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Thread: Rcw 9.41.270

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    Rcw 9.41.270

    How does the recent shooting(s) at the School in CT affect open carry with respect to RCW 9.41.270?

    In this thread, http://forum.opencarry.org/forums/sh...ve-me-a-ticket, the OP was ticketed and charge due to the fact that alarm or potential alarm was created because a crime was commited in the area he was at the day prior.

    Given the sensitivity surrounding the Newtown CT school shooting, I suspect a much greater amount of alarm would ensue and result in MWAG calls if open carriers were spotted on or around school properties.

    Would RCW 9.41.270 make open carriers subject to citation/arrest?

    How long a period of time needs to lapse before one would not be in violation of this statute?

    -Z

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    Regular Member amlevin's Avatar
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    I wouldn't just stand around near a school while open carrying. Other than that why would anything change?
    "If I shoot all the ammo I am carrying I either won't need anymore or more won't help"

    "If you refuse to stand up for others now, who will stand up for you when your time comes?"

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    Regular Member Freedom1Man's Avatar
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    The intent of the law is the force of the law.

    To find the intent of the law you must find out when it was passed in Session law and then look at what was happening at what was happening at that time.

    As it turns out, according to Slapmonkay, was that the Black Panthers were going around trying to intimidate people with the fact they were armed. Yet another gun law passed about race.

    The Sullivan Act was passed for a similar reason.
    Provision for free medical attendance and nursing, for clothing, for food, for housing, for the education of children, and a hundred other matters, might with equal propriety be proposed as tending to relieve the employee of mental strain and worry. --- These matters obviously lie outside the orbit of congressional power. (Railroad Retirement Board v Alton Railroad)

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    Quote Originally Posted by amlevin View Post
    I wouldn't just stand around near a school while open carrying. Other than that why would anything change?
    Because under this statute the mere act of being in the vicinity with a firearm displayed where one could reasonably believe the presenece of a firearm may cause alarm would be cause for citation/arrest. In this instance as seen in the thread I linked to from this forum one can be found in violation even if their firearm is properly/securely holstered. So picking up your child or just walking through the vicinity of a school zone could be enough given the current emotional climate and possible paranoia from the CT shooting.

    -Z

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    Regular Member sudden valley gunner's Avatar
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    I have OC'd everywhere as I normally do. Mostly positive looks and encounters. Most people with half a brain realize they are safer when guns are around.
    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 Vitaeus's Avatar
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    A properly holstered firearm is not carried, in a manner, that would meet the criteria in .270, IMO. A legal act does not become illegal due to the act of a madman 3000 miles away. There was an officer involved shooting at a local Wal Mart a few years ago, I open carried to the same place the next day, nothing was said and few folks even noticed. The same will apply if I have to pick up my eldest from her school, within the requirements of the RCW's which get complicated and I don't feel like sharing the what where and how of my visits to her school on a public forum. Your mileage may vary, the cited conviction for .270 has more to the story, but I have not read a transcript of the case so I don't know the details of what the jury of 6 heard to make their decision. I expect it was also an issue of poor legal representation, but again I don't know it for a fact.

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    Regular Member amlevin's Avatar
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    Quote Originally Posted by Vitaeus View Post
    Your mileage may vary, the cited conviction for .270 has more to the story, but I have not read a transcript of the case so I don't know the details of what the jury of 6 heard to make their decision. I expect it was also an issue of poor legal representation, but again I don't know it for a fact.
    The jury of 6 included gun owners. It's just possible that they, who heard all the evidence, thought the persons actions did warrant alarm.

    The difference between "us" and "the jury" is that the jury heard the evidence. We've only heard one side. Even the attorney who received a copy of the transcript has apparently lost interest.
    "If I shoot all the ammo I am carrying I either won't need anymore or more won't help"

    "If you refuse to stand up for others now, who will stand up for you when your time comes?"

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    Regular Member sudden valley gunner's Avatar
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    Quote Originally Posted by amlevin View Post
    The jury of 6 included gun owners. It's just possible that they, who heard all the evidence, thought the persons actions did warrant alarm.

    The difference between "us" and "the jury" is that the jury heard the evidence. We've only heard one side. Even the attorney who received a copy of the transcript has apparently lost interest.

    Gun owners don't necessarily mean liberty lovers or they are on our side. I could easily see 6 CC guys not liking an OC'er, I run into some CC guys who think OC'ers are going to ruin it for them.

