2012-823, State of New Hampshire v. Oriol Dor

accessible?” We answer the question in the negative and remand. magazine well[,] but with a loaded magazine loca ted next to it and easily . . . a firearm with no cartridge in the firearm, and no magazine in the definition of a ‘loaded pistol or revolver’ [under RSA 159:4 (2002)] encompass See Sup. Ct. R. 9. The interlocutory transfer poses one question: “Does the ruling from the 9th Circuit Court – Manchester District Division (Michael, J.). LYNN, J. This case comes before us on an interlocutory transfer without

orally, for the defendant. James B. Reis, assistant appellate defender, of Concord, on the brief and

general, on the brief and orally), for the State. Michael A. Delaney, attorney general (Nicholas Cort, assistant attorney

No. 2012 - 823 9th Circuit Court – Manchester District Division

page is: http://www.courts.state.nh.us/supreme. a.m. on the morning of their release. The direct address of the court's home reporter@courts.sta te.nh.us. Opinions are available on the Internet by 9:00 to press. Errors may be reported by E - mail at the following address: editorial errors in order that corrections may be made before the opinion goes Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Readers are requested to notify the Reporter, Supreme Court of New well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule p. 2 22 as 2

construe that language according to its plain and ordinary meaning. State v. a statute, we first look to the language of the statu t e itself, and, if possible, whole. Town of Carroll v. Rines, 164 N.H. 5 p. 2 23, 528 (2013). When interpreting the legislature’s inte nt as expressed in the words of the statute considered as a novo. State v. Lathrop, 164 N.H. 468, 469 (2012). We are the final arbiters of The interpretation of a statute is a question of law, which we review de

reasonable construction of the statute is the one offered by the defendant. the State’s reading of RSA 159:4 is plausible, we conclude that the only contains no cartridges but is located near a loaded magazine or clip. Although (1990), so that a “loaded pistol or revolver” encompasses a firearm that agreement, or connection,” Webster’s Ne w Dictionary and Thesaurus 6 p. 2 25 counters that “with” should be interpreted broadly as “denoting nearness, encompasses only a firearm that contains one or more cartridges. The State Dictionary 2626 (unabridged ed. 2002), so that a “loaded pistol or revolver” interpreted narrowly as “joined to,” Webster’s Third New International The defendant argues that “with” in the second sentence should be

(Emphasis added.)

chamber or clip in which there are loaded cartridges. shall include any pistol or revolver with a maga zine, cylinder, of business, without a valid license . . . . A loaded pistol or revolver concealed upon his person, except in his dwelling, house or place No person shall carry a loaded pistol or revolver in any vehicle or

RSA 159:4 provides, in pertinent part:

ambiguous” and transferred the question now before us. and no crime was committed.” The trial court found RSA 159:4 “potentially “[t]he firearm at issue was not loaded and therefore no license was required without a valid license . . . .” The defendant moved to dismiss, arguing that “knowingly carry[ing] a loaded pistol as defined in RSA 159:4 in a vehicle The State charged the defendant with a class A misdemeanor for

cartridge in the chamber or a magazine in the magazine well. loaded magazine in the vehicle’s glove compartment. The pistol did not have a defen dant’s vehicle and found a .40 caliber semi - automatic pistol adjacent to a See In re C.M., 163 N.H. 768, 770 ( p. 2 2012). On May 8, 2012, police searched the The following facts are drawn from the interlocutory transfer statement.

or, where the container has multiple compartments, the same compartment ammunition and has been inserted in the firearm or is in the same container magazine suitable for use in said firearm which magazine contains such case of a firearm which utilizes a detachable magazine, [loaded] shall mean a be used to discharge such firearm.”); 18 Pa. Cons. Stat. § 6102 (2012) (“In the by one who, at the same time, possesses a quantity of ammunition which may means any firearm loaded with ammunition or any firearm which is possessed explicitly. See, e.g., N.Y. Penal Law § 265.00 (15) (201 p. 3 3) (“‘Loaded firearm’ meaning – i.e., as encompassing firearms “near” ammunition – have done so Those jurisdictions that have defined “loaded” more broadly than the common that is located near a detacha ble magazine or clip that contains cartridges. further to include a pistol or revolver that does not contain any cartridges but The State argues that the meaning of “loaded” should be expanded

