State v. Richard

298 S.W.3d 529, 2009 Mo. LEXIS 531, 2009 WL 3833828

• Court: Supreme Court of Missouri
• Decided: November 17, 2009
• Docket: SC 89832
• Status: Published

Opinions

RICHARD B. TEITELMAN, Judge.

The state of Missouri appeals from a judgment dismissing an information charging John L. Richard with one felony count of possession of a loaded firearm while intoxicated. Section 571.030.1(5), RSMo Supp.2008. The circuit court dismissed the charge on the grounds that section 571.030.1(5) violates the Second Amendment to the United States Constitution and article I, section 23 of the Missouri Constitution. The statute is not facially unconstitutional or unconstitutional as applied to the facts of this case. The judgment is reversed, and the case is remanded.¹

FACTS

The state’s information and probable cause affidavit alleged that, during a dispute with his wife, Richard threatened to kill himself by “blowing his head off.” Richard also stated that if his wife called the police, he would go outside with a gun and make the police shoot him. Richard then ingested an unknown amount of morphine and amitripyline. When police arrived, Richard was seated in his home, unconscious, intoxicated, and in possession of a loaded handgun and extra ammunition.

Richard filed a motion to dismiss the information, asserting that section 571.030.1(5) is unconstitutional. Specifically, Richard asserted that the statute “effectively bans the possession of firearms in the home by anyone who is present in his/her home while intoxicated” and, therefore, violated his federal and state constitutional right to possess a firearm within his home for self-defense. The circuit court sustained the motion and held that section 571.030.1(5) “is unconstitutional to the extent that it prevents a citizen from possessing a firearm, actual or constructive, in the confines of his home while he or she is legally intoxicated.” The state appeals.

ANALYSIS

I.Standard of Review

When considering the legal issue of the constitutional validity of a statute, this question of law is to be reviewed de novo. City of Arnold v. Tourkakis, 249 S.W.3d 202, 204 (Mo. banc 2008). “A statute is presumed to be constitutional and will not be invalidated unless it ‘clearly and undoubtedly’ violates some constitutional provision and ‘palpably affronts fundamental law embodied in the constitution.’ ” Board of Educ. of City of St. Louis v. State, 47 S.W.3d 366, 368-69 (Mo. banc 2001) (internal citations omitted). The party challenging the validity of the statute has the burden of proving the statute unconstitutional. State v. Salter, 250 S.W.3d 705, 709 (Mo. banc 2008).

II.Section 571.030.1(5) is not facially unconstitutional

Section 571.030.1(5) provides that a person commits the crime of unlawful use of weapons if he or she knowingly “[possesses or discharges a firearm or projectile weapon while intoxicated.” Richard asserts that section 571.030.1(5) is overbroad and facially unconstitutional. The overbreadth doctrine is, however, limited to the context of the First Amendment. United States v. Salerno, 481 U.S. 739, 745, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987); Dombrowski v. Pfister, 380 U.S. 479, 486, 85 S.Ct. 1116, 14 L.Ed.2d 22 (1965). Richard attempts to bypass this precedent by asserting that State v. Beine, 162 S.W.3d 483 (Mo. banc 2005), extends the overbreadth doctrine beyond the First Amendment context. In Beine, this Court found there was insufficient evidence to support a conviction for sexual misconduct involving a child by indecent exposure, section 566.083.1(1). Id. at 485. The majority proceeded to conclude, however, that the statute was also unconstitutionally overbroad. Id. at 486-87. The constitutional analysis in Beine was unnecessary to resolve the case and, as a result, is dicta. The dicta in Beine does not extend the long-standing precedent that limits the overbreadth doctrine to cases implicating First Amendment concerns. Richard’s case does not involve a First Amendment issue. Consequently, the overbreadth doctrine has no application, and there is no basis for holding that section 571.030.1(5) is facially unconstitutional.

III.Section 571.030.1(5) is not unconstitutional as applied

The United States Supreme Court never has held that the Second Amendment to the United States Constitution applies to the states. District of Columbia v. Heller, — U.S. —, —, 128 S.Ct. 2783, 2813, 171 L.Ed.2d 637 (2008).² Consequently, Richard’s claim will be analyzed under the Missouri Constitution.

Article I, section 23 of the Missouri Constitution provides as follows:

That the right of every citizen to keep and bear arms in defense of his home, person and property, or when lawfully summoned in aid of the civil power, shall not be questioned; but this shall not justify the wearing of concealed weapons.

