When Is An Unloaded Gun An Unloaded Gun?

We pay the police to exercise discretion.  This means, in many cases, we expect young men, usually in their early 20s, with perhaps a year of training, to get it right 100% of the time.  We expect them, often with only a high school education,  to deal with complex situations puzzling to people with doctorates in psychology or sociology, and to successfully resolve them.  Above all, we expect them to apply the law and interpret the Constitution in ways that confound scholars, lawyers and judges, and we expect them to do it in seconds, under stress, and sometimes under fire.

What is most amazing is that they so often get it right.  However, sometimes, they get it wrong, as in this case.  The question:  When is a gun loaded?  A great many people seemed unable to answer that question.  The Volokh Conspiracy (if you don’t know this blog, you should) explains:

The case is State v. Dor (N.H. May 7, 2013):

On May 8, 2012, police searched the defendant’s vehicle and found a .40 caliber semi-automatic pistol adjacent to a loaded magazine in the vehicle’s glove compartment. The pistol did not have a cartridge in the chamber or a magazine in the magazine well.

The State charged the defendant with a class A misdemeanor for ‘knowingly carry[ing] a loaded pistol as defined in RSA 159:4 in a vehicle without a valid license….’ … RSA 159:4 provides, in pertinent part:

No person shall carry a loaded pistol or revolver in any vehicle or concealed upon his person, except in his dwelling, house or place of business, without a valid license…. A loaded pistol or revolver shall include any pistol or revolver with a magazine, cylinder, chamber or clip in which there are loaded cartridges.

The defendant argues that ‘with’ in the second sentence should be interpreted narrowly as “joined to,” Webster’s Third New International Dictionary 2626 (unabridged ed. 2002), so that a ‘loaded pistol or revolver’ encompasses only a firearm that contains one or more cartridges. The State counters that ‘with’ should be interpreted broadly as ‘denoting nearness, agreement, or connection,’ Webster’s New Dictionary and Thesaurus 625 (1990), so that a ‘loaded pistol or revolver’ encompasses a firearm that contains no cartridges but is located near a loaded magazine or clip.

Put aside, for now, the fact that “clip” is incorrect terminology, often wrongly substituted for the correct term: magazine.  The only currently manufactured, widely available firearm that actually uses a clip is the M1 Garand battle rifle.  Let’s review.  A man was arrested for possessing a loaded firearm despite the fact that the chamber of his semiautomatic pistol was empty–no cartridge was in it–and its magazine was not inserted in the gun.  There was no way, absent fully seating a loaded magazine and chambering a round (or manually inserting a single cartridge into the chamber), that the gun could possibly be fired.  This would seem, to rational people, to be a textbook example of an unloaded gun.  Fortunately, the court agreed:

Furthermore, we reject the State’s reading of RSA 159:4 because it could render the statute unconstitutionally vague. A criminal statute is void for vagueness when it forbids or requires the doing of an act in terms so vague that men of ordinary intelligence must necessarily guess at its meaning and differ as to its application. Under the State’s reading, a person of ordinary intelligence would have to guess at how “near” a pistol or revolver must be to a loaded magazine or clip to constitute a violation of RSA 159:4. In contrast, interpreting a “loaded pistol or revolver” as a pistol or revolver containing a cartridge in any position from which it can be fired eliminates the uncertainty: a pistol or revolver either contains a cartridge in such a position or it does not….

[I]n this country, ownership and use of standard pistols and revolvers is not only widespread and generally accepted as lawful, but also implicates constitutional rights, see U.S. CONST. amends. II, XIV; N.H. CONST. pt. I, art. 2–a. [Footnote: See District of Columbia v. Heller, 554 U.S. 570, 635–36 (2008); McDonald v. City of Chicago, Ill., 130 S.Ct. 3020, 3026 (2010); see also Kachalsky v. County of Westchester, 701 F.3d 81, 89 (2d Cir.2012) (“What we know from [Heller and McDonald] is that Second Amendment guarantees are at their zenith within the home. What we do not know is the scope of that right beyond the home and the standards for determining when and how the right can be regulated by a government…” Hightower v. City of Boston, 693 F.3d 61, 73 (1st Cir. 2012) (concluding that “the government may regulate the carrying of concealed weapons outside of the home”); Moore v. Madigan, 702 F.3d 933, 942 (7th Cir. 2012) (stating that “[t]he Supreme Court has decided that the [Second Amendment] confers a right to bear arms for self-defense, which is as important outside the home as inside”).]

