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Even the AG office has it wrong...

slapmonkay

Campaign Veteran
Joined
May 6, 2011
Messages
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Location
Montana
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 said:
...

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.
 

acmariner99

Regular Member
Joined
Feb 12, 2010
Messages
655
Location
Renton, Wa
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.
 

rapgood

Regular Member
Joined
Jan 9, 2012
Messages
598
Location
Stanwood, WA
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?
 

slapmonkay

Campaign Veteran
Joined
May 6, 2011
Messages
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Location
Montana
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...
 

Vitaeus

Regular Member
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May 30, 2010
Messages
596
Location
Bremerton, Washington
Casad is unpublished and not useable for precedent.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."
 

EMNofSeattle

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S. Kitsap, Washington state
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
[video=youtube;Hn_BjXzLY1k]http://www.youtube.com/watch?v=Hn_BjXzLY1k[/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
 

gogodawgs

Campaign Veteran
Joined
Oct 25, 2009
Messages
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Location
Federal Way, Washington, USA
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" 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.
 
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acmariner99

Regular Member
Joined
Feb 12, 2010
Messages
655
Location
Renton, Wa
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.
 

Vitaeus

Regular Member
Joined
May 30, 2010
Messages
596
Location
Bremerton, Washington
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.
 

sudden valley gunner

Regular Member
Joined
Dec 13, 2008
Messages
16,674
Location
Whatcom County
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.
 

Schlepnier

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May 12, 2011
Messages
420
Location
Yelm, Washington USA
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."
 

Difdi

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Joined
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Messages
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Location
Seattle, Washington, USA
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...
 

EMNofSeattle

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S. Kitsap, Washington state
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
 

sudden valley gunner

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Whatcom County
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.
 

hermannr

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Mar 24, 2011
Messages
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Location
Okanogan Highland
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.
 
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papa bear

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Jul 25, 2010
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Location
mayberry, nc
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
 

Lovenox

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Aug 3, 2010
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Location
Olympia
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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