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Thread: Even the AG office has it wrong...

  1. #1
    Campaign Veteran slapmonkay's Avatar
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    Even the AG office has it wrong...

    While corresponding with the Attorney Generals office regarding an open carry opinion, I received an initial response from an assistant attorney general with the following paragraph:

    Quote Originally Posted by Asst Attorney General WA
    ...

    The Attorney General’s Office does not have an official position on open carry of guns. However it is safe to state that Washington is not an “open carry state” as that term is generally understood. Specifically, RCW 9.41.270 addresses open carry of weapons. RCW 9.41

    ...
    I am continuing my correspondence with them and will be requesting a review of this assistant attorney generals response.
    I Am Not A Lawyer, verify all facts presented independently.

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    Regular Member acmariner99's Avatar
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    Well, that is discouraging. Apparently this particular individual has never heard of State vs. Cassad. I'm very curious as to what their response will be.

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    Regular Member rapgood's Avatar
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    Quote Originally Posted by slapmonkay View Post
    While corresponding with the Attorney Generals office regarding an open carry opinion, I received an initial response from an assistant attorney general with the following paragraph:

    I am continuing my correspondence with them and will be requesting a review of this assistant attorney generals response.
    What's the name of the ignorant idiot?
    Rev. Robert Apgood, Esq.

    A right cannot be lost by exercising it. McDonald v. Chicago, 561 U.S. 3025, 130 S. Ct. 3020, 3021, 177 L. Ed. 2d 894 (2010) (citing Near v. Minn., 283 U.S. 697 (1931)).

    Although IAAL, anything I say here is not legal advice. No conversations we may have privately or otherwise in this forum constitute the formation of an attorney-client relationship, and are not intended to do so.

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    Campaign Veteran slapmonkay's Avatar
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    Quote Originally Posted by rapgood View Post
    What's the name of the ignorant idiot?
    I will wait until I have talked to them further to try and resolve there misunderstanding and receive opinion on my original inquery. No need to bombard them yet, even though being in the firearm division they should already know the law...
    I Am Not A Lawyer, verify all facts presented independently.

    It's called the "American Dream" because you have to be asleep to believe it. - George Carlin

    I carry a spare tire, in case I have a flat. I carry life insurance, in case I die. I carry a gun, in case I need it.

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    Regular Member Vitaeus's Avatar
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    Casad is unpublished and not useable for precedent. State v. Spencer is the case that provides the explanation of the factors needed to fall afoul of .270

    "in a manner, under circumstances, and at a time and place that either manifests an intent to intimidate another or that warrants alarm for the safety of other persons." you need all the factors and a holstered firearm being visible doesn't hit all of them, without adding additional actions or circumstances. IMO, YMMV.


    "[4, 5] We do not find these arguments persuasive. First, the statute does not prevent a person from
    carrying weapons in self-defense. Weapons may be carried in response to "presently threatened unlawful
    force by another". RCW 9.41.270(3)(c). If there is no present threat, weapons must be carried in a
    manner that does not warrant alarm in others. The statute does not prohibit the ownership of weapons,
    and it limits the possession of certain weapons only when they are carried or displayed in a manner and
    under circumstances that warrant alarm. Thus, for example, the statute does not prohibit an individual
    from legally carrying a concealed weapon such as the .45-caliber pistol Spencer carried under his jacket.
    We conclude that the statute's restriction on an individual's right to bear arms in self-defense is minimal.
    The statute is narrowly drawn and demonstrates the Legislature's awareness of and concern with
    preserving the rights of the individual.
    In addition, the statute does not have an undue chilling effect on the right to bear arms. As the Superior
    Court found, the statute only prohibits the carrying or displaying of weapons when objective
    circumstances would warrant alarm in a reasonable person. «4»
    «4» These circumstances may include, as in the present case, the fact that the weapon is being carried in a
    residential neighborhood, the time of day, the urban environment, the manner in which the weapon is
    carried, the size and type of weapon, and the fact that the weapon has a clip visibly attached."

