A new take on guns in public

June 21, 2012

In an interesting, and somewhat uncommon decision, the Minnesota Court of Appeals issued a decision this week overturning the conviction of a man convicted of being a felon in possession of a handgun, ruling that because the man was in his own yard, and it’s not illegal in Minnesota to possess a handgun on your own property, the officers who made the arrest lacked the requisite Terry suspicion to detain him. State v. Yang, — N.W.2d —-, 2012 WL 2202928 (Minn. App. 2012).

The decision hinges on the distinction in Minnesota law of what is “public property.” The court rules that public property does not include one’s own yard, which I think is a reasonable interpretation. Carrying a handgun across your yard from your home to your garage is a far cry from carrying a handgun in the mall parking lot. Given that Yang was carrying the gun in his own yard, the court holds that the police did not have reasonable, articulable suspicion that he was committing a crime, because what he was doing with the gun was not illegal (the carrying it in his yard part, not the carrying it while being a felon part, which is still illegal).

I say this is an uncommon decision because, before this decision, police in Minnesota were fairly free to stop anyone carrying a firearm in view because carrying a firearm in Minnesota is presumptively illegal unless one has a permit to carry. See State v. Timberlake, 744 N.W.2d 390; Minn. Stat. 624.714. Different states have taken different positions on this issue, see, e.g., Commonwealth v. DiPeiza, 449 Mass. 367 (“The mere carrying of a concealed firearm is not a crime, thus observations suggesting a concealed firearm, with nothing more, do not provide reasonable suspicion for a stop.”); J.L. v. State, 727 So.2d 204 (“ In Florida, it is generally not illegal to possess a firearm.”) But in Minnesota, generally speaking, carrying a firearm in public view, whether open or concealed, was invitation for a chat with police. As one can imagine, those chats are not always cordial.

But I have to wonder what effect, if any, the Yang ruling will have on police encounters with people displaying weapons in their front yards. How are the police to know, at the moment when the call comes in that the person they are holding at gun point is the homeowner? Even if they could identify who owns the home they are called to, until they conduct an investigatory stop, they have no way of identifying the armed person in the yard. Presumably, once they determine that the person they are questioning is the homeowner, reasonable suspicion disappears. But this is a step farther than Yang seems to go.

The court in Yang specifically rejects the idea that “a person’s residence” means any person’s residence. So for the court’s ruling to apply, a person in possession of a handgun has to be on their own property. The court assumes, without evidence in the record (Yang at *1) that at some point, the officers learned that the home belonged to Yang. But unless they knew that before they stopped him, how does that invalidate the stop?

In principal, I agree with the holding in Yang that a person carrying a firearm on their own property is committing no crime, and therefore shouldn’t be subject to a stop by police. Still, what will the practical effect of Yang be? My best guess: lots of cases where defendants are arrested and charged, then later move to suppress because they were on their own land, but no real effect on the day-to-day conduct of police work.

For additional research resources:

On WestlawNext:

Search: reasonable suspicion of crime for carrying firearm on own property
Jurisdiction: All State and Federal

Or on WestlawNext or Westlaw.com:

Search: #own +2 property yard house home apartment building /p “reasonable suspicion” “investigatory stop” “probable cause”
Jursidction:  All State and Federal  – or – Database:  Allcases