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Criminal Appellate & Post-Conviction Services

CoA Says that Deroche Doesn't Apply to Actual Possession Cases

In People v. Deroche, 299 Mich. App. 301 (2013), the Michigan Court of Appeals held that a Defendant’s Second Amendment right to keep and bear arms invalidated Michigan’s statute barring a firearm while intoxicated. In Deroche, the Defendant was at home and intoxicated. The firearm was stored elsewhere in the home, but was also under Mr. Deroche’s control and dominion. This would have met the legal requirements for “constructive possession.” The Michigan Court of Appeals held that the Second Amendment barred this constructive possession theory.

In People v. Wilder, No. 316220, declined to extend Deroche to an actual possession situation. In Wilder, there was evidence that the Defendant actually moved the firearm while intoxicated. The Court, therefore, found that the statute met the intermediate scrutinity required for a Second Amendment analysis.

Ms. Wilder had been drinking most of the day with her domestic partner. The complainant testified that the defendant brandished the gun at her after she hit the complainant, strangled her, and told her to get out of the house; the Defendant testified that she moved the firearm to a place of temporary safety from her drunken partner. She denied the brandishing.

The Court of Appeals applied a two-prong test to determine and determined that the application did not violate the Defendant ‘s Second Amendment rights. The take-away is that gun owners who choose to drink in their own home will face judicial scrutiny if they have a firearm on their premises and drink. Person’s considering drinking at home should physically lock their firearms up prior to consuming any alcohol.
People v Wilder, Court of Appeals No. 316220.