Michigan Court of Appeals Holds Possessing Firearm While Intoxicated Law Constitutional

On October 28th, 2014, the Michigan Court of Appeals held in a criminal case that the crime of Possessing a Firearm While Intoxicated is constitutional and does not violate the Second Amendment's guarantee of the right to keep and bear arms.

In People v Wilder, Docket No. 316220, the Michigan Court of Appeals addressed the issue of whether Michigan's prohibition against possessing firearms while intoxicated violated a person's Second Amendment right to keep and bear arms.

The Court first recited the facts of the case.

Defendant appeals by delayed leave granted her jury-trial conviction of possession of a firearm while intoxicated (PFWI), MCL 750.237. The jury acquitted her of felonious assault, MCL 750.82, possession of a firearm during the commission of a felony (felony-firearm), MCL 750.227b, and domestic violence, MCL 750.81(2). Defendant was sentenced to serve nine months’ probation and 60 days in jail. At trial, defendant herself testified that she was intoxicated and that she briefly possessed a firearm. According to defendant, however, the possession was solely for the purpose of moving the gun for personal safety or precautionary reasons, so that it would not be readily accessible by her domestic partner who was angry at defendant, was familiar with the gun’s location, and who was also intoxicated. This appeal poses the question of whether the state and federal constitutional right to keep and bear arms, US Const, Am II; Const 1963, art 1, § 6, precluded defendant’s prosecution and conviction under MCL 750.237, or minimally requires remand for a new trial, in this as-applied challenge of the statute. We affirm.

This case arises out of a domestic dispute. On July 2, 2011, at about 5:00 a.m., defendant, a retired deputy sheriff, called 911 to report a possible home invasion. A short time later, defendant called police and stated that a response was no longer necessary. The police nevertheless proceeded to defendant’s home to investigate. Two responding state troopers testified that upon their arrival at the home, they found both defendant and her domestic partner, the complainant, to be in an intoxicated state, with defendant being the more intoxicated of the pair. The complainant told the troopers that defendant had threatened and assaulted her. At the scene, the complainant took a preliminary breathalyzer test (PBT), which reflected a blood- alcohol content of 0.13. Defendant refused to take a PBT at the scene; however, she did ultimately submit to a PBT about three hours later at the county jail, which revealed a blood- alcohol content of 0.167.

According to the complainant, defendant was upset over various matters and somewhat angry before defendant retired to the couple’s shared bedroom in the early morning hours of July 2, 2011. The complainant decided to sleep on the living-room couch. The complainant testified that within 10 to 15 minutes, defendant emerged from the bedroom and began hitting and strangling the complainant, yelling for the complainant to get out of the house. The complainant broke free from defendant’s grasp, grabbed a sweatshirt, and then ran to the front door. The complainant indicated at one stage during her testimony that before she exited the home, complainant turned around and was confronted by defendant pointing a handgun at complainant’s chest from a distance of about six inches. Later in her testimony, the complainant explained that complaintant was already outside the home when defendant first brandished the gun, aiming it directly at complainant through a porch screen window or door. The complainant testified that defendant verbally threatened to kill her. While complainant was outside, defendant remained in the home, and the complainant pleaded with defendant for an opportunity to retrieve some pants and her medicine, but defendant refused her request. From outside, the complainant could hear defendant through the screen call 911 and report that an intruder was attempting to enter the home. After police subsequently arrived, the complainant was allowed to retrieve some items from the bedroom. In her bedroom closet, complainant saw the gun that defendant had earlier brandished, and she gave it to the troopers.

Defendant took the stand in her own defense and presented a different account of events than those elicited from the complainant. Defendant testified that she had been drinking alcohol throughout the day on July 1, 2011, and that when the complainant arrived home from work shortly before midnight on July 1, the two drank several beers. Defendant acknowledged that she was intoxicated at the time of the charged offenses, but the complainant was likewise intoxicated. Defendant testified that in the early morning hours of July 2, as the two were consuming alcohol, they discussed various matters, including the possibility of separation. Defendant claimed that the complainant was angry and that the major point of contention between the two stemmed from complainant’s incessant requests or demands for sex, which defendant had been rejecting for some time. Defendant also recounted earlier episodes in the relationship with the complainant in which an angry complainant had smashed defendant’s fishing rod against a wall and threw defendant’s laptop computer to the floor. Given the complainant’s inebriated state, her anger, and her prior acts of property destruction, and while complainant was in the bathroom, defendant moved a handgun she owned from the bottom shelf of her nightstand next to her bed to the complainant’s personal closet in the bedroom, even though defendant had her own closet in the room. According to defendant, complainant was fully aware that the gun was kept on the lower shelf of the nightstand. And defendant explained that she moved the gun because she was fearful that the complainant might use it against her.

