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Court tells Manchester police a 'loaded gun' must have bullets in it

New Hampshire Union Leader

August 07. 2013 12:23PM
A 9mm Smith & Wesson pistol with a variety of handgun ammunition. 

CONCORD – A loaded gun means exactly that, a gun that's loaded with ammunition, according to a state Supreme Court ruling made public Wednesday.

The decision means a misdemeanor charge of illegally possessing a loaded handgun without a license will be dropped against Oriol Dor of Manchester.

Dor was arrested on May 8, 2012, after police searched his vehicle and found a .40 caliber semi-automatic pistol with a loaded magazine next to it in the glove box. The pistol did not have a cartridge in the chamber, and the magazine well was empty.

Still, police charged Dor with a class A misdemeanor for "knowingly carry(ing) a loaded pistol as defined in RSA 159:4 in a vehicle without a valid license."

Dor filed a motion to dismiss the charge, arguing no license was required because the gun wasn't loaded and no crime was committed.

"We would have preferred it go the other way," said assistant attorney general Nicholas Cort, who argued the case before the Supreme Court. Assistant Manchester city solicitor Jeremy Harmon, the prosecutor on the case, was in trial Wednesday and unavailable for comment. A message left for appellate defender James B. Reis was not immediately returned.

Judge Gregory E. Michael of 9th Circuit Court, Manchester District Division, found the law "potentially ambiguous" and, without issuing a ruling, sent the case to the Supreme Court for an interlocutory appeal.

The question before the court was: Does the definition of a "loaded pistol or revolver" (under RSA 159:4 (2002) encompass … a firearm with no cartridge in the firearm, and no magazine in the magazine well(,) but with a loaded magazine located next to it and easily accessible?

The court ruled it did not.

The pertinent part of the statute, according to the court, is: "A loaded pistol or revolver shall include any pistol or revolver with a magazine, cylinder, chamber or clip in which there are loaded cartridges."

Dor, according to the court decision, argued the word "with" should be interpreted narrowly as "joined to" per Webster's Third New International Dictionary, 2002 edition, so that a "loaded pistol or revolver encompasses only a firearm that contains one or more cartridges."

The state contended "with" should be interpreted broadly as "denoting nearness, agreement, or connection" per Webster's New Dictionary and Thesaurus of 1990, so that a "loaded pistol or revolver" encompasses a firearm that contains no cartridges but is located near a loaded magazine or clip.

"Although the state's reading of RSA 159:4 is plausible, we conclude that the only reasonable construction of the statute is the one offered by the defendant," the court said in ruling in the defense's favor.

The court said in order for a pistol or revolver to be considered "loaded" under the state statute, it must contain a cartridge in the chamber or must contain a magazine, cylinder, or clip inserted in or otherwise adjoined to the firearm such that it can be discharged through normal operation.

The court also said if the Legislature disagrees with its interpretation of RSA 159:4, it is free, subject to constitutional limitations, to amend it.

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