State v. Williams, Minn.S.Ct., 3/9/2011. Minneapolis police officers responded to a radio report of a robbery that involved the use of a gun. The officers had a description – tall black male, wearing a black hooded sweatshirt – and a direction of travel – running west from 22nd Street and Emerson Avenue North. An officer saw a tall black man wearing a black hooded sweatshirt running west on 22nd. A foot chase ensued, during which the tall black man wearing a black hooded sweatshirt turned to his right, which exposed the butt of a handgun sticking out of the right front pocket of his sweatshirt. Mr. Williams was the tall black man wearing a black hooded sweatshirt with a gun sticking out of one of the pockets of the black hooded sweatshirt. How unlucky is that?
It gets worse. The robbery victim was unable to identify Mr. Williams as one of the robbery suspects. So, instead of charging Mr. Williams with robbery, the officer arrested him anyway, charging him with something to do with with possession of the gun. The officer neither asked Mr. Williams to produce a permit for the pistol nor determined independently that Mr. Williams didn’t have a permit for the pistol. It’s still a secret to this day whether he had a permit for the pistol.
What he did have, unfortunately, was cocaine, which Mr. Williams disclosed to the officer at the entrance to the jail. That’s why the state charged Mr. Williams with possession of cocaine while in possession of a firearm. Minn.Stat. 609.11, subd. 5:
[A]ny defendant convicted of an offense listed in subdivision 9 in which the defendant or an accomplice, at the time of the offense, had in possession or used, whether by brandishing, displaying, threatening with, or otherwise employing, a firearm, shall be committed to the commissioner of corrections for not less than three years…
Now, back to the permit for the pistol. When the officer arrested Mr. Williams for possession of the pistol did he have probable cause to believe that Mr. Williams was in violation of the pistol permit statute:
A person . . . who carries, holds, or possesses a pistol . . . on or about the person’s clothes or the person . . . in a public place . . . without first having obtained a permit to carry the pistol is guilty of a gross misdemeanor. A person who is convicted a second or subsequent time is guilty of a felony.
Easy question to answer once you know that long long ago in a galaxy far away the Court had the prescience to have construed this statute to avoid this very problem. State v. Paige, 256 N.W.2d 298 (Minn. 1997). Paige says that you can’t carry a pistol in a public place, so that’s the starting point. If you have a permit then you don’t get charged, but the only elements of the offense are possession of a pistol in a public place. The officer saw the gun sticking out of Mr. Williams’ pocket, heard him admit that he had the gun and confirmed that admission by removing the gun from his pocket. There was ample probable cause under these facts to have arrested Mr. Williams for possession of the pistol.
Mr. Williams took one more run at the statute. He argued that by creating a presumption that possession of a pistol in a public place is illegal the statute runs afoul of the opposite presumption created by the Second Amendment. The Court’s not going there, however, for the reason that Mr. Williams did not raise this issue in the trial court.
Justice Page concurred in the result but offered this acerbic observation about the statute’s presumption that it’s illegal to carry a pistol in public:
While I concur in the result, I write separately to note that it is likely to come as a shock to all those people who have obtained a permit to carry, hold, or possess a pistol in a public place that by carrying, holding, or possessing the permitted pistol in a public place they subject themselves to arrest under Minn. Stat. § 624.714, subd. 1a (2010).
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