Giant Pump Co., 16 p. 3 3 N.H. 727, 731 (2012). appears a different meaning was intended.” Phaneuf Funeral Home v. Little preserve the common and approved usage of a word “unless from the statute it consistent with the common and approved usage of “loaded.” We aim to can be disch arged through the normal operation of the firearm. This reading is pistol or revolver containing a cylinder, magazine, or clip with a cartridge that only a pistol or revolver that contains a cartridge in the chamber, but also a accepted meanings above. Therefore, a “loaded pistol or revolver” means not to clarify that “loaded” should be defined according to the broader of th e two We conclude the legislature intended the second sentence of RSA 159:4

id. at 1 p. 3 326; People v. Clark, 53 Cal. Rptr. 2d 99, 102 (Ct. App. 1996). revolver containing a cartridge in any posi tion from which it can be fired, see containing a cartridge in the chamber, see id., or, more broadly, a pistol or on these definitions, a “loaded” pistol or revolver may mean a pistol or revolver cartridge in the chamber of a firearm.” Id. at 1325 (emphasis added). Based carrier, device, machine, or container; [specifically] to insert the charge or also the past participle of the verb “load,” which means “to put a load on or in a New In ternational Dictionary, supra at 1326 (emphasis added). “Loaded” is here, “loaded” is defined as “containing an explosive charge.” Webster’s Third “loaded” pistol or revolver in any vehicle without a valid license. As pertinent The first sentence of RSA 159:4 prohibits a person from carrying a

(201 p. 3 3). legislature did not see fit to include. Evans v. J Four Realty, 16 p. 4 4 N.H. 570, 572 not consider what the legislature might have said or add language that the of the policy sought to be advanced by the entire statutory scheme. Id. We will apply statutes in light of the legislature’s intent in en acting them, and in light isolation, but in the context of the entire statutory scheme. Id. Our goal is to Matton, 163 N.H. 411, 412 (2012). We do not read words or phrases in 4

vehicles, whether moving or stationary, or used for hunting or otherwise.” Shaw, 102 N.H. at 500. laws,” but also constitutes “a prohibition against having or carryi ng a loaded gun in certain proscribed by RSA 207:7, II is not limited to constituting “evidence of a violation of the gaming In State v. Shaw, 102 N.H. p. 4 498 (1960), we held that, as amended in 1947 and 1949, the conduct 1

section of the Penal Code contained a broader definition of the word). common meaning in a section of the Health and Safety Code even though a Clark, 53 Cal. Rptr. 2d at 103 - 0 p. 4 4 (interpreting “loaded” according to its “unless from the statute it appears a different meaning was intended”); cf. 163 N.H. at 731 (we aim to preserve the common and approved usage of a word common meaning of the term “loaded” as used in RSA 159:4. See Phaneuf, persuaded that this statute is indicative of legislative intent to depart from the conflicting inferences that may be drawn from RSA 207:7, II, we are not unattached to, a clip or magazine containing a cartridge. In light of the as “loaded” a broader category of firearms, i.e., those located near, but that the legislature intended by use of the wor d “with” in RSA 159:4 to include cartridge in an attached magazine or clip as “lo aded,” it seems highly unlikely that clause). Given that the legislature did not regard a firearm with a “loaded” rifle or shotgun (otherwise there would have been no ne ed to include attached to the gun (rather than in the chamber) would not qualify as a legislature assum ed a rifle or shotgun with a cartridge in a magazine or clip T he incl usion of the last clause in RSA 207:7, II arguably shows that the (emphasis omitted)). Th at statute, however, also supports a contrary inference. related statutes, we assume that the legislature intended something differ ent.” 159 N.H. 318, 323 (2009) (“[W]here the legislature uses different language in broader application than RSA 207:7, II. See In re Guardianship of Williams, support s the inference that the legislature in tended RSA 159:4 to have a “attached to the gun,” the absence of such language in RSA 159:4 arguably RSA 207:7, II (emphasis added). Because RSA 207:7, II includes the phrase 1 rifle or shotgun wi th a cartridge in a magazine or clip attached to the gun.” moving or stationary, a cocked crossbow, a loaded rifle or loaded shotgun, or a have or carry, in or on a motor vehicle, OHRV, snowmobile, or aircraft, whether to Fish and Game” chapter, and states, in pertinent part: “No person shall for the State’s position. The statute is located under the “General Provisions as We note that RSA 207:7, II (2011) could be read to provide some support

language that the legislature did not see fit to include.”). did not intend this reading. Cf. Evans, 16 p. 4 4 N.H. at p. 5 572 (“[We will not] add pistols or revolvers “near” ammunition. Therefore, we conclude the legislature the legislature intended “loaded” to be defined so broadly as to encompass firearms in motor vehicles). In contrast, RSA 159:4 provid es no indication that 2013) (defining “unloaded” for purposes of a statute regulating the handling of thereof as the firearm.”); Ohio Rev. Code Ann. § 2923.16(K)(5)(a) (West Supp. 5