The state constitutional right to keep and bear arms, like the Second Amendment, is not absolute.³ The state has the inherent power to regulate the carrying of firearms as a proper exercise of the police power. State v. Horne, 622 S.W.2d 956, 957 (Mo. banc 1981).⁴

The function of police power is to preserve the health, welfare and safety of the people by regulating all threats harmful to the public interest. See Craig v. City of Macon, 543 S.W.2d 772, 774 (Mo. banc 1976). The legislature is afforded wide discretion to exercise its police power. Id. Possession of a loaded firearm by an intoxicated individual poses a demonstrated threat to public safety.⁵ Consequently, section 571.030.1(5) represents a reasonable exercise of the legislative prerogative to preserve public safety by regulating the possession of firearms by intoxicated individuals.

The ultimate facts of this case have yet to be established because the circuit court sustained Richard’s motion to dismiss the information prior to trial. At this stage of litigation, the facts for assessing Richard’s constitutional challenge are provided by the allegation in the state’s information and probable cause affidavit. The state alleges facts indicating that Richard was intoxicated and in actual possession of a loaded firearm. These alleged facts constitute a violation of section 571.030.1(5) and, as established above, are within the power of legislative regulation under the police power.

Although section 571.030.5 sets out a specific exception to the rule barring possession or discharge of a firearm while intoxicated, where the person is defending himself or others, Richard argues that the statute could be applied in a manner that effectively would prohibit an intoxicated person from possessing a firearm in the home for lawful self-defense. There is, at this point, no self-defense issue in this ease. Richard has no standing to raise hypothetical instances in which the statute might be applied unconstitutionally. Lester v. Sayles, 850 S.W.2d 858, 872-873 (Mo. banc 1993). Richard’s claim must be analyzed under the facts of this case. Under the facts of this case at this stage of the litigation, his constitutional claims fail.

The circuit court erred in dismissing the state’s information charging Richard with violating section 571.030.1(5). The judgment is reversed, and the case is remanded.

PRICE, C.J., RUSSELL, WOLFF, BRECKENRIDGE and STITH, JJ., concur; FISCHER, J., concurs in separate opinion filed.

1 . This Court has jurisdiction under Mo. Const, article V, section 3.

2 . The United States Supreme Court has granted a petition for a writ of certiorari in McDonald, et al. v. City of Chicago, — U.S. —, 130 S.Ct. 48, 174 L.Ed.2d 632, on the question of whether the Second Amendment applies to the states.

3 . In Heller, the Supreme Court noted that the Second Amendment does not confer an unconditional right to bear arms. Therefore, statutes prohibiting the possession of firearms by felons and the mentally ill or prohibiting carrying firearms in schools or government buildings are presumptively "lawful regulatory measures.” Id. at 2817.

4 . Four other states have constitutional provisions that are virtually identical to article I, section 23. See Colo. Const, art. II, section 13; Miss. Const, art. Ill, section 12; Mr. Const., art. 2, section 12; Oicla. Const, art. II, section 26. Like Missouri, three of these states expressly have recognized that the right to keep and bear arms can be regulated pursuant to the state’s inherent police power. People v. Garcia, 197 Colo. 550, 595 P.2d 228 (1979)(statute criminalizing possession of firearms while intoxicated is a valid exercise of police power); James v. State, 731 So.2d 1135, 1137 (Miss.l999)(state statute banning possession of firearms by felons is a valid exercise of state police power); State ex rel. Oklahoma State Bureau of Investigation v. Warren, 975 P.2d 900, 902 (Okla.1998). The Montana courts have not addressed the issue.

5 .See, e.g., State v. Erwin, 848 S.W.2d 476 (Mo. banc 1993) (intoxicated person shot and killed his best friend with a 12-gauge pump action shotgun); State v. Donahue, 280 S.W.3d 700 (Mo.App.2009) (intoxicated person fired a shot “just to scare people,” killing the victim); State v. Tabor, 193 S.W.3d 873 (Mo.App.2006) (intoxicated person threatened his roommates with a shotgun, warning he would "blow [them] away”); Vicory v. State, 81 S.W.3d 725 (Mo.App.2002) (defendant, who had been drinking with his brother, fired a shot from the window of his house, killing his brother who was outside the home); State v. Moore, 949 S.W.2d 629 (Mo.App.1997) (intoxicated person shot his aunt’s boyfriend twice in the back of the head at their residence); State v. Whitley, 750 S.W.2d 728 (Mo.App.1988) (intoxicated person pointed gun at police officer who knocked on defendant's door in response to a call to respond); State v. Rainwater, 602 S.W.2d 233 (Mo.App.1980) (intoxicated husband, allegedly trying to strike his wife with a gun "to teach her a lesson,” shot her when she grabbed the gun).