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    Regular Member rapgood's Avatar
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    Quote Originally Posted by Vitaeus View Post
    Casad is unpublished and not useable for precedent. State v. Spencer is the case that provides the explanation of the factors needed to fall afoul of .270
    Yep.
    Rev. Robert Apgood, Esq.

    A right cannot be lost by exercising it. McDonald v. Chicago, 561 U.S. 3025, 130 S. Ct. 3020, 3021, 177 L. Ed. 2d 894 (2010) (citing Near v. Minn., 283 U.S. 697 (1931)).

    Although IAAL, anything I say here is not legal advice. No conversations we may have privately or otherwise in this forum constitute the formation of an attorney-client relationship, and are not intended to do so.

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    Regular Member EMNofSeattle's Avatar
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    Quote Originally Posted by acmariner99 View Post
    Well, that is discouraging. Apparently this particular individual has never heard of State vs. Cassad. I'm very curious as to what their response will be.
    State v. Casad is not a published opinion, It holds no legal weight and is not binding.

    The statue in question reads

    It shall be unlawful for any person to carry, exhibit, display, or draw any firearm, dagger, sword, knife or other cutting or stabbing instrument, club, or any other weapon apparently capable of producing bodily harm, in a manner, under circumstances, and at a time and place that either manifests an intent to intimidate another or that warrants alarm for the safety of other persons

    It does not state "open carry is illegal"

    But look at the bolded part, "in a manner" "under circumstances" "warrants (as opposed to "causes") Alarm.

    This has been mentioned before on the forums, watch this video


    Obviously pickles CAUSE her alarm, but pickles do not WARRANT alarm. her fear is irrational.

    under circumstances generally means the state must prove that the circumstances warranted alarm

    State v Spencer a court upheld Mr. Spencers conviction on the basis that his carrying a AK style rifle with an attached magazine down the street late at night avoiding eye contact with passing cars "warranted alarm" but they had a golden oppurtunity to say that carrying a firearm in and of itself warrants alarm, but instead

    the statute
    only prohibits the carrying or displaying of weapons when objective circumstances would warrant alarm in a reasonable person.
    4
    Thus, the restriction applies only in a limited number of situations. Furthermore, the prohibition is not so vague that it would
    prevent persons of common intelligence from ever carrying a weapon on the street
    .
    This language would seem to imply that even in affirming Spencer's conviction that the statute is not and never was intended to control open carry.

    If Open carry were blatantly illegal how come most of the people on this forum haven't been charged? The State Patrol certainly saw many OCers on the steps of the capital building and did nothing even when a hoplophobe complained to them, how come Vitaeus and Bat and 1245A aren't awaiting trial for OCing at a public event hosted by the Port Orchard Police in front of 15 or so LEOs of assorted agencies?

    To the best of my knowledge, only Spencer, Josh and Kurk Kirby have been prosecuted, and only spencer and Josh were convicted. Certainly Bellingham PD has a reason to silence SVG and ring him up on charges, but they haven't successfully prosecuted him.

    Also that does not appear to be an "opinion" and AGO can only be requested by state or county elected officials, the AGs office can and will provide general legal responses, but does not provide official opinions or legal advice, therefore I do not believe that corrospondence you recieved constitutes legal advice or holds any weight in court
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    Campaign Veteran gogodawgs's Avatar
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    Ask her why her boss is in this picture, in downtown Seattle, with several SPD standing nearby doing nothing?

    Click image for larger version. 

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    Campaign Veteran gogodawgs's Avatar
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    We look to State v. Maciolek to find what the court thinks of 'warrant alarm'...

    The petitioners rely quite heavily on the fact that similar language, warrants alarm for safety of persons or property, was found unconstitutionally vague in BELLEVUE v. MILLER. In BELLEVUE, however, the words (prowling or wandering), which qualified the phrase, warranting alarm for safety of persons or property, were also vague and provided no guidelines for the statute's enforcement. In fact, the scope of the ordinance was found to be exceedingly broad. BELLEVUE, at 544. BELLEVUE, however, is not analogous. Unlike the language of the statute in BELLEVUE, the language in RCW 9.41.270, specific weapons, qualifies the phrase "warrants alarm for the safety of other[s]" giving the statute a narrow scope. The weapons listed are not inherently vague like wander and prowl and are sufficiently definite so as to prevent ad hoc determination of criminality. Additionally, even if the phrase "warrants alarm" is vague, if a term or phrase can be made definite by a reasonable construction we will narrowly construe it and uphold the statute. STATE v. MARTINEZ, 85 Wn.2d 671, 538 P.2d 521 (1975).

