Paige, 256 N.W.2d at 303-04 (same, citing Henderson). Neither case considered any federal due

process issue arising out of that statutory construction.

7 See In re Winship, 397 U.S. 358, 364 (1970) (criminal defendant may not be convicted “except

upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is

charged”).

9

element of the crime.” Commonwealth v. McNeil, 337 A.2d 840, 843 (Pa. 1975).8

Similarly, the Connecticut case interpreted the statute before it to mean “that the

lack of a proper permit is an essential element of the crime charged.” State v.

Beauton, 365 A.2d 1105, 1107 (Conn. 1976). Indeed, Beauton looked for guidance to

McNeil’s “constru[ction of] the provisions of a Pennsylvania statute similar to” the

Connecticut law under consideration, further demonstrating that the basis of the

Connecticut decision was statutory construction, not any federal constitutional

question. Id. at 1107-08. The Fifth Circuit, as noted above, found a due process

violation where Georgia law assigned the burden of proof on licensure to the

defendant, see Johnson, 509 F.2d at 832, but again, that is readily distinguishable

from the Massachusetts regime where, once an initial burden of production is

satisfied, the prosecution must prove lack of authorization beyond a reasonable

doubt.9 And Georgia, following the Johnson decision (but with virtually no

discussion), revised its own interpretation of state law to hold that lack of a license

is an element of the offense. Head v. State, 221 S.E.2d 435, 437 (Ga. 1975)

(overruling previous cases construing the statute differently). Thus, the state

courts of Georgia, like those of Connecticut and Pennsylvania, have simply

8 Having so concluded, the court naturally held that due process required the state to prove

absence of a license—but that is as a consequence of having first held that, as a matter of statutory

interpretation, absence of a license was an element of the crime. See McNeil, 337 A.2d at 843 (“[I]t is

clear that the burden of proving an essential element of the crime may not be shifted to the

defendant.”).

9 Thus, Johnson and the First Circuit’s decision in Powell are not in disagreement, because they

considered different state law regimes in their due process analyses.

10

interpreted their unlawful possession statutes differently than have the courts of

Massachusetts. Such variance among state courts on questions of state law

presents no issue for this Court’s review.

Petitioner also urges that cases from Oregon, Florida, Alabama, West

Virginia, and the Ninth Circuit support his claim of a split. Pet. for Cert. 7-8. But,

again, these cases present no split with the Massachusetts courts on any federal

question. As noted above, the Ninth Circuit case hinged on California law placing

the burden of persuasion of licensure on the defendant—something that

Massachusetts does not do. See United States v. Garcia, 555 F.2d 708, 711 & n.3

(9th Cir. 1977).10 The Oregon case held that the question whether licensure was an

element of the offense must be “determined by examining the language of the

statute in its context and, if necessary, by resort to legislative history and relevant

rules of construction.” State v. Brust, 974 P.2d 734, 737 (Or. App. 1999). Applying

those standard tools of statutory construction, the Oregon court concluded that lack

of a license was an element of the offense under Oregon law. The Alabama, Florida,

and West Virginia cases are similar: they simply hold, as a matter of statutory

interpretation of state law, that licensure is an element of the offense. See Sellers v.

10 As Petitioner correctly and forthrightly observes, however, the Ninth Circuit has since “seemed

to walk back its due process concern over this California presumption[.]” (Pet. for Cert. 8 n.5). See

United States v. Mackie, 720 F. App’x 872 (9th Cir. 2018) (mem.). Although Mackie is an unpublished

decision, its approval in passing of California’s burden shifting structure renders Petitioner’s reliance

on Garcia an even weaker reed on which to rest any purported split.

11

State, 507 So.2d 540, 543 (Ala. Crim. App. 1985); State v. Robarge, 450 So.2d 855,

856 (Fla. 1984); State v. Hodges, 305 S.E.2d 278, 284 (W. Va. 1983).

In sum, courts are not “intractably split” on any constitutional issue. Pet. for

Cert. 5; cf. this Court’s Rule 10. Rather, some jurisdictions have chosen to define

lack of a license as an element of the offense, while other jurisdictions—like

Massachusetts—define authorization (the existence of a license) as an affirmative

defense. And, even if a due process issue could be raised by an “affirmative defense”

jurisdiction placing the ultimate burden of persuasion of authorization on a

defendant, see, e.g., Harris v. State, 716 N.E.2d 406, 411-12 (Ind. 1999) (“We

reaffirm that once the State has established that the defendant carried a handgun

on or about his person, away from his residence or place of business, the burden

then shifts to the defendant to demonstrate that he possessed a valid license.”); cf.