established case law about how “near” a pistol or revolver would have to be to a Here, there is no guidance in either the broader statutory scheme or

at 703. in the revocation of his or her license to carry loaded weapons concealed.” Id. “gives notice to a person of ordinary intelligence of the conduct that may result carry a concealed weapon. Id. at 702 - 03. We concluded that the sta tute statutes and case law describing individuals who are deemed un suitable to applied judicial narrowing to the term “suitable person” by drawing upon purpose” with reference to a statute l isting proper purposes. Id. Then, we as an unsuitable person.” Id. at 702. First, we interpreted “improper a licensee’s use of a weapon for an improper purpose or to the licensee’s status entire statutory scheme, we reasoned that the phrase “just cause” “refer[red] to pistol or revolver for “just cause.” Id. at 701 - 03. Read in the context of the permitted the issuing authority to suspend or revoke a license to carry a loaded argument that RSA 1 p. 5 59:6 - b (2002) was unconstitutionally vague because it decline to apply “judicial narrowing.” In Bleiler, we rejected the defendan t’s this issue. However, even if we were to adopt the State’s reading, we still would reading of a statute). Because we reject the State’s reading, we do not reach (2007) (applying “judicial narrowing” to avoid an unconst itutionally vague any vagueness. See Bleiler v. Chief, Dover Police Dep’t, 155 N.H. 693, 702 - 03 statute unconstitutionally vague, we may apply “judicial narrowing” to clarify The State argues that even if i ts reading of RSA 159:4 would render the

a pistol or revolver either contains a cartridge in such a position or it does not. cartridge in any position from which it can be fired eliminates the uncertainty: interpreting a “loaded p istol or revolver” as a pistol or revolver containing a magazine or clip to constitute a violation of RSA 1 p. 5 59:4. In contrast, would have to guess at how “near” a pistol or revolver must be to a loaded p. 6 610, 621 (1984). Under the State’s reading, a person of ordinary intelligence guess at its meaning and differ as to its application. State v. Wong, 12 5 N.H. an act in terms so vague that men of ordinary intelligence must necessarily criminal statute is void for vagueness when it forbids or requires the doing of she could not reasonably understand to be proscribed.” (quotation omitted)). A is that no person should be held criminally responsible for conduct which he or State v. Pratte, 158 N.H. 45, 48 (2008) (“The underlying principle of vagueness with constitutional rights wher ever r easonably possible.” (quotation omitted)); construction that a legislative enactment will be construed to avoid conflict State v. Ploof, 162 N.H. 609, 620 (2011) (“It is a basic principle of statutory render the statut e unconstitutionally vague. See N.H. CONST. pt. I, art. 15; Furthermore, we reject the State’s reading of RSA 159:4 because it could 6

crime. United States v. Lo max, 293 F.3d 701, 704 (4th Cir. 2002). criminalize the “possession” of a firearm “in furtherance of” a crime of violence or drug trafficking firearm by the defendant. Id. at 144. Congress subsequently amended 18 U.S.C. § 924(c) to 4 p. 6 6. Instead, the Court held that “use” under the statute r equired “active employment” of the constitute “use” during a crime of violence or drug trafficking crime. See Bailey, 516 U.S. at 144 - Bailey rejected the theory that mere “proximity and accessibility” of a firearm is sufficient to 3 establishes a criminal offense. We note that, unlike RSA 159:6 - b, the regulatory statute at issue in Bleiler, RSA 159:4 2

(9th Cir. 199 p. 6 6). narrow construction. See United States v. T hompson, 82 F.3d 849, 852 - 53 3 decision in Bailey v. United States, 516 U.S. 137 (1995), which gave “use” a overruled or at least significantly limited by the Supreme Court’s subsequent § 924(c)(1), including the term “use.” Those precedents, however, were either existing precedent giving a broad construction to other terms of 18 U.S.C. court drew support for its broad construction of the term “equipped” on then - The State’s reliance on Rodriquez is misplaced. Firs t, the Rodriguez

particular need.” Id. at 84. silencer because “they [could] efficiently be pressed into joint service to meet a a relation one to the other.” Id. at 83. Thus, the pistol was “equipped” with the “equipped” in the statute did not mean “attached to,” but, rather, “stand[ing] i n thirty years.” Id. at 81 (emphasis added). The court determined that the word the firearm . . . is equipped with a firearm silencer . . . to imprisonment for carries a firearm, shall . . . be sentenced to imprisonment for fiv e years, and if “Whoever, during and in relation to any . . . drug trafficking crime . . . uses or violating 18 U.S.C. § 924(c)(1) (1993), which provided in pertinent part: unattached, in a briefcase, the governm ent charged the defendant with adduce evidence at trial to demonstrate that a pistol and silencer were found, and found a large cache of firearms and drugs. Id. at 80 - 81. Expecting to reading of RSA 15 9:4. In Rodriguez, police searched the defendant’s apartment Supp. 79 (E.D.N.Y. 1994), aff’d, 53 F.3d 545 (2d Cir. 1995), to support its At oral argument, th e State cited United States v. Rodriguez, 841 F.

