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The ruling clears the way for the prosecution of a Southeast Missouri man found unconscious with a loaded gun in 2006. John L. Richard, of Benton, was found passed out in a chair in his home after he threatened to kill himself -- or make police do it -- after his wife told him she was leaving, according to briefs filed with the Supreme Court. Richard took an unknown amount of morphine and an antidepressant after arguing with his wife, the briefs said.
He was charged with a felony for possessing a loaded gun while intoxicated, but a Mississippi County judge declared the law unconstitutional and dismissed the case before trial in 2008. The state Supreme Court overruled that decision 7-0, saying Missouri has the authority to regulate how residents handle guns.
"Possession of a loaded firearm by an intoxicated individual poses a demonstrated threat to public safety," Judge Richard Teitelman wrote in the majority opinion. He noted several cases in which an intoxicated person was reported to have shot someone.
The law makes it illegal to possess or discharge a gun while intoxicated. There are exceptions for transporting unloaded guns or when a firearm is needed for self-defense. Violations are a misdemeanor, but because Richard's gun was loaded, the charge was elevated to a felony punishable with up to four years in prison.
Public defender Craig Johnston, who represented Richard, did not immediately return a call seeking comment Tuesday. In September, Johnston argued before the Supreme Court that the ban was too broad and threatened to criminalize legal behavior.
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Define "possesion".
What a mess.
I would like to know also.
Did he have it in his hand or was it just in the house.
What a mess, indeed. So what do you do with your guns if you take a pain medication or a psychiatric medication or drink a beer and your wife gets p****d off and calls the cops? The Mississippi County judge was absolutely correct in throwing this out.
We need to get the government the hell out of our houses. Our government has way too much power over our lives. We need a change and the change is a lot less government. Less government = more freedome. More freedom = more happiness.
Depending on the legal definition of "possession" this truly could be problematic as the term is not defined in RSMo 571. This may however be addressed in the ruling. In Supreme Court decisions, constructive possession is as follows, so you can be prosecuted even if you don't have physical possession:
Constructive possession is a legal theory used to extend possession to situations where a person has no hands-on custody of an object. Most courts say that constructive possession, also sometimes called "possession in law," exists where a person has knowledge of an object plus the ability to control the object, even if the person has no physical contact with it (United States
v. Derose, 74 F.3d 1177 [11th Cir. 1996]). For example, people often keep important papers and other valuable items in a bank safety deposit box. Although they do not have actual physical custody of these items, they do have knowledge of the items and the ability to exercise control over them. Thus, under the doctrine of constructive possession, they are still considered in possession of the contents of their safety deposit box. Constructive possession is frequently used in cases involving criminal possession.
I don't drink or use drugs, but for those who do, I can see an arrest and prosecution quite easily for benign activities.
I can see where this law needs to be amended in Jeff City to clarify.
...and so it goes!
I protest! The gun law's are too obscure and subject to abuse. Time for lawmaker's to stand up and protect law abiding citizen's from government intrusion into our homes. Outlaw's don't follow the law's anyway. That is why they can't vote. They will violate any gun law on the book's so why make them? Just another anti-gun anti-freedom tactic, that's why.
It's seem's like an injustice to persecute anybody that has not been convicted of a crime involving USE (not possession) of a firearm by invading thier home or deminishing thier ability to defend themself or thier family etc.
The U.S. constitution was written in tavern's among other places that does not mean it was a criminal act.
How bout a boisterous family party involving BBQ, beer and horseshoes. Cranky neighbor opposed to any celebrations of life calls the county cops saying her neighbors are drunk and disruptive. Can cops restrain residents in their own home while they search for guns, then cite them for possession. Sounds like the answer is yes. These big government judges have got to go.
stevmo,
Absent exigent circumstances such as screams coming from a house, hot pursuit, executing an arrest warrant etc, police would still need to obtain a search warrant via a judge to enter into your home.
It remains a disturbing situation and should be clarified by legislation.
I agree on the need for a different approach by the judiciary.
I used to go to the shooting matches around the area and nearly everyone there had a few beers. I guess we are all criminals now. Just another big, government screw-up, taking away another piece of our freedom.
Did I miss something. If you have guns at home, you can't drink at home, or go home if you've been drinking.
And:
"He noted several cases in which an intoxicated person was reported to have shot someone."
Aren't there exponentially more cases where someone was shot by sober people.
Good lord - let's vote for judges.
everyday you read the paper you see where you lose just a little bit more of your constitutional rights. The state has the protection of the tenth amendment and can refused to obay a federal law. The people have no protection from bad state laws or judges decisions other then the polling box. Remember this decision, and the Attorney General who pushed to have this decision made by the supreme court next election day.
How about "many cases in which an intoxicated person killed someone in a car crash"?
If you've been drinking in you home, and have "constuctive posssesion" of your automobile, will they be taking that, too?
Or arresting you for "constructive drunken driving"?