    If a weapon is displayed in a manner, under circumstances and at a time and place so that it poses a threat to another person, such a display would warrant alarm for the safety of another. Thus, narrowly construing the phrase to apply to only conduct that poses a threat to others gives the phrase a narrow and definite focus and saves it from vagueness. CF. BELLEVUE v. MILLER, SUPRA at 547. Such a construction is also consistent with the statute's purpose, which is to prevent someone from displaying dangerous weapons so as to reasonably intimidate members of the public. House Journal, 41st Legislature (1969), at 201.
    The gun must fit all of the defined. It must be displayed in a 'manner' AND 'under circumstances' AND at a time AND place 'so that it poses a threat to another person'.

    A gun carried in a holster does not pose a threat to another person.
    Last edited by gogodawgs; 10-03-2012 at 09:39 PM.
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    Regular Member acmariner99's Avatar
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    My apologies for not realizing that the Casad case was not binding. I have heard it referenced several times in regards to OC's legality.

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    Regular Member Vitaeus's Avatar
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    I wish it was published, it makes very clear that the mere fact of having a weapon on you is not enough to generate reasonable articulable suspicion(RAS) in a LEO and that Terry v. Ohio is very limited in Washington compared to other states. I suppose teh Court felt that the findings in this case were so self evident that it did not need to be reiterated.

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    Regular Member sudden valley gunner's Avatar
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    There is a way of mentioning Casad in a round about way.

    Since it is an appellate case, you mention the original conviction and that that conviction was overturned.

    Thank you Bellingham City attorney.
    I am not anti Cop I am just pro Citizen.

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    Regular Member Schlepnier's Avatar
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    Thumbs up

    Quote Originally Posted by Vitaeus View Post
    I wish it was published, it makes very clear that the mere fact of having a weapon on you is not enough to generate reasonable articulable suspicion(RAS) in a LEO and that Terry v. Ohio is very limited in Washington compared to other states. I suppose teh Court felt that the findings in this case were so self evident that it did not need to be reiterated.
    However isn't that point clear enough in the 7th circuit case of deberry V US which made clear carry of a firearm where lawful cannot be used as grounds for reasonable suspicion.

    "The only fact that saves the officer's stop of DeBerry, in my opinion, is the fact that it is unlawful in Illinois to carry a concealed weapon.   The tipster informed the police that DeBerry was armed, and it appears from the facts before us that the weapon was not in plain view.   I do not agree that this case would necessarily come out the same way if Illinois law, like the law of many states, authorized the carrying of concealed weapons.   At that point, the entire content of the anonymous tip would be a physical description of the individual, his location, and an allegation that he was carrying something lawful (a cellular telephone? a beeper? a firearm?).   This kind of nonincriminatory allegation, in my view, would not be enough to justify the kind of investigatory stop that took place here.   It would mean, in states that permit carrying concealed weapons, that the police no longer need any reason to stop citizens on the street to search them.   However, we do not have that situation.   Because I therefore consider the Court's comments on lawful concealed weapons to be dicta, I concur in the result reached today."
    +thought for the day+
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    Regular Member Difdi's Avatar
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    Quote Originally Posted by gogodawgs View Post
    The gun must fit all of the defined. It must be displayed in a 'manner' AND 'under circumstances' AND at a time AND place 'so that it poses a threat to another person'.

    A gun carried in a holster does not pose a threat to another person.
    If simple possession of a legal object in public did warrant alarm, it would lead to all kinds of problems. A situation that reasonably warrants alarm also reasonably warrants self-defense. Are police officers exempted from getting in trouble for warranting alarm? If not, that's one hell of a can of worms...

