Court: Carrying a gun in private yard not illegal
Posted at 12:17 PM on June 18, 2012
by Bob Collins
(15 Comments)
Filed under: Crime and Justice
Police officers in Minnesota cannot detain someone on the front yard of a private residence solely on the report that he might have a gun, the Minnesota Court of Appeals ruled today.
The court made its ruling in the 2010 case of Theng Yang, who was arrested outside a Frogtown home in Saint Paul, which police said was associated with gangs and drugs. A caller to 911 had reported "a man with red pajamas" had a gun and when the police arrived, they saw Yang, pulled their guns and ordered all the men in the yard to the ground.
That's the point at which the police made an unlawful search and seizure, the Court of Appeals said today.
Yang, who could not lawfully possess a gun in Minnesota because of a felony conviction, was convicted of unlawful firearm possession and sentenced to five years in prison.
Yang argued, however, that while Minnesota law generally prohibits carrying a handgun without a permit on public property, a residential yard is not "a public place."
The court refused to declare that any residential yard is "not a public place," but Judge Kevin Ross wrote that police misinterpreted the law .
When the police arrived, Yang was "coming out the front porch into the front yard," apparently nowhere near governmental property--a sidewalk or street, for example--and the state makes no claim of it. Although it turned out that Yang illegally possessed a firearm anyway because a previous conviction prohibited his possession, this is of no consequence to the stop because police had no reason to know that and because the state has attempted to justify the seizure instead only on the supposed suspected violation of the handgun statute.
Similarly, the officers' awareness that drugs had been found and arrests had occurred previously at the home do not create reasonable suspicion to detain an occupant on a new report that he possesses a handgun.
Comments (15)
[T]he officers' awareness that drugs had been found and arrests had occurred previously at the home do not create reasonable suspicion to detain an occupant on a new report that he possesses a handgun.
I think anyone who has spent any amount of time living in a rough neighborhood will recognize that statement as being ludicrous.
one of those situations where you have to agree with the generalities of statements. I should be able to carry a gun on my own property and, provided it isn't discharged illegally, and not have the police hassling me about it.
however doing that in the suburbs vs. out in the country vs. frog town, are all very different things.
Heck even if you have a permit, and you are walking around with a gun in a rough neighborhood, and some one sees you with the gun, you should expect to be speaking with a police officer.
// and you are walking around with a gun in a rough neighborhood, and some one sees you with the gun, you should expect to be speaking with a police officer.
And the court made clear if they'd made it to the sidewalk, that would have been in order.
// t any amount of time living in a rough neighborhood will recognize that statement as being ludicrous.
You can't have two Constitutions, one for people in the nice neighborhoods and one for the people in the tough neighborhoods.
And as I've written several times, the strength of the U.S. Constitution, comes from our ability to extend it to the most despicable people.
// as I've written several times, the strength of the U.S. Constitution, comes from our ability to extend it to the most despicable people.
The Constitution protects us from "unreasonable" search and seizure. The question is whether this case was unreasonable.
Most lawful gun owners choose to carry their weapons concealed, in part because they know that many honest citizens will react to the sight of a firearm by calling the police. Clearly, the gentleman who is the subject of this particular court case didn't even have his weapon concealed.
So here's the situation: you have a residence with a known history of drugs and illegal activity and an occupant (who later turns out to be a convicted felon in illegal possession of a firearm, but that's beside the point) flashing a gun in full view of his neighbors. I don't see how it is unreasonable for the police to detain that person, sidewalk or no sidewalk.
I have a long story that relates to this topic, but here's the short version...
My home childcare business in Mound had only been open for a couple months, and business had just been picking up. It was late in the afternoon, and a couple of school aged boys were in my care, as well as the usual baby/toddler/preschool suspects. It was one of the first nice Spring days, and our neighbor, a 20 something year old guy, was out on his deck with what looked liked a hand gun.
The school aged boys were very excited to see the gun, and told me, and all the little ones, right away about it. I saw the gun, but never saw him shoot it, I thought maybe he was just cleaning it. I immediately asked the guy to go inside his house with the weapon, which he did, but that didn't settle those boys down at all. They were SO excited about seeing a gun.
My heart sank, as clearly the boys parents (and the other parents too) would be hearing about this episode. Questions rang through my head, the biggest was "Does my neighbor just get to walk around his property while brandishing a gun?"
