Appeals court hears argument that trial counsel failed to warn OUI defendant about lifetime firearms ban

Neil Tassler, counsel for the appellant in Commonwealth v. Ehrler (24P983), told the Massachusetts Appeals Court that trial counsel erred by not advising his client about the risk that a guilty finding on an OUI-related misdemeanor would trigger a permanent bar on firearm possession. "A continuance without a finding would have avoided the dire consequences that Mr. Ehrler faces — the permanent loss of his second amendment rights," Tassler said during oral argument, urging the court to treat the failure to advise the client about that consequence as ineffective assistance of counsel.

The issue, Tassler said, is whether Padilla-style advice obligations (Padilla v. Kentucky) extend to firearm-disability consequences. He acknowledged existing Massachusetts precedent — including Indelicato and Lankowski — but told the court those cases did not control because the law on firearms possession after Bruen and Heller has changed the stakes for defendants. "Since 1968," Tassler argued, "any individual who has a conviction for a state misdemeanor that carries more than 2 years potential incarceration is permanently disbarred from the possession of firearms," and failing to advise a client of that risk is analogous to counsel failing to warn about immigration consequences.

Assistant District Attorney Zach Groovy, arguing for the Commonwealth, urged the court to follow the established line of Massachusetts cases that treat firearms-disability consequences as collateral and not the kind of direct consequence that triggers a Padilla duty. "This court has been pretty clear since 1996 ... that this is wholly collateral to this issue," Groovy said, citing Indelicato and Commonwealth v. Rodriguez and arguing Padilla should remain limited to deportation contexts. The Commonwealth also contested many of the factual premises of the ineffective-assistance claim, including whether evidentiary material such as a booking video or colored booking photo would have changed the trial outcome.

The panel questioned the parties on when and how a continuance without a finding would have been offered and whether a chief could have denied licensing on suitability grounds even absent a conviction. The court also probed how the claimed prejudice could be shown on this record if evidence of intoxication presented at trial was minimal. Attorneys for both sides also argued about whether counsel had the booking video and what disclosures were actually made to the trial court.

The court took the arguments under advisement after completing both sides’ presentations. No decision was announced at argument.