legislature to enact laws defining crimes . . . .” (quotation omitted)). include.”); State v. Lamy, 158 N.H. 511, 521 (2009) (“[I]t is th e province of the at 5 p. 7 72 (“[We will not] add language that the legislature did not see fit to – rewriting statutes is a task reserved for the legislature. See Evans, 1 p. 6 64 N.H. statutes cited earlier in this opinion. This w ould go beyond judicial narrowing to add language similar to that contained in one or more of the out - of - state uncertainty resulting from its reading of RSA 159:4, we would effectively have Therefore, as the State s eems to concede, in order to clarify the substantial loaded magazine or clip for it to be considered “loaded.” See RSA ch. 159. 2 7

outside the home as inside”). the [Second Amendment] confers a right to bear arms for self - defense, which is as important Madigan, p. 7 702 F.3d 933, 942 (7th Cir. 2012) (stating that “[t]he Supreme Court has decided that “the government may regulate the carrying of concealed weapons outside of the home”); Moore v. (citation omitted)); Hightower v. City of Boston, 693 F.3d 61, 73 (1st Cir. 2012) (concluding that and the standards for determining when and how the right can be regulate d by a governm ent.” at their zenith within the home. What we do not know is the scope of that right beyond the home Cir. 2012) (“What w e know from [Heller and McDonald] is that Second Amendment guarantees are 130 S. Ct. 3020, 3026 (2010); see also Kachalsky v. County of Westchester, 701 F.3d 81, 89 (2d See District of Columbia v. Heller, 554 U.S. 570, 635 - 36 (2008); McDonald v. City of Chicago, Ill., 4

1995). Brown v. Secretary of Health & Human Services, 46 F.3d 102, 108 (1st Cir. law.” Rodriguez v. United States, 480 U.S. 522, 525 (198 p. 7 7) (per curiam); see assume that whatever furthers the statute’s primary objective must be the observed, “it frustrates rather than effectuates legislative int ent simplistically to greater extent than our construction. But, as the Supreme Court has aptly arguably advances the goal of the statute – protecting public safety – to a Finally, we acknowledge the Sta te’s point that its reading of RSA 159:4

threatens to inhibit the exercise of constitutionally protected rights.”). factor affecting the clarity that the Constitution demands of a law is whether it Hoffman Estates, 455 U.S. 4 p. 8 89, 499 (1982) (“[P]erhaps the most important undoubtedly reach some untoward results.”); Hoffman Estates v. Flipside, obligation to inquire at their peril into compliance with regulations, we would suggestion that dangerous and regulated items place their owners under an U.S. at 614 (“If we were to accept as a general r ule the Government’s that conduct which is allowed and that which is prohibited. Cf. Staples, 511 i nterpret RSA 159:4 narrowly so as to set forth a clear demarcation between CONST. amends. II, XIV; N.H. CONST. pt. I, art. 2 - a. For these reasons, we 4 U.S. 600, 612 (1994), but also implicates constitutional rights, see U.S. widespread and generally accepted as lawful, see Staples v. United States, 511 country, ownership and use of standard pistols and revolvers is not only (describing a silencer as a “gangster - type” weapon). By contrast, in t his see also United States v. Schrum, 346 F. Supp. 53 p. 7 7, 539 (E.D. Va. 1972) physical force.” United States v. Huffhines, 967 F.2d 314, 321 (9th Cir. 1992); thus demonstrates a disregard of law and a substantial risk of improper practically of no use except for a criminal purpose. . . . Possession of a silencer penalty of up to ten years imprisonment and $10,000 fine). “[A] silencer is (receiving or possessing a n unregistered silencer is a federal crime subject to short - barreled rifles and shotguns); 26 U.S.C. §§ 5861(d), 5871 (2006) same category as other highly regulated firearms such as machineguns and (quotation omitted); see 26 U.S.C. § 5845(a) (2006) (grouping silencers in the States v. Perkins, 4:08CR3064, 2008 WL 4372821, at *4 (D. Neb. 2008) unusual weapons” that the government can prohibit for individual use. United More fundamentally, silencers are categorized as “dangerous and 8

DALIANIS, C.J.