You may have heard the hold adage that “possession is nine-tenth’s of the law.” Although that proposition may have some merit when attempting to ferret out property disputes, the Iowa Supreme Court recently did not find it persuasive as it relates to committing the crime of carrying a dangerous weapon while intoxicated. In State v. Montreal Shorter, the Iowa Supreme Court ruled that “possession” of a firearm while intoxicated does not necessarily constitute the criminal offense of “carrying” a firearm while intoxicated. Iowa Code Section 724.4C prohibits a person from “carrying” a weapon either (1) on or about the person or (2) “within the person’s immediate access or reach while in a vehicle” if they are intoxicated.
Iowa Code Section 724.4C invalidates a permit to carry a dangerous weapon under certain circumstances when a person is intoxicated. At issue was whether Iowa Code Section 724.4C can be violated if the person is in possession of the firearm but not carrying the firearm. Interestingly, Iowa law does not define the words “carry” or “possess” thus the court relied on the ordinary definitions of those terms as well as precedent from other states to determine that “carrying is narrower than possession.” In other words, a person may be able to possess a weapon without actually carrying one while they are intoxicated and not violate the law.
Interestingly, Iowa Code Section 724.4C(2) has some exceptions built into the statute that may limit the practical effects of this ruling. For example, that code provides that you are legally able to “carry or possess” a weapon while intoxicated in (1) the persons own home, place of business, or on land lawfully owned or possessed by the person. This section also allows for the “transitory possession or use of a dangerous weapon during an act of justified self-defense or justified defense of another, provided that the possession lasts no longer than is immediately necessary to resolve the emergency.”
When breaking this statute down, there are some issues that should be considered by any permit holder. First as previously pointed out, neither the statute nor Iowa law defines “possession” or “carrying.” However, Iowa courts have concluded that “possession” can be actual or “constructive.” Actual possession is relatively straightforward and requires direct physical control over and object. Constructive possession on the other hand simply requires the power and intent to exercise control over and object. Additionally, possession can be by more than one person.
Second, although we now know that carrying is narrower than possessing, there still is not a clear definition of what constitutes “carrying” under this statute. One significant problem of not having a clear definition of carrying is whether it requires knowledge. For example, if someone were borrow their friends vehicle, get intoxicated and a loaded gun is in the console, but the driver does not know about the gun, does that invalidate his permit to carry if he did not know the gun was there?
Third, there is no clear direction on what types of situation would constitute a person being in “lawful possession” of land in order to meet this exception to the statute. Consider this: a person is on a business trip drives his/her vehicle to a hotel where they are spending the night and leaves their gun in the vehicle. The person then walk to a bar becomes intoxicated, walks back to their vehicle to get their gun to take it into the hotel room for the night. In this scenario, the person’s permit to carry may be invalid and they violated the law because they carried the gun from the car to the hotel room and the short walk from the car to the hotel room arguably was on land that was not “owned or possessed by the person.”
Finally, the law allows for the “transitory possession or use” during an act of justified self defense or defense of another. However, the law does not define “transitory possession.” Are there time constraints or geographical constraints on what constitutes transitory? Am I legally able to run two blocks from a bar where there is an active shooter situation and get my gun and run back to the aid of others while I’m intoxicated?
Although the ruling by the Iowa Supreme Court in Shorter was legally correct, it certainly could have gone a bit further by defining the act of carrying. However, what is certain from this ruling is that those scenarios where someone has a loaded gun in their car that is in the trunk or bed of the truck likely does not violate Iowa Code Section 724.4C if they are operating that vehicle while intoxicated and have a permit to carry.
