Law Blog

Michigan Courts Side with Gun Owners

In People v DeRoche, a recent case in the Michigan Court of Appeals, the court held that it was a violation of the Second Amendment to charge a person with possession of a firearm while under the influence of alcohol when the possession occurred in the person’s home and was not coupled with any other illegal activity.

The statute in question, MCL 750.237, restricts the possession of a firearm as follows:

(1) An individual shall not carry, have in possession or under control, or use in any manner or discharge a firearm under any of the following circumstances:

(a) The individual is under the influence of alcoholic liquor, a controlled substance, or a combination of alcoholic liquor and a controlled substance.

(b) The individual has an alcohol content of 0.08 or more grams per 100 milliliters of blood, per 210 liters of breath, or per 67 milliliters of urine.

(c) Because of the consumption of alcoholic liquor, a controlled substance, or a combination of alcoholic liquor and a controlled substance, the individual’s ability to use a firearm is visibly impaired.

The case came about when two Novi police officers were called to a home because of a “verbal altercation”, where they eventually came into contact with Mr. DeRoche. It had been alleged that Mr. DeRoche had possessed a gun earlier that night, but upon arrival the officers had been shown where the gun had been hidden by Mr. DeRoche’s mother in law. After speaking with Mr. DeRoche, and discovering that he ws drunk, he was arrested for the possession of a firearm while intoxicated charge.

After several hearings the case made its way up to the court of appeals. The court held that charging Mr. DeRoche in such a manner was unconstitutional because it violates his federal and state right to bear arms in his home for purposes of self-defense. The court, referencing a recent United State Supreme Court opinion, stated that the Second Amendment, while not absolute, did protect the rights of citizens to keep fire arms in their homes for the purpose of self-defense.

“While Second Amendment rights are not unlimited, this conduct is protected. Aside from the statute at issue, defendant was not engaging in an unlawful behavior nor were there any facts to suggest that defendant possessed the handgun for any unlawful purposes. Further, it was not established that this is the case where someone was unlawfully allowed to own or possess a handgun in the first instance. Additionally, the prosecution has failed to establish that the conduct at issue had been historically outside of the scope of Second Amendment protection. Greeno, 679 F3d at 518. Given the above discussion, defendant’s conduct fell within the protections of the Second Amendment. While the perceived danger associated with intoxicated individuals and handguns is real and important, these issues are addressed by analyzing the conduct under the second prong of the Greeno test as discussed below.”

The court concluded its opinion by stating:

“In conclusion, the government cannot justify infringing on defendant’s Second Amendment right to possess a handgun in his home simply because defendant was intoxicated in the general vicinity of the firearm. Accordingly, the district court did not err in finding that MCL 750.237, as applied to defendant, was unconstitutional.”

Gun crimes are some of the most common charges brought in the State of Michigan. In order to protect yourself, you need one of Michigan’s top criminal defense attorneys. These cases often revolve around the testimony of police officers of civilian witnesses, which means your freedom rests on your lawyer’s ability to skillfully cross-examine those witnesses. Be sure to put your freedom in the hands of criminal defense lawyers who have the experience and ability to break down a prosecutor’s case and clear your name.

Call Nessel & Kessel Law today for a free consultation.


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