When asked on cross-examination why defendant tossed the gun into complainant’s own closet considering the nature of defendant’s fear, defendant claimed that she had to move quickly and complainant’s closet was nearest to the nightstand. Defendant testified that she asked the complainant to leave, but complainant retorted that defendant could not make her leave. Defendant subsequently went to sleep, but was later awakened and frightened by the sound of someone stirring outside of her home. The person demanded to be let in, and defendant, not recognizing the voice at first and not being able to see the individual in the darkness, called 911, as she believed that a home invasion was occurring. Shortly thereafter, defendant discovered that it was the complainant outside of the home, and defendant let her inside. Defendant testified that she then called police to explain that a response was no longer necessary, but the police nevertheless responded. Defendant denied threatening or physically assaulting the complainant, and she denied brandishing the handgun and pointing it at complainant.

Defendant was charged with felonious assault, MCL 750.82, felony-firearm, MCL 750.227b, domestic violence, MCL 750.81(2), and PFWI pursuant to MCL 750.237, which provides in relevant part as follows:

(1) An individual shall not carry, have in possession or under control, or use in any manner . . . a firearm under any of the following circumstances:

(a) The individual is under the influence of alcoholic liquor . . . . 

(c) Because of the consumption of alcoholic liquor, . . . the individual's ability to use a firearm is visibly impaired.

Before trial, defendant moved to dismiss the PFWI charge, arguing that MCL 750.237 was unconstitutional as applied to the circumstances of this case, as it infringed upon her Second Amendment right, as well as her right under Const 1963, art 1, § 6, to keep and bear arms, especially within the confines of her home. Defendant did not assert that MCL 750.237 was facially unconstitutional. The trial court denied the motion, ruling that “given the broad powers of the [L]egislature to pass legislation for the general health, safety and welfare of the public, and combined with the minimalistic nature of the penalty associated therewith, a 90-day misdemeanor penalty, the issue does not raise itself to the level of constitutional scrutiny, as suggested by . . . [d]efendant.”

Following the presentation of the prosecution’s proofs at trial, defendant moved for a directed verdict on the PFWI charge for the constitutional reasons previously argued, and the court denied the motion, standing by its original ruling . . .

Defendant was acquitted of all charges except the charge of PFWI, for which defendant was found guilty by the jury. Following trial, defendant filed a motion for judgment notwithstanding the verdict, which was denied, and subsequently she filed a motion for new trial or a directed verdict of acquittal, which was also denied. The primary basis for these motions was the alleged infringement of defendant’s state and federal constitutional right to keep and bear arms, along with associated or interwoven claims of instructional error. In the motion for new trial or directed verdict of acquittal, defendant cited and relied on a recently issued opinion from this Court in People v Deroche, 299 Mich App 301; 829 NW2d 891 (2013). The panel in Deroche held that the Second Amendment precludes a prosecution under MCL 750.237 if the prosecution’s theory of guilt is one of constructive possession of a firearm in one’s own home. Id. at 303. In denying defendant’s motion in a written opinion, the trial court distinguished Deroche on the basis that in the case at bar, there was evidence of actual possession, along with evidence that defendant used the gun to threaten and assault the complainant. Although the court recognized some similarities to Deroche, they were insufficient to support a new trial or a directed verdict of acquittal . . .

The Court's analysis of defendant's constitutional claims followed.

We review de novo the constitutionality of a statute. People v Loper, 299 Mich App 451, 457; 830 NW2d 836 (2013). The Second Amendment and Const 1963, art 1, § 6, both guarantee an individual “a right to keep and bear arms for self-defense.” People v Yanna, 297 Mich App 137, 142; 824 NW2d 241 (2012). The Second Amendment “elevates above all other interests the right of law-abiding, responsible citizens to use arms in defense of hearth and home.” Dist of Columbia v Heller, 554 US 570, 635; 128 S Ct 2783; 171 L Ed 2d 637 (2008); see also Deroche, 299 Mich App at 305-306 (Second Amendment guarantees the right to possess a firearm in case of confrontation). However, as explained by the United States Supreme Court in Heller, 554 US at 626-627, some limits can be placed on the right to keep and bear arms:

Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose. For example, the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues. Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms. [Citations omitted; see also Deroche, 299 Mich App at 306-307.]

This Court in Deroche acknowledged that there are constitutionally-acceptable categorical regulations of gun possession and then discussed the particular statute at issue here, MCL 750.237:

It follows that a statute, such as the one in this case, could fall within the categories of presumptively lawful regulatory measures. Like the restrictions preventing felons, the mentally ill, or illegal drug users from possessing firearms because they are viewed as at-risk people in society who should not bear arms, individuals under the influence of alcoholic liquor may also pose a serious danger to society if permitted to possess or carry firearms because those individuals will have “difficulty exercising self-control, making it dangerous for them to possess deadly firearms.” At this juncture, assuming that the statute at hand is facially constitutional, the issue is whether the statute, as applied to defendant, is unconstitutional. [Deroche, 299 Mich App at 307-308 (citations omitted).] 

. . . Based on the undisputed facts and even assuming the claims made by defendant in her testimony were true, we cannot conclude that defendant is entitled to a new trial on the ground that her state and federal constitutional right to keep and bear arms was violated. Any impairment of defendant’s constitutional right by outlawing her movement of the gun was substantially related to the important governmental interest in preventing intoxicated individuals from possessing firearms. Therefore, convicting defendant under MCL 750.237 and the circumstances presented survives or satisfies intermediate scrutiny. Reversal is unwarranted.