Mullaney v. Wilbur, 421 U.S. 684, 701 (1975) (finding due process violation “where

the defendant is required to prove the critical fact in dispute”), that issue is not

presented here. In Massachusetts, a defendant has only a burden of production on

the affirmative defense of authorization; once that is met, the burden shifts back to

the State, which has the ultimate burden of persuasion to show unauthorized

possession beyond a reasonable doubt. See Jones, 372 Mass. at 406, 361 N.E.2d at

1311; cf. supra at 8 n.5 (noting cases from Michigan and Minnesota adopting a

similar construct). We know of no federal court of appeals or state court of last

resort to have found a due process violation in those circumstances—and Petitioner

12

identifies none. The split on a constitutional question that Petitioner posits is

therefore nonexistent.

Petitioner argues that a decision in his favor on the putative federal question

would be of national importance, given the number of states that currently define

possession of a license as an affirmative defense. Pet. for Cert. 11. Those states,

however, are simply exercising their prerogative to define their own crimes, with

their own respective elements. This Court historically does not—and should not in

this case—intrude on such an essential aspect of state sovereignty, where (as here)

there is no disagreement among the lower courts on any federal question.

Petitioner’s argument therefore supplies no basis for this Court to grant review.

II. The Massachusetts Appeals Court’s Decision Was Correct.

Certiorari should also be denied in this case because the Massachusetts

Appeals Court’s decision was correct. “[T]he SJC has long held” that a firearm

offense under Mass. Gen. Laws ch. 269, § 10 “is a public welfare offense that

imposes a general prohibition against carrying a firearm for which both exceptions

and exemptions may apply in any given case.” Powell, 783 F.3d at 339. One of

these exceptions, possession of an FID card, has been defined as an affirmative

defense, for which a defendant has an initial burden of production, as explained

supra, Part I. Thus, the SJC has long held that absence of a license is not an

element of the unlawful possession offense, but that, once a defendant comes

forward with some evidence of a license, the burden returns to the prosecution to

13

persuade the trier of fact beyond a reasonable doubt that the defendant is not

licensed to possess or carry a firearm and thus has no defense at law. See Jones,

372 Mass. at 406, 361 N.E.2d at 1311.

The Appeals Court’s application of this long-established Massachusetts law

resulted in a proper rejection of Petitioner’s due process claim because this Court

has afforded the States considerable latitude to define the elements and affirmative

defenses of state criminal offenses, and for affirmative defenses, to shift the burden

of production (or proof, though that is not at issue here) to the defendant. See

Smith v. United States, 568 U.S. 106, 110 (2013) (although “the Government must

prove beyond a reasonable doubt ‘every fact necessary to constitute the crime with

which [the defendant] is charged,’ ‘[p]roof of the nonexistence of all affirmative

defenses has never been constitutionally required’”) (alterations in original)

(citations omitted); Parker v. Matthews, 567 U.S. 37, 42 n.1 (2012) (characterizing

as a “truism” the principle that “when the burden of production is assigned to the

defendant, the jury may find the prosecution’s burden of proof satisfied without

introduction of negating evidence, unless the defendant’s evidence is so probative as

to establish reasonable doubt as a matter of law”); Gilmore v. Taylor, 508 U.S. 333,

341 (1993) (“states must prove guilt beyond a reasonable doubt with respect to

every element of the offense charged, but they may place on defendants the burden

14

of proving affirmative defenses”); McMillan v. Pennsylvania, 477 U.S. 79, 85 (1986)

(states may identify the elements of the offenses they wish to punish).

This Court has continually noted “the preeminent role of the States in

preventing and dealing with crime and the reluctance of th[is] Court to disturb a

State’s decision with respect to the definition of criminal conduct and the

procedures by which the criminal laws are to be enforced in the courts, including

the burden of producing evidence and allocating the burden of persuasion.” Martin

v. Ohio, 480 U.S. 228, 232 (1987) (citing Patterson v. New York, 432 U.S. 197, 201202 (1977)); see also Patterson, 432 U.S. at 201 (Court “should not lightly construe

the Constitution so as to intrude upon the administration of justice by the

individual States”). Accordingly, in “assessing the validity of state procedural rules

which, like the one at bar, are part of the criminal process,” this Court has declined

to apply the balancing test of Mathews v. Eldridge, 424 U. S. 319 (1976), instead

holding that a state’s decision does not violate the Due Process Clause in this regard

unless “‘it offends some principle of justice so rooted in the traditions and conscience

of our people as to be ranked as fundamental.’” Medina v. California, 505 U.S. 437,

443, 445-46 (1992) (quoting Patterson, 432 U.S. at 201-02 (citations omitted)).

