Felony charge for warning shot

View · by **spyder357** on Tue Apr 02, 2013 7:50 am

http://www.winonadailynews.com/news/art ... 4.html/%20

I have no idea if he's telling the truth but firing his pistol in town while drinking probably compromised any legal defense he might have had. Then again that warning shot might have saved his life.

View · by **xd ED** on Tue Apr 02, 2013 7:59 am

He probably could have made things worse by (literally) shooting himself in the foot, but otherwise, he he screwed up pretty well from start to finish.

View · by **MNGunGuy** on Tue Apr 02, 2013 8:24 am

I wouldn't be surprised to see the two alcohol related charges go away at some point.

https://www.revisor.mn.gov/statutes/?id=624.7142

Subdivision 1.Acts prohibited. A person may not carry a pistol on or about the person's clothes or person in a public place:
...
(4) when the person is under the influence of alcohol;
(5) when the person's alcohol concentration is 0.10 or more; or
(6) when the person's alcohol concentration is less than 0.10, but more than 0.04.

Unless I'm mistaken I recall seeing case law stating your lawn/property is not considered a public place.

View · by **xd ED** on Tue Apr 02, 2013 8:31 am

Depending on what he did, and was said to the police, there may be no alcohol related crime or charges.

The article didn't say whether or not he had a couple of quick shots of bourbon after the incident, just to calm his nerves.......now what he told the police.....

View · by **hornswaggle** on Tue Apr 02, 2013 8:37 am

I wonder if the Sheriff is as interested in finding the guys that confronted him and threatened his life as they are with charging him with a possible felony for defending himself while intoxicated.

Maybe he'll use the 'Biden Defense', where firing a warning shot is all that is neccessary. Of course Biden advocated using a double barrel shotgun and firing into the air before you even see the bad guy so that may not apply. I'm still amazed that as crazy as that sounds our Vice President actually said that. Out loud. With cameras around. Seriously.....

View · by **spyder357** on Tue Apr 02, 2013 8:38 am

Yeah it isnt clear if he was on his property or merly in front of it...that would make a huge difference.

"fired a shot into the ground outside his residence after a confrontation"

This is definitely a case where you make a call to the police and let them know there was an altercation....and then call a lawyer and let him do the talking.

I'll say the sheriff in town (Dave Brand) seems to be a pretty good guy. Real friendly and when the girlfriend went to get her carry permit he was extremely helpful answering some of her questions. Also got my carry permit signed off and delivered in about two weeks.

View · by **hornswaggle** on Tue Apr 02, 2013 8:42 am

I also noticed in the article they identified the caliber but not the gun and whether he was using high capacity magazines or if he had an assualt weapon in his arsenal of guns in the house. I'm sure that will be cleared up once a mainstream media picks this up.

View · by **LarryFlew** on Tue Apr 02, 2013 1:08 pm

Biden should be there for him since it was his suggestion.

View · by **MasonK** on Tue Apr 02, 2013 1:50 pm

LarryFlew wrote:Biden should be there for him since it was his suggestion.

If I were his lawyer, I would definitely subpoena Biden as an expert witness on this subject.

View · by **Snakeman721** on Tue Apr 02, 2013 2:53 pm

MasonK wrote:
LarryFlew wrote:Biden should be there for him since it was his suggestion.

If I were his lawyer, I would definitely subpoena Biden as an expert witness on this subject.

Best idea I've heard all day! :bravo:

View · by **jshuberg** on Tue Apr 02, 2013 4:57 pm

MNGunGuy wrote:Unless I'm mistaken I recall seeing case law stating your lawn/property is not considered a public place.

I'm not a lawyer, but here goes - there are 2 different definitions of what is considered a public place concerning MN firearms law. Both have been determined by the courts, and neither would include a persons front yard unless the public is granted access by invitation, such as during a yard sale or block party, etc.

624.7181 (c) provides a definition of what a public place is when requiring a permit to carry a firearm in public under 624.714:

"Public place" means property owned, leased, or controlled by a governmental unit and private property that is regularly and frequently open to or made available for use by the public in sufficient numbers to give clear notice of the property's current dedication to public use but does not include: a person's dwelling house or premises, the place of business owned or managed by the person, or land possessed by the person; a gun show, gun shop, or hunting or target shooting facility; or the woods, fields, or waters of this state where the person is present lawfully for the purpose of hunting or target shooting or other lawful activity involving firearms.

https://www.revisor.mn.gov/statutes/?id=624.7181
https://www.revisor.mn.gov/statutes/?id=624.714

This definition was upheld and a persons front yard was found to *not* be a public place in state v. Yang 2012
http://statecasefiles.justia.com/docume ... 1-1008.pdf

However, 624.7142 CARRYING WHILE UNDER INFLUENCE OF ALCOHOL OR CONTROLLED SUBSTANCE does not specifically define what a public place is as 624.714 does. The definition of what a public place is for the purposes of 624.7142 was determined by the courts in state v. Gradishar 2009:

For purposes of section 624.7142, we conclude that “public place” shall be defined as: generally an indoor or outdoor area, whether privately or publicly owned, to which the public have access by right or by invitation, expressed or implied, whether by payment of money or not.

http://caselaw.findlaw.com/mn-court-of- ... 85532.html

The main difference is that the courts have determined that a restaurant that a person owns is *not* considered public property for 624.714, but *is* considered public property for 624.7142.

A person carrying a firearm in their front yard while under the influence of alcohol is not subject to 624.7142, unless they have granted the public access to their yard. I'm not a lawyer though, so don't go getting in trouble and blaming it on me

Interestingly, deputy police chief Tom Williams apparently told the press that "Brierley has a concealed carry firearms permit issued by Scott County". Information concerning individuals possessing permits to carry a handgun is *private data* as classified under the MN Data Practices Act, 13.87 Subd 2.

Firearms data.
All data pertaining to the purchase or transfer of firearms and applications for permits to carry firearms which are collected by government entities pursuant to sections 624.712 to 624.719 are private, pursuant to section 13.02, subdivision 12.

https://www.revisor.mn.gov/statutes/?id=13.87

It appears that deputy police chief Tom Williams is in violation of the MN Data Practices Act:

Any person who willfully violates the provisions of this chapter or any rules adopted under this chapter is guilty of a misdemeanor. Willful violation of this chapter by any public employee constitutes just cause for suspension without pay or dismissal of the public employee.

https://www.revisor.mn.gov/statutes/?id=13.09

:shock:

View · by **tman** on Wed Apr 03, 2013 12:59 pm

If it's an element of a crime, is the data still private?

Sent from my iPhone using that app which shall not be named.

View · by **tman** on Wed Apr 03, 2013 1:03 pm

Ok, so I've read the story. Carrying on the street while drunk is a crime. Where exactly was he? He said he was returning home (while carrying) and had the confrontation.

Gonna be a tough one for him.

Sent from my iPhone using that app which shall not be named.

View · by **jshuberg** on Wed Apr 03, 2013 1:21 pm

He also claimed it was unloaded. For all we know, it may have also been cased, and he could have been a passenger in a car, we don't really know. While on his own property though, 624.7142 doesn't apply. Firing the warning shot if lethal force wasn't justified was a big no no, regardless of everything else.