Loaded owner of unloaded pistol loses on appeal

Gun permit holders who like to tipple now and again, consider yourself warned: A state law that prohibits the carrying of a pistol in public by an intoxicated person applies even when the firearm is unloaded and stored in its case.

In a published opinion on Monday, a three-judge panel of the Minnesota Court of Appeals unanimously rejected an appeal from Bryan Lee Larson of St. Paul, who claimed the law in question — Minn. Stat. 624.7142 — was ambiguous.

“We can discern no reason why the term ‘carry’ in section 624.7142 should not be read according to its plain meaning,” the court said in a nine-page opinion.

Larson’s troubles began in December 2015 after St. Paul police responded to a late-night report of an intoxicated man in an old pistol range located in the basement of the First National Bank building. Larson, who was a leasing agent for the building’s owner, obtained the keys to the shooting range from a security guard, who then called police because he believed Larson was drunk.

According to the criminal complaint, the guard was right.

When police located Larson and two companions, Larson had a .40 caliber Smith & Wesson pistol strapped in his holster and was lying on the floor of the gun range amid “numerous rounds and empty casings,” two semiautomatic rifles, and an empty bottle of champagne.

In a preliminary breath test, he registered a blood alcohol content of .263, which is more than six times the legal limit — .04 — for carrying a pistol in public.

The St. Paul city attorney’s office charged Larson with reckless handling of a dangerous weapon, discharge of a firearm within city limits, and carrying a pistol in public while under the influence of alcohol.

At a stipulated facts trial, Larson was convicted only on the final count. The critical piece of evidence: Security video that showed Larson exiting a vehicle toting his gun bag and then crossing the sidewalk – a public place – before entering the First Bank building for his late night target practice.

On appeal, Larson argued that the term “carry” is ambiguous and, under the rule of lenity, the conviction should be tossed.

Although the statute does not define “carry,” the appeals court panel wasn’t persuaded.

Instead, the court relied on a plain language analysis, citing Black’s Law Dictionary, which defines carry as “to convey or transport,” and the American Heritage Dictionary of the English Language, which defines carry as “to keep or have on one’s person.”

“Because the statute prohibits carrying ‘about’ the person’s clothes or person, this includes situations in which the pistol is unloaded and in a case,” reasoned Judge Lucinda Jesson, who was joined in the opinion by Chief Judge Edward Cleary and Judge Jill Flaskamp Halbrooks .

“We also consider this ordinary usage of ‘carry’ in the full context of the Minnesota Citizens Personal Protection Act to discern its plain meaning,” Jesson continued. “We note that the legislature had the ability to limit the term ‘carry’ by excluding transport of a pistol in a case, when the pistol is unloaded. It did not do so here…We will not add an exception to a statute when the legislature has declined to do so.”

John Arechigo, Larson’s attorney, said Monday he had not yet spoken to his client about the possibility of pursuing further review from the Supreme Court.

“I don’t know if he wants to keep going, but I’m curious whether they would have the same opinion as the Court of Appeals,” said Arechigo.

Arechigo added that Larson was “frustrated” that he was even charged with a crime.

“He felt like he was following the law. He had a valid carry permit and he considers himself knowledgeable on gun laws,” said Arechigo of the St. Paul firm of Arechigo & Stokka. (By coincidence, the firm’s office is located in the First Bank building).

Samuel Clark, the St. Paul city attorney, said the appeals court got it right, both as a matter of law and public policy.

“We thought it was a pretty straightforward case of statutory interpretation and we’re glad the court agreed with us,” said Clark. “The fact that is was published will help police and prosecutors statewide.”

In a brief, Assistant City Attorney Stephen Christie rejected what he referred to as Larson’s “myopic focus” on a different statute that authorizes the public transport of rifles and shotguns so long as they are both unloaded and properly encased.

Christie also sought to highlight the legislative history of the law, which was enacted as part of the Minnesota Citizens Personal Protection Act of 2003.

At a committee hearing at the time, Christie noted, the bill’s chief sponsor, former GOP state representative Lynda Boudreau, said: “We can all agree that no one wants a permit holder to carry a firearm in public after they’ve drinking or using a controlled substance.”

Joseph Olson, a professor emeritus at Mitchell Hamline School of Law and the founder of the Gun Owner’s Civil Rights Alliance (GOCRA), reacted with dismay to the ruling.

“I’ve been doing this gun law stuff for 30 years and I do not know how to draft a statute that the Minnesota Court of Appeals will understand,” Olson said in a phone interview.

On the same day the Legislature enacted the carrying while intoxicated law, Olson noted, it passed a companion amendment — Minn Stat. 624.714 — that bars individuals from carrying firearms in public if they don’t have a valid permit.

That statute addresses an actor who “carries, holds, or possesses a pistol in a motor vehicle, snowmobile, or boat, or on or about the person’s clothes or the person, or otherwise in possession or control in a public place.”

In Olson’s view, the broader language is key to discerning Legislature’s intent because it covers a large number of circumstances with its “magic phrase” — otherwise in possession in a public place. In contrast, he said, the language in the carrying while intoxicated statute is far narrower.

“The legislature passed these two statutes on the same day as part of the same amendment. They are clearly complimentary. They debated these for hours and no one said the language should be the same,” Olson opined.

That narrower language in the carrying while intoxicated statute reflected the Legislature’s desire to create a safe harbor for permit holders who, after a couple of drinks, could be on the cusp of violating the .04 blood alcohol limit, Olson contends.

“This is exactly the conversation that took place in Lynda Boudreau’s office. We have to have a safety zone,” he said.

While prosecutions for carrying while intoxicated are relatively rare, Olson said, the appeals court’s decision still creates “a significant new risk” for permit holders.

He said the decision may prompt gun rights advocates to push for new language to protect permit holders from prosecution in cases where the gun at issue is both unloaded and securely cased.