As most here know, MN passed a shall-issue law last year. Several months
ago, when writing some legal papers for a contemplated action under the law,
I noticed an odd discrepancy with pre-existing statutes. After thinking
about it for a while, I thought I had worked out the correct resolution, but
now I'm not so certain.
The question is this: does a MN carry permit allow the bearer to carry a
pistol inside a jail or other secure hospital or correctional facility?
Here are the relevant statutory provisions.
First, the new permit law:
**********
Minn. Stat. s624.714, Subd. 2.(c) A permit to carry a pistol issued or
recognized under this section is a state permit and is effective throughout
the state.
Id, Subd. 23. Exclusivity. This section sets forth the complete and
exclusive criteria and procedures for the issuance of permits to carry and
establishes their nature and scope. No sheriff, police chief, governmental
unit, government official, government employee, or other person or body
acting under color of law or governmental authority may change, modify, or
supplement these criteria or procedures, or limit the exercise of a permit
to carry.
*******
Next, the "public places" in which a permit is valid are defined:
*******
624.7181 (c) "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.
*******
Next are the two previously existing (and unchanged) statutory provisions
about secure facilities:
*******
243.55 Contraband articles; exceptions; penalty.
Subdivision 1. Any person who brings, sends, or in any
manner causes to be introduced into any state correctional
facility or state hospital, or within or upon the grounds
belonging to or land or controlled by any such facility or
hospital, any controlled substance as defined in section 152.01,
subdivision 4, or any firearms, weapons or explosives of any
kind, without the consent of the chief executive officer
thereof, shall be guilty of a felony and, upon conviction
thereof, punished by imprisonment for a term of not more than
ten years. Any person who brings, sends, or in any manner
causes to be introduced into any state correctional facility or
within or upon the grounds belonging to or land controlled by
the facility, any intoxicating or alcoholic liquor or malt
beverage of any kind without the consent of the chief executive
officer thereof, shall be guilty of a gross misdemeanor. The
provisions of this section shall not apply to physicians
carrying drugs or introducing any of the above described liquors
into such facilities for use in the practice of their
profession; nor to sheriffs or other peace officers carrying
revolvers or firearms as such officers in the discharge of
duties.
*******
I'll skip posting the other one; it's similar, except deals with jails other
than state facilities, e.g., county jails.
The basic problem is that the new law says the permit is effective at every
public place in the state, with some exceptions (e.g., schools), and jails
are not listed among the exceptions. Furthermore, it prohibits any public
official from restricting the permit to carry (presumably, including the
warden of a prison, for example). But on the other hand, we have the above
two statutes making it a felony to bring a gun into a prison. These, too,
hve exceptions built in, but not for permit holders.
Hence, the conflict.
There's a bunch of statutes on statutory construction. Most pertinent are
these:
*******
645.19 Construction of provisos and exceptions.
... Exceptions
expressed in a law shall be construed to exclude all others.
645.26 Irreconcilable provisions.
Subdivision 1. Particular controls general. When a
general provision in a law is in conflict with a special
provision in the same or another law, the two shall be
construed, if possible, so that effect may be given to both. If
the conflict between the two provisions be irreconcilable, the
special provision shall prevail and shall be construed as an
exception to the general provision, unless the general provision
shall be enacted at a later session and it shall be the manifest
intention of the legislature that such general provision shall
prevail.
Subd. 2. Clauses in the same law. When, in the same
law, several clauses are irreconcilable, the clause last in
order of date or position shall prevail.
Subd. 3. Laws passed at same session. When the
provisions of two or more laws passed during the same session of
the legislature are irreconcilable, the law latest in date of
final enactment, irrespective of its effective date, shall
prevail from the time it becomes effective, except as otherwise
provided in section 645.30.
Subd. 4. Laws passed at different sessions. When
the provisions of two or more laws passed at different sessions
of the legislature are irreconcilable, the law latest in date of
final enactment shall prevail.
*******
Full effect cannot be given to both the permit law and the jails law. One
has to be construed to be an exception to the other, I believe. But which?
Which is the general provision and which the special provision? It could be
taken that the permit law is the general one (i.e., the permit is valid
everywhere) and the jail law the special one (an exception to the general
rule). OTOH, one could argue that the jail law is the general one (no guns
allowed in jails), and the permit law the special one (an exception to that
general prohibition). I don't see any obvious way to resolve this
definitively.
We have the same sort of problems with the principle that exceptions
expressed in a law exclude all other possible ones. The jail laws have an
exception for police officers, so that has to be construed to exclude all
other possible exceptions. However, the permit law also has exceptions about
which public places the permit is valid, and since jails aren't listed, it
must be construed not to except jails.
I'd bet dollars to donuts that most any judge, actually faced with the
question, would skip all such reasoning and simply say, "Allowing permit
holders to carry inside secured facilities is an absurd and unreasonable
result, and statutes must be construed to avoid absurd and unreasonable
results."
But if one does not think that allowing permit holders to carry a gun inside
a prison is an absurd or unreasonable thing on its face, what is the best
resolution of this apparent statutory conflict?
--
Bob Woolley
St. Paul, MN
[EMAIL PROTECTED]
"If I care to listen to every criticism, let alone act on them, then this
shop may as well be closed for all other businesses. I have learned to do my
best, and if the end result is good then I do not care for any criticism,
but if the end result is not good, then even the praise of ten angels would
not make the difference."
-- Abraham Lincoln
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