I called the police just to ask questions, and they decided to go to my neighbor's house, where the kid admitted to shooting it in the yard, and they confiscated the gun.
I finally talked to the police a few days later, and they explained to me that to only reason someone should be carrying a weapon on their property was because they were on the way to the car to go hunting or go to a gun range or something.
It's an interesting question.. can a guy legally own a gun, and walk around his property with it, while a home childcare business operates next door? I don't think I would let me kids come here if that was the case that day.
N, it is never "reasonable" to detain someone for perfectly legal behavior. There is nothing in Minnesota law that requires a person to conceal a firearm, whether on private property, or carrying with a permit in public.
I open carry all the time. My right to do so does not change, regardless of which neighborhood I'm in, what I wear, how I cut my hair, or the color of my skin.
Bob is entirely correct: civil rights are meaningless if they're not for everyone.
// Clearly, the gentleman who is the subject of this particular court case didn't even have his weapon concealed. So here's the situation: you have a residence with a known history of drugs and illegal activity and an occupant (who later turns out to be a convicted felon in illegal possession of a firearm, but that's beside the point) flashing a gun in full view of his neighbors. I don't see how it is unreasonable for the police to detain that person, sidewalk or no sidewalk.
No, that's not true at all. The reason it was an unreasonable search is because the gun WASN'T visible. If it had been visible, the so-called "Terry standard" would apply.
Under it, a search is allowed if there's an "objectively reasonable suspicion of criminal activity." In this case, walking around with red pajamas on your front yard does not so qualify. And you can't be ordered to the ground at gunpoint without something more substantial. That's what the case is about.
If he had been "flashing a gun around," that would be grounds for a search, just as the guy flashing the gun in George's example above was enough for an investigation by police.
Keep in mind here, too, that there were about four other people that had to get down on the ground at gunpoing.
I will admit to not knowing all the facts of this case. But clearly, somebody knew the guy had a gun.
To me, a report that somebody's carrying a gun at a location that's notorious for gang activity seems like probable cause. And I don't know that it was unreasonable for the officers to draw their weapons either, if they felt that was what they needed to do to protect themselves and get control of the situation.
The Pioneer Press provides some context.
// According to a criminal complaint, a man who had parked his car in front of the house called police after Yang came out of the house, pointed a handgun and started yelling at him.
Sounds like flashing a gun to me.
// Sounds like flashing a gun to me.
I would encourage you to read the link I provided to the decision because, with all due respect to the Pioneer Press, it doesn't MATTER what the caller claims.
It doesn't provide any more context as the first paragraph of what I wrote on the piece indicates.
// , if they felt that was what they needed to do to protect themselves and get control of the situation.
I guess we should look at it from the other direction, then. What would -- forget about this case, anything else on someone's front yard will do -- constitute an unreasonable search?
If I call the cops and say you are dealing drugs, for example, can the cops come in without a warrant?
Can a police officer stop you on the drive home this afternoon on the possibility you may have something illegal in your car?
(These are not rhetorical questions, by the way, I'm genuinely interested in these conversations.)
// If I call the cops and say you are dealing drugs, for example, can the cops come in without a warrant?
// Can a police officer stop you on the drive home this afternoon on the possibility you may have something illegal in your car?
Can they? Do they? I don't know. It seems like cops bend the rules all the time, coming up with flimsy excuses for probable cause, etc., because they have a gut feeling that someone's doing something illegal. But in this case, I don't even know if they WERE bending the rules.
The thing I can't wrap my head around is the concept that I could stand in my yard, pointing my pistol threateningly at passersby, and that if the cops didn't see the gun themselves, they would have to get a judge to issue a warrant before they could search me or do anything about it.
The article and court opinion don't match. The article says the caller said the guy was pointing the gun; the court said the REPORT made to police was that a man simply HAD a gun. The police did not get the full version (brandishing a gun) until after they stopped the guy. They need to justify the stop based on info they had BEFORE the stop, not after. Of course they can stop a man who pointed a gun, if that had been the actual report.
// The article says the caller said the guy was pointing the gun; the court said the REPORT made to police was that a man simply HAD a gun.
I'm not sure what article you're talking about. What the "article" I I wrote said was:
A caller to 911 had reported "a man with red pajamas" had a gun
I believe the quotes in the comments section here about pointing a gun actually came from the Pioneer Press.
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