Medina explained that “[h]istorical practice is probative of whether a

procedural rule can be characterized as fundamental.” 505 U.S. at 446. The history

of the rule at issue here readily shows that it does not run afoul of the principles set

forth in Medina and Patterson. The general rule in Massachusetts that a defendant

15

relying on a license to justify otherwise prohibited conduct must meet at least an

initial burden of production, now codified at Mass. Gen. Laws ch. 278, § 7, has been

codified since 1859. See 1859 Mass. St. ch. 160 (“In all criminal prosecutions, in

which the defendant shall rely for his justification upon any written license,

appointment or certificate of authority, he shall prove the same; and until such

proof, the presumption shall be that he is not so authorized.”); see also Jones, 372

Mass. at 405, 361 N.E.2d at 1310 (explaining that the history extends back even

further with respect to prosecutions for selling liquor without a license). As noted

supra, Part I, some states have taken this approach to their laws governing

unlawful possession of firearms, and others have not. Thus, given Massachusetts’

long and consistent history and the divergence of approaches among the states,

there can be no argument that historical practice supports Petitioner’s view that an

initial allocation of a burden of production to a defendant regarding licensure

violates due process. See Medina, 505 U.S. at 447-48 (noting that “[a] number of

state courts have said that the burden of proof may be placed on the defendant to

prove incompetence [and s]till other state courts have said that the burden rests

with the prosecution,” and thus “[d]iscerning no historical basis for concluding that

the allocation of the burden of proving incompetence to the defendant violates due

process”) (citations omitted).

Nor does “the rule transgress[] any recognized principle of ‘fundamental

fairness’ in operation.” Id. at 448 (quoting Dowling v. United States, 493 U.S. 342,

16

352 (1990)). To the contrary, this Court’s extensive case law on the latitude of

States to allocate burdens with respect to affirmative defenses demonstrates that

the rule at issue here poses no issue of “fundamental fairness.” As the First Circuit

observed in 2015 in rejecting a federal habeas petitioner’s identical due process

challenge to the same statute that is raised here, “between the time of Jones and

[the direct appeal at issue here], the Supreme Court’s precedent has developed

significantly in the field of state law affirmative defenses that fully satisfy the

Winship baseline demand.” Powell, 783 F.3d at 342 (citing cases). For the reasons

explained earlier, supra, at 13-15, that precedent, including this Court’s decisions in

cases such as Martin, Smith, and Gilmore, compels the conclusion that the Appeals

Court’s decision here was correct. Indeed, just as in Powell, here Petitioner has not

“addresse[d] this clear . . . precedent governing affirmative defenses, nor cite[d]

even a single roughly comparable federal case in which a state conviction secured

under a statutory construct that is analogous to Massachusetts law was set aside as

violating the Winship due process demands.” Powell, 783 F.3d at 343.

Petitioner attempts to create uncertainty about the SJC’s treatment of

licensure in the context of firearms convictions by relying upon language that the

SJC used in quite different contexts. Pet. for Cert. 13 (citing, for example,

Commonwealth v. Alvarado, 423 Mass. 266, 269, 667 N.E.2d 856, 859 (1996), for the

proposition that “[c]arrying a gun is not a crime. Carrying a firearm without a

17

license (or other authorization) is.”).11 But the SJC in Alvarado was not asked to

define the elements of, and affirmative defenses to, a charge of unlawful firearm

possession under state law. Rather, Alvarado addressed the very different question

of whether the presence of a firearm, without more, furnished probable cause or

reasonable suspicion sufficient to justify a police officer’s seizure of an individual

under Article 14 of Massachusetts Declaration of Rights. Id. The SJC has since

clarified that its negative answer to the question presented in Alvarado “does not

diminish [its longstanding] conclusion with regard to the essential elements of the

crime [of unlawful firearm possession],” and “has no bearing on the allocations of

burdens at trial.” Commonwealth v. Gouse, 461 Mass. 787, 802 n.17, 965 N.E.2d

774, 787 n.17 (2012). The SJC, thus, has itself confronted the purported

“inconsistency” in its own cases, definitively resolved any confusion, and

unambiguously adhered to its views as to the elements of, and affirmative defenses

to, the unlawful gun possession offense. Id.