    The attorney has moved, and has expressed deep disappointment in the ruling.

    Remember the prosecutor forced a jury upon Josh, I think he knew legally he didn't have a case.
    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 amlevin's Avatar
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    Quote Originally Posted by sudden valley gunner View Post
    The attorney has moved, and has expressed deep disappointment in the ruling.
    And he's the only "pro gun rights" attorney in practice that could take the appeal? That is if there truly are grounds for one?
    "If I shoot all the ammo I am carrying I either won't need anymore or more won't help"

    "If you refuse to stand up for others now, who will stand up for you when your time comes?"

  10. #10
    Regular Member sudden valley gunner's Avatar
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    Quote Originally Posted by amlevin View Post
    And he's the only "pro gun rights" attorney in practice that could take the appeal? That is if there truly are grounds for one?
    So that proves me wrong how?
    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 rapgood's Avatar
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    Quote Originally Posted by Zohan View Post
    Because under this statute the mere act of being in the vicinity with a firearm displayed where one could reasonably believe the presenece of a firearm may cause alarm would be cause for citation/arrest. In this instance as seen in the thread I linked to from this forum one can be found in violation even if their firearm is properly/securely holstered. So picking up your child or just walking through the vicinity of a school zone could be enough given the current emotional climate and possible paranoia from the CT shooting.
    Quote Originally Posted by Vitaeus View Post
    A properly holstered firearm is not carried, in a manner, that would meet the criteria in .270, IMO. A legal act does not become illegal due to the act of a madman 3000 miles away. There was an officer involved shooting at a local Wal Mart a few years ago, I open carried to the same place the next day, nothing was said and few folks even noticed. The same will apply if I have to pick up my eldest from her school, within the requirements of the RCW's which get complicated and I don't feel like sharing the what where and how of my visits to her school on a public forum. Your mileage may vary, the cited conviction for .270 has more to the story, but I have not read a transcript of the case so I don't know the details of what the jury of 6 heard to make their decision. I expect it was also an issue of poor legal representation, but again I don't know it for a fact.
    RCW 9.41.270 must be narrowly construed such that the phrase “warrants alarm for the safety others” applies only to conduct that poses a threat to others, thus giving the phrase a narrow and definite focus. State v. Maciolek, 101 Wn.2d 259, 268 (1984)(“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.”)

    Quote Originally Posted by amlevin View Post
    The jury of 6 included gun owners. It's just possible that they, who heard all the evidence, thought the persons actions did warrant alarm.
    The difference between "us" and "the jury" is that the jury heard the evidence. We've only heard one side. Even the attorney who received a copy of the transcript has apparently lost interest.
    It's also possible that the jury instructions did not properly educate the jurors about the unlawful display law and the exceptions to the law (I've seen it happen in a .270 conviction -- which was later overturned on appeal). I have also seen the situation where the judge "guided" the trial so as to convict the carrier. The way a judge rules on objections can "guide" a case to a conviction or non-conviction (hence the source of the phrase, "I was railroaded into jail by the judge.").

    And, yes, sometimes the defense attorney doesn't understand the law, the relevant case law, and their significance. That is simply ineffective assistance of counsel (IAC is a basis for appeal in its own right). No conviction for unlawful display where the weapon is holstered and not being handled or otherwise having attention drawn to it by the carrier should stand. In these situations, the unlawful display conviction should be challenged on constitutional bases.
    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.

  12. #12
    Regular Member sudden valley gunner's Avatar
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    Quote Originally Posted by rapgood View Post
    In these situations, the unlawful display conviction should be challenged on constitutional bases.
    Agreed with your whole post, some just don't want jurors to be fully informed.

    I also will donate and solicit your service to appeal this decision if you were so inclined. Although there would have to be other donors since I am fairly poor.......
    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 FMCDH's Avatar
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    Quote Originally Posted by amlevin View Post
    The jury of 6 included gun owners. It's just possible that they, who heard all the evidence, thought the persons actions did warrant alarm.

    The difference between "us" and "the jury" is that the jury heard the evidence. We've only heard one side. Even the attorney who received a copy of the transcript has apparently lost interest.
    Don't start with that old argument again. Most of your average "gun owners" have no clue of their own "rights", so how could I expect them to have any clue of mine when it comes to carry, especially since most don't carry.