For these reasons, we interpret RSA 159:4 narrowly so as to set forth a clear demarcation between that conduct which is allowed and that which is prohibited. Cf. [Staples v. United States, 511 U.S. 600, 614 (1994)] (“If we were to accept as a general rule the Government’s suggestion that dangerous and regulated items place their owners under an obligation to inquire at their peril into compliance with regulations, we would undoubtedly reach some untoward results.”); Hoffman Estates v. Flipside, Hoffman Estates, 455 U.S. 489, 499 (1982) (“[P]erhaps the most important factor affecting the clarity that the Constitution demands of a law is whether it threatens to inhibit the exercise of constitutionally protected rights.”).

So, the court agreed that an unloaded gun is an unloaded gun.  The mere proximity of ammunition, whether loose or loaded into a magazine, does not magically cause an unloaded gun to be loaded unless a human being actually puts ammunition into that gun in such a way that it can be fired.  This doesn’t seem a difficult concept.

Here’s the problem: this case should never have been brought.  The criminal justice system failed on multiple levels.  The system of checks and balances did not work.

The arresting officer should never have made the arrest.  Clearly, the gun was not loaded, by any practical interpretation of law or common sense.  That a police officer would think this a violation of the law suggests faulty training, faulty thinking, a lack of understanding of how to apply the law, or a combination of these.

The officer’s first line supervisor should have caught this problem and corrected it when he read and approved the officer’s report.  Supervisors are supposed to be experienced, calm and thoughtful.  They are supposed to recognize when their young subordinates are being overly aggressive.

The prosecutor should have immediately recognized this as a false arrest.  Perhaps the officer involved was well intentioned and made an honest mistake.  But in any case, the prosecutor should have dismissed the case and discussed the correct meaning of the law with the police to ensure no such cases were filed in the future.

The judge that initially heard the case should have dismissed it with prejudice.  This is not a difficult interpretation.  Clearly, if there is no magazine in a semiautomatic pistol, and no round in the chamber, it cannot, under the law, be loaded.  Indeed, the law is a bit vague, but a judge should be able to understand not only the language of a law, but the intent of the legislators that wrote it.

The lesson of this little morality tale is that gun owners cannot expect even the law to keep them safe from false arrest and prosecution.  I don’t know if the officer involved simply made a mistake in good faith, or whether he had anti-gun sentiments, but the result was the same for the unfortunate gun owner.

Fortunately, most police officers, and I speak of the officers that actually do the work of policing, not administrative types, are not anti-gun.  In March of 2014, PoliceOne.com conducted a survey of law enforcement officers.  The results:  

Only 2.7% thought a federal ban on the manufacture and sale of magazines holding more than 10 rounds of ammunition would reduce violent crime.  Seventy-one percent though it would have no effect on reducing violent crime and more than 20% thought it would have a negative effect.

A federal ban on the manufacture and sale of semiautomatic rifles–so-called “assault weapons” was also not considered a valid way to reduce violent crime.  Seventy-one percent thought it would have no effect, 20.5% thought it would have a negative effect, and 6% thought it might have a “moderate” effect.

About 90% of officers felt that the presence of armed citizens at the beginning of an active shooter incident would reduce casualties.

More than 80% support arming school teachers and administrators that volunteer to carrying guns at work.

There are a number of other interesting questions and results in the survey, but the trend is clear: the overwhelming majority of police officers support the Constitution and have no difficulty with law-abiding citizens carrying firearms.  But again, some obviously do not agree, and one never knows which of these officers will be interacting with them and which will think an obviously unloaded gun to be loaded.

Anyone carrying a firearm must always do their best to avoid calling attention to themselves, and must always do their best to avoid any kind of trouble.