Petitioner presents another argument that has been considered and

reconsidered, and always rejected, by courts since the SJC’s decision in Jones.

Petitioner faults the Appeals Court, based on its citation of Jones, for relying on a

test, articulated in Morrison v. California, 291 U.S. 82 (1934), which provides that,

for a state to require an accused to meet a burden of production regarding an

11 The First Circuit correctly rejected this exact argument in the context of a habeas claim arising

under AEDPA in Powell, see 783 F.3d at 340-41, a case on which this Court denied certiorari, as noted

supra, at 6.

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exculpatory fact, “there must be in any event a manifest disparity in convenience of

proof and opportunity for knowledge as, for instance, where a general prohibition is

applicable to everyone who is unable to bring himself within the range of an

exception.” Morrison, 291 U.S. at 90-91. Morrison remains good law; indeed, it was

relatively recently described as “the historical cornerstone of this Court’s decisions

in the area of due process and allocation of the burden of proof.” Medina, 505 U.S.

at 460 (Blackmun, J., dissenting). The SJC therefore correctly relied on Morrison

because it is directly applicable to the issue the court resolved, whereas Tot v.

United States, 319 U.S. 463 (1943), cited by Petitioner (Pet. for Cert. 16-18), is not.12

As the First Circuit has explained, Tot “is ill-fitted to the due process question for

the Massachusetts firearms crime” because Tot involved a “state statutory scheme[]

that relieved the prosecutor from proving an element of the crime” and did not

involve a statutory affirmative defense. Powell, 783 F.3d at 343 n.5 (rejecting

argument that SJC should have followed “the ‘rational connection’ test” under

Tot).13

Finally, Petitioner’s attempt to buttress his claim by adverting to Second

Amendment concerns, see Pet. for Cert. 10-11, 14-15, should be disregarded. No

12 Under the test announced in Tot, “a statutory presumption cannot be sustained if there can be

no rational connection between the fact proved and the ultimate fact presumed, if the inference of

the one from proof of the other is arbitrary because of lack of connection between the two in common

experience.” Tot, 319 U.S. at 467.

13 Petitioner’s vague references to modern technological advances, Pet.

for Cert. 17, are not a

basis to challenge Jones, as the First Circuit found in rejecting a similar challenge in Powell. See

Powell, 783 F.3d at 343. Moreover, there is no reason to doubt that convenience considerations still

19

Second Amendment issue is stated or “fairly included” within the petition’s question

presented, which states only a claim under the Due Process Clause. See Pet. for

Cert. i; this Court’s Rule 14.1(a).14 Nor was any Second Amendment issue

adequately raised below (see Pet. App. 24a), or ruled on by the lower court (see Pet.

App. 1a-2a). Any Second Amendment claim with respect to Petitioner’s conviction

is therefore waived.

CONCLUSION

The petition for a writ of certiorari should be denied.

favor production by the defendant, as it is presumably still the case that “[p]roof of a license by the

defendant . . . would be a very simple task.” Jones, 372 Mass. at 408, 361 N.E.2d at 1312.

14 In contrast, in the Powell litigation, which as noted supra, at 5-6, arose out of the same statute

and presented the same due process issue as this case, both the SJC on direct appeal and the First

Circuit on habeas review discussed at length and rejected a Second Amendment claim. See 459

Mass. at 583-90, 946 N.E.2d at 125-30; 783 F.3d at 343-49. And the question presented in Powell’s

petition for certiorari to the First Circuit (which this Court denied) was: “May a state, in keeping

with the Second and Fourteenth Amendments, punish a person for possessing or carrying a firearm

without proving beyond a reasonable doubt that such possession is unlawful?” Pet. for Cert. in

Powell v. Tompkins, No. 15-6063, at ii.

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Respectfully Submitted,

MAURA HEALEY

Massachusetts Attorney General

________________________________________

DEAN A. MAZZONE*

Assistant Attorney General

OFFICE OF THE MASSACHUSETTS

ATTORNEY GENERAL

One Ashburton Place

Boston, MA 02108

Dean.Mazzone@mass.gov

(617) 963-2224

Counsel for the Respondent

*Counsel of Record

September 9, 2019