Unbelievable. Not only has the Minnesota Supreme Court made drive-by shooting a “victimless crime,” the Court sentenced a man to 9 years in prison for simply handing a gun to another. And the worst of it: no one was shot. Only minor property damage resulted.
Drive-by shooting refers to an incident in which someone fires a gun from a vehicle at another vehicle, a person, a structure, or another stationary object. Most often, drive-by shootings involve multiple suspects and multiple victims. Although some drive-by shootings result in the victim’s death, many result in injuries to innocent bystanders or no injuries at all.
The drive-by shooting law is found in Minnesota Statute § 609.66:
(a) Whoever, while in or having just exited from a motor vehicle, recklessly discharges a firearm at or toward another motor vehicle or a building is guilty of a felony and may be sentenced to imprisonment for not more than three years or to payment of a fine of not more than $6,000, or both.
(b) Any person who violates this subdivision by firing at or toward a person, or an occupied building or motor vehicle, may be sentenced to imprisonment for not more than ten years or to payment of a fine of not more than $20,000, or both.
In State v. Ferguson, Michael Ferguson was convicted of one count of felony drive-by shooting at an occupied building and eight counts of second-degree assault, each by aiding and abetting.
Here’s what happened in the case. Ferguson and his two brothers drove to a house in St. Paul to talk with someone about a dog one of the brothers had purchased. The three men were not allowed in and from a second story window an occupant told them to leave. The brothers returned to their van. As the van passed the house, Ferguson handed his brother Marcus a gun. Marcus fired approximately six rounds at the house. Eight people were inside – six children, BUT no one was hit. No one was injured. Besides minor property damage, there was no lasting result of this incident.
Unlike the crime of assault, the Supreme Court, FOR THE FIRST TIME, found that the drive-by shooting statute does not require the occupants of the building to be injured, put in fear, or even aware of the shooting. Essentially, the Court has determined that if they are going to make this a victimless crime, they want the sentence to be extended for every non-victim that can be found.
Minnesota law “prohibits multiple sentences, even concurrent sentences, for two or more offenses that were committed as part of a single behavioral incident.” In other words, Minnesota law has established a “one sentence per victim” rule. Here, the majority opinion finds that the occupants of the apartment are not victims of the drive-by shooting but are victims of assault. Thus, the Court allows Ferguson to be sentenced for both the drive-by shooting statute AND the assault statute.
The dissent offers several reasons why the majority opinion turns Minnesota law on its head: (1) Minnesota law limits punishment to a single allegation where a single behavioral incident result(s) in violation of more than one criminal statute, (2) the new theory that occupants of a building are not victims of drive-by shooting is not supported by Minnesota law (3) Minnesota law requires that punishment can not be grossly out of proportion with the defendant’s culpability. Re-read the facts of the case and let us know what you think of Mr. Ferguson’s sentence.
Here is why this decision is dangerous: think of an incident where someone fires a gun at a high-rise apartment with hundreds of occupants. According to Ferguson, each and every one of these occupants will enhance the sentence for the defendant. Lesson: if you are going to shoot at a shared housing complex, shoot at a duplex.
Read the court’s opinion in its entirety: State v Ferguson re no victims