    If you want to talk about alarm, the original judge that heard the case was so alarmed that he threw the case out. People seem to want to gloss over that fact when they want to use this case as some sort of example.

  14. #14
    Regular Member sudden valley gunner's Avatar
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    Quote Originally Posted by FMCDH View Post
    Don't start with that old argument again. Most of your average "gun owners" have no clue of their own "rights", so how could I expect them to have any clue of mine when it comes to carry, especially since most don't carry.

    If you want to talk about alarm, the original judge that heard the case was so alarmed that he threw the case out. People seem to want to gloss over that fact when they want to use this case as some sort of example.
    Very good point I forgot about that.

    So what are the motives of the prosecutor of continue prosecution? Me thinks he wants to set a precedent against OC. and like a rabid dog went after it. Refusing to allow Josh to have a hearing based on legalities only without a jury, I wonder too how he knew he could convince a jury of the illegality of something legal? Maybe by practice?
    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 rapgood's Avatar
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    Quote Originally Posted by sudden valley gunner View Post
    Agreed with your whole post, some just don't want jurors to be fully informed.

    I also will donate and solicit your service to appeal this decision if you were so inclined. Although there would have to be other donors since I am fairly poor.......
    I am willing to consider the case for appeal... if an appeal is still available. There are time limits on filing notices of appeal (usuall 10 days, unless it's the state appealing, in which case they have 30 days). As I recall (assuming that you are talking about Josh's case), the appellate court upheld the conviction. The recourse then is to ask the Washington State Supreme Court to hear the case (unless it's too late for that). In any event, the defendant would need to contact me directly. I am always interested in considering .270 convictions.
    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.

  16. #16
    Regular Member sudden valley gunner's Avatar
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    Quote Originally Posted by rapgood View Post
    I am willing to consider the case for appeal... if an appeal is still available. There are time limits on filing notices of appeal (usuall 10 days, unless it's the state appealing, in which case they have 30 days). As I recall (assuming that you are talking about Josh's case), the appellate court upheld the conviction. The recourse then is to ask the Washington State Supreme Court to hear the case (unless it's too late for that). In any event, the defendant would need to contact me directly. I am always interested in considering .270 convictions.
    Been a long time since there were court dates....darn...I don't think Josh has been around for awhile.
    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)

  17. #17
    Opt-Out Members BigDave's Avatar
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    Quote Originally Posted by rapgood View Post
    I am willing to consider the case for appeal... if an appeal is still available. There are time limits on filing notices of appeal (usuall 10 days, unless it's the state appealing, in which case they have 30 days). As I recall (assuming that you are talking about Josh's case), the appellate court upheld the conviction. The recourse then is to ask the Washington State Supreme Court to hear the case (unless it's too late for that). In any event, the defendant would need to contact me directly. I am always interested in considering .270 convictions.
    Quote Originally Posted by sudden valley gunner View Post
    Been a long time since there were court dates....darn...I don't think Josh has been around for awhile.
    The last one was in mid September 2012 and the last time I heard from a news reporter on this the Judge had not written the ruling yet, but have not heard nothing for a couple of months.

    Latest information I could find.

    Case Number: 435551
    Filing Date: 06-12-2012
    Coa, Division Ii

    Event Date Event Description Action
    06-12-12 Affidavit of Service Filed
    06-12-12 Filing fee Filed
    06-12-12 Notice of Discretionary Review Filed
    06-15-12 Case Received and Pending Status Changed
    06-19-12 Motion to Dismiss (untimely Filg Appeal) Filed
    06-19-12 Letter Sent by Court
    06-27-12 Motion to Extend Time to File Filed
    07-06-12 Ruling on Motions Filed
    07-09-12 Perfection Letter Sent by Court
    07-23-12 D/r Supr Decision on Rvw Frm Crt Lim Jrd Filed
    08-06-12 Response to Motion for Discretionary Review Filed
    08-13-12 Reply to Response Filed
    08-14-12 Motion for Amended brief Filed
    08-15-12 Notice of Change of Address Filed
    08-15-12 Ruling on Motions Filed
    08-20-12 Other filing Filed
    09-10-12 Ruling terminating Review Filed
    09-10-12 Decision Filed Status Changed
    10-17-12 Certificate of Finality Filed
    10-17-12 Disposed Status Changed
    Last edited by BigDave; 12-28-2012 at 11:48 PM.
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