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On guns in cars, SCOW’s grab exceeds its reach

State v. Brian Grandberry, 2018 WI 29, affirming an unpublished court of appeals decision, 2016AP173; case activity (including briefs)

Here’s the upshot: the majority opinion here means that, if you don’t have a concealed carry permit, you can’t have a handgun “concealed” in your car, unless it’s out of your reach. How will you know if it’s out of your reach? Simple: you’ll consider the location of the gun and yourself, the size of your vehicle, and your ability to reach the gun, and then you’ll “find guidance in [SCOW] precedent and common sense.” (¶31). While you’re considering all these things you should maybe also consider how, say, a police officer might consider them. Or a prosecutor. Or a jury. Because if they reach a different conclusion, well, that’s gonna be a problem.

Grandberry had a handgun in his glove compartment when the police stopped him. He had legally purchased the gun, and had applied for a concealed-carry license, but hadn’t gotten it yet. He was convicted, after a bench trial on stipulated facts, of violating the concealed carry law, Wis. Stat. § 941.23(2). He contends that the safe transport law, Wis. Stat. § 167.31, shielded him from criminal liability. That law says you can’t transport a firearm in a vehicle unless, inter alia, it’s “unloaded or a handgun.”

Grandberry makes two related arguments. His first, though phrased in terms of sufficiency of the evidence, is essentially that the safe transport law creates an exception to the concealed carry law–that the only fair reading of the two statutes is that one who transports a handgun in a car, as the safe transport law says a person can, does not “carr[y] a concealed and dangerous weapon” as the concealed carry law says an unlicensed person cannot. His backup position is that if the statutes are not read this way, they conflict, creating a degree of confusion that renders them void for vagueness.

The five-justice majority does not agree. It notes, first, that to “carry” a weapon is, by statutory definition, “to go armed with” said weapon. Wis. Stat. § 175.60(1)(ag); (¶15). And it cites state cases going back to 1930 holding that one “goes armed with” a weapon so long as that weapon is “within reach.” See Mularkey v. State, 201 Wis. 429, 432, 230 N.W. 76 (1930) (so old Google doesn’t know about it, so no link).

So, because a handgun in a glove box is within reach of the driver, the driver is “carrying” it, and thus breaking the law if he doesn’t have a permit. The court waves off any conflict between the concealed carry and safe transport laws by observing that it’s at least theoretically possible for a non-CCW permit holder to comply with both. (¶30). Maybe. If your car has a trunk or is large enough that you can put your gun somewhere you can’t reach it. And where the cop, DA, and jury agree you can’t reach it.

But, says Grandberry, in the context of the Fourth Amendment, SCOTUS has declared that the entire passenger compartment is “within reach” such that it can be subject to a search for weapons. See, e.g., New York v. Belton, 453 U.S. 454, 460 (1981). So, for an SUV or station wagon or other trunkless vehicle, there’s no legal place to put one’s lawfully possessed handgun. Is the law then that a lawful handgun owner with a hatchback can’t drive the gun to the firing range, but the one with the sedan can?

The majority’s response is twofold. First, it argues that actually, the relevant Fourth Amendment concept is “grab area,” not “within reach.” (¶¶24-26). Different words. Just because you might be able to “grab” anything in the passenger compartment, doesn’t mean you can “reach” it. Right?

Second, the majority notes that the Belton holding–that everything in the passenger compartment can be reached (because actually, as Justice Kelley’s concurrence points out, that’s what it says) is a conclusion of law, whereas whether a firearm is “within reach” such that you’re “carrying” it will be a fact question for the jury. (¶25). If you can see the logical significance of this distinction, please leave it in the comments.

Satisfied that its own view of the law is clear and unassailable, the majority quickly dismisses Grandberry’s claim that the law is, in fact, vague. (¶¶32-36).

Justice Kelley’s concurrence lucidly sets out the logical weaknesses in the majority opinion. In his view the rule of Belton is the rule of the concealed carry law; you just can’t carry a handgun in the passenger compartment of a vehicle without a CCW permit. (¶53). He argues, with some force, that majority’s reach/grab distinction creates its own constitutional vagueness problem. He points out that the concealed carry law facially bans many practices that are part and parcel of lawful gun ownership–e.g., encasing your rifle–but since they’re not in this case, he agrees that Grandberry’s conviction can stand. (¶¶54-56).

Justice Rebecca Bradley is the sole dissenter. She, too, is troubled by the vagueness of the majority’s test, and by the various ways the concealed carry law apparently outlaws what are generally considered good practices with firearms. Since many, many hunters and target shooters are, e.g., carrying their rifles in cases, she observes that enforcement of the law can only be selective; one of the central concerns of the vagueness doctrine. (¶¶78-79). Her solution to the particular contradiction here is to rein in the definition of “carry” by restricting it to mean “carry” in the sense of have on one’s person. She points out that the broader “within reach” notion isn’t in the statutes; it was imported to Wisconsin by Mularkey, which relied on a Texas decision–but the Texas statute had broader language. (¶¶84-86).

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