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    Regular Member EMNofSeattle's Avatar
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    Quote Originally Posted by Schlepnier View Post
    However isn't that point clear enough in the 7th circuit case of deberry V US which made clear carry of a firearm where lawful cannot be used as grounds for reasonable suspicion.

    "The only fact that saves the officer's stop of DeBerry, in my opinion, is the fact that it is unlawful in Illinois to carry a concealed weapon.   The tipster informed the police that DeBerry was armed, and it appears from the facts before us that the weapon was not in plain view.   I do not agree that this case would necessarily come out the same way if Illinois law, like the law of many states, authorized the carrying of concealed weapons.   At that point, the entire content of the anonymous tip would be a physical description of the individual, his location, and an allegation that he was carrying something lawful (a cellular telephone? a beeper? a firearm?).   This kind of nonincriminatory allegation, in my view, would not be enough to justify the kind of investigatory stop that took place here.   It would mean, in states that permit carrying concealed weapons, that the police no longer need any reason to stop citizens on the street to search them.   However, we do not have that situation.   Because I therefore consider the Court's comments on lawful concealed weapons to be dicta, I concur in the result reached today."
    7th Circuit isn't binding here either, we're in the 9th circuit. The rulings binding in this state would be

    State Appeals Court (published) --> State Supreme Court----> US District Court in Seattle -----> 9th Circuit ----> SCOTUS
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    Regular Member sudden valley gunner's Avatar
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    Quote Originally Posted by EMNofSeattle View Post
    7th Circuit isn't binding here either, we're in the 9th circuit. The rulings binding in this state would be

    State Appeals Court (published) --> State Supreme Court----> US District Court in Seattle -----> 9th Circuit ----> SCOTUS
    But it can set a precedent and be cited in other districts/courts.
    I am not anti Cop I am just pro Citizen.

    U.S. v. Minker, 350 US 179, at page 187
    "Because of what appears to be a lawful command on the surface, many citizens, because
    of their respect for what only appears to be a law, are cunningly coerced into waiving their
    rights, due to ignorance." (Paraphrased)

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    Regular Member EMNofSeattle's Avatar
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    Quote Originally Posted by sudden valley gunner View Post
    But it can set a precedent and be cited in other districts/courts.
    that is correct, and the 9th circuit may well have accepted that ruling or not, I'm simply pointing out not to put your full faith in other circuit's rulings.
    they love our milk and honey, but they preach about some other way of living, when they're running down my country man they're walkin' on the fightin side of me

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    Regular Member hermannr's Avatar
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    This discussion just shows, we need to elect a gun freindly legislature and fix the rest of Lowry's garbage.

    I would personally like to see .270 just go away (be repealed) but being a realist I would settle for another "does not apply to:" bullet that specifically stated "a pistol in a holster on your hip" is exempt from .270

    I also want the unloaded in a vehicle if unlicensed to go away. RCW 9.41.050(2)(a) For long guns too. The poaching argument is BS. Those that poach game don't care what the law is. Oh yes, that includes the snowmobile "weapons" restriction too.

    Oh, BTW: Slapmonkey...if you want a real AG opinion, and have it published, you need to work with you state senator or representitive, or your City/county council and have THEM request the opinion. The AG is the State government's attorney, not the citizen's attorney, and even then, an AG opinion is just that, an opinion, not law.
    Last edited by hermannr; 10-04-2012 at 01:09 PM.

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    Regular Member papa bear's Avatar
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    when i first read the op it reminded me of WV AG saying that only WV residents could carry in that state, non residents could not. we asked show us the law. since there wasn't one, it didn't mean anything

    then the VA AG came out with the opinion, that carry in church for self defense was a good and sufficent reason. there was law to back this up

    just goes to show. personal opinion does cloud the high prosecutors
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    Forgive my ignorance, but what does it mean for a case to be "published". If it was ruled on isn't that precedence in itself?

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    Campaign Veteran slapmonkay's Avatar
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    Quote Originally Posted by hermannr View Post
    Oh, BTW: Slapmonkey...if you want a real AG opinion, and have it published, you need to work with you state senator or representitive, or your City/county council and have THEM request the opinion. The AG is the State government's attorney, not the citizen's attorney, and even then, an AG opinion is just that, an opinion, not law.
    I am aware. Thanks for making sure though.
    I Am Not A Lawyer, verify all facts presented independently.

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    Regular Member Lammo's Avatar
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    Quote Originally Posted by Lovenox View Post
    Forgive my ignorance, but what does it mean for a case to be "published". If it was ruled on isn't that precedence in itself?
    Under RAP (Rules of Appeallate Procedure) 12.3(d), the court can decide that an opinion has no value as precedent and decide not to publish it. This keeps us from having thousands of published opinions that make "routine" decisions. The specific criteria to be used are:

    In determining whether the opinion will be published in the Washington Appellate Reports, the panel will use at least the following criteria: (1) Whether the decision determines an unsettled or new question of law or constitutional principle; (2) Whether the decision modifies, clarifies or reverses an established principle of law; (3) Whether a decision is of general public interest or importance; or (4) Whether a case is in conflict with a prior opinion of the Court of Appeals. (link: http://www.courts.wa.gov/court_rules...eid=apprap12.3)

    RAP 14.1 prohibits citation to unpublised opinions. (link: http://www.courts.wa.gov/court_rules...uleid=gagr14.1)

    Under these criteria, Casad should have been published as, to my tiny little mind, the case clearly clarifies an established principle of law and addresses a matter of general public interest. Personally, I use language from unpublished opinions all the time, I just don't cite the cases I take the language from. YMMV.
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    Opt-Out Members BigDave's Avatar
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    Quote Originally Posted by slapmonkay View Post
    While corresponding with the Attorney Generals office regarding an open carry opinion, I received an initial response from an assistant attorney general with the following paragraph:
    Asst Attorney General WA
    ...

    The Attorney General’s Office does not have an official position on open carry of guns. However it is safe to state that Washington is not an “open carry state” as that term is generally understood. Specifically, RCW 9.41.270 addresses open carry of weapons. RCW 9.41

    I am continuing my correspondence with them and will be requesting a review of this assistant attorney generals response.
    It seems several are reading more into this then what is actually stated, the Attorney Generals Office does not have an official position on open carry of guns, for those who differ then please show me where they do have an official position?

    Safe to state that Washington is not an open carry state, sure as what would be the repercussions to say it is or is not?

    RCW 9.41.270 addresses open carry of weapons, yes not as well as we would hope but it does address it.

    The AG Office position from what I have read and been told by the AG Office they do not give legal advice to the general public as represent the government and do accept opinions when requested by Government Officials or Elected Officials.

    As we know our laws are based on what is prohibited and since there is no law on open carry then it is legal.

    Seems to me they are having fun with you at your expense as I said before they are not in the business of given a citizen legal advice.
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    Regular Member Alpine's Avatar
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    I am in the process of contacting both the McKenna and Inslee campaigns to get firm, specific written statements about their intent to protect or hurt state preemption and Open Carry as governor.

    So far with the McKenna campaign I've tried contacting Hannah, one of his senior policy advisers that I was referred to but she is slow to get back to me. I even followed up a reminder email with a link to the picture in this thread. Hopefully they respond with a firm and specific written statement before ballots go out soon.

    With the Inslee campaign I've been in contact with a guy named "Richard" that I already spoke to over the phone. He told me that Inslee supports "current law" but I am not sure this means he would protect that from alteration. I asked him for a firm, specific commitment in writing to protect current law as it stands now and they told me they'd send it to me to put up here "in a few days." That was about 2 weeks ago.

    I am still hounding these two and won't give up easily on it.

    I also plan on pinging as many state legislators as I can find.

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    Regular Member rapgood's Avatar
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    Quote Originally Posted by Vitaeus View Post
    Casad is unpublished and not useable for precedent. State v. Spencer is the case that provides the explanation of the factors needed to fall afoul of .270

    "in a manner, under circumstances, and at a time and place that either manifests an intent to intimidate another or that warrants alarm for the safety of other persons." you need all the factors and a holstered firearm being visible doesn't hit all of them, without adding additional actions or circumstances. IMO, YMMV.
    Quote Originally Posted by gogodawgs View Post
    We look to State v. Maciolek to find what the court thinks of 'warrant alarm'...
    Yes, State v. Maciolek is controlling with respect to the scope of the "warrants alarm" clause in .270 (Spencer doesn't get as specific about what "does" or "does not" constitute warranting alarm).

    Although Casad is sexy, it simply is not precedent law. If you (or your attorney) attempt to rely on it, you will be violating Washington Court Rules, General Rule 14.1(a) and not only will it be summarily ignored by the court, but the party citing to it may be sanctioned (fined). Please do not rely on it.

    GR 14.1(a) reads: "Washington Court of Appeals. A party may not cite as an authority an unpublished opinion of the Court of Appeals. Unpublished opinions of the Court of Appeals are those opinions not published in the Washington Appellate Reports." If an unpublished case cannot be cited in appellate court, then it cannot be cited in Superior Courts or Courts of Limited Jurisdiction.

    Q: Why are some cases published and others not?
    A: In addition to the "official reasons" referenced above by Lammo, frequently, courts will seek to get a particular resolution for a particular case (usually very fact specific) and don't want that holding to become precedent.
    Q: Why do they do that?
    A: Because.

    But, to confuse matters even more, if a case is in federal court (not Washington state court where virtually all .270 cases are prosecuted), one can cite to unpublished opinions.

    Go read Maciolek.

    Quote Originally Posted by EMNofSeattle View Post
    State v Spencer a court upheld Mr. Spencers conviction on the basis that his carrying a AK style rifle with an attached magazine down the street late at night avoiding eye contact with passing cars "warranted alarm" but they had a golden opportunity to say that carrying a firearm in and of itself warrants alarm.

    To the best of my knowledge, only Spencer, Josh and Kurk Kirby have been prosecuted, and only spencer and Josh were convicted. Certainly Bellingham PD has a reason to silence SVG and ring him up on charges, but they haven't successfully prosecuted him.
    Actually, there are many more reported (published) cases about charges for alleged violations of .270; some where the defendant was convicted and some not.

    Spencer is inapposite to open carry. The Spencer court, while making favorable comments about .270, was about display of long guns. There is no law regarding whether a long gun is or is not displayed when carried. The most significant value of the holding in Spencer is that the term "warrants alarm" implicates the reasonable person standard. As such, although some people may find the mere open display of a gun shocking, a "reasonable person" would not be "alarmed" for the purposes of .270. Presumably because the mere open display of a gun is fully protected by 2Am and Art. I, section 24 of the WA Constitution.

    Quote Originally Posted by sudden valley gunner View Post
    But it can set a precedent and be cited in other districts/courts.
    No, it cannot set a precedent. It is unpublished, and therefore not precedent in any court. However, it may be cited to as persuasive authority in other courts if those other courts rules allow it. But, not in Washington (although GR 14.1(b) allows us to cite to unpublished opinions from other jurisdictions, we can't cite to our own -- go figure).
    Quote Originally Posted by Lovenox View Post
    Forgive my ignorance, but what does it mean for a case to be "published". If it was ruled on isn't that precedence in itself?
    A "published" or "reported" case (both mean the same, but are used in different contexts) is one that the court intends to be precedent and can be cited as controlling law. An "unpublished" case cannot be used as controlling law.
    Last edited by rapgood; 10-04-2012 at 07:55 PM. Reason: expand on reasoning in Spencer
    Rev. Robert Apgood, Esq.

    A right cannot be lost by exercising it. McDonald v. Chicago, 561 U.S. 3025, 130 S. Ct. 3020, 3021, 177 L. Ed. 2d 894 (2010) (citing Near v. Minn., 283 U.S. 697 (1931)).

    Although IAAL, anything I say here is not legal advice. No conversations we may have privately or otherwise in this forum constitute the formation of an attorney-client relationship, and are not intended to do so.

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