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Thread: ...carried upon a person in a manner not discernible under ordinary observation.

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    ...carried upon a person in a manner not discernible under ordinary observation.

    Most of us know the phrase above. It is part of the legal definition of a concealed firearm under NRS 202.3653, and it is the method of which we grade the unregulated act of open carry in Nevada. Having a discussion on another forum about car carry and if a seat belt or center console in the way causes you to become concealed or not (we all know it's not), I had a thought. I know some guys here are very well versed in "legal-ese", so I'd like to bounce an idea off of everybody. (Long post alert, I'll do my best).

    I've always addressed the above statement in the following way: "If I can look at you and tell you're carrying a firearm, then it's not concealed." To me, that's a cut and dry issue. In that regard, the general consensus would be if a jacket or shirt accidentally covers it, it becomes concealed and is a crime. Suddenly today I'm not so sure and I want to challenge that idea a bit. If you check the definition of "observe", it seems to automatically more and just a look. To observe something means to become aware of it, to perceive it, to notice it. "Ordinary" means obviously not using any special means, which is how I always used the idea of just looking at someone to define concealed or open. I'm not searching, metal detecting, etc, I'm simply observing you.

    So when it comes to the momentary, "accidental" concealment, now I'm up in the air. I'm talking true, accidental concealment here, the wind blowing your jacket over the gun for example. You aren't "intentionally" ...carrying upon a person in a manner not discernible... It was accidental and it happened for just a few seconds, and if the cop were to continue to observe you, he would see the gun. Ergo, not concealed because he could see it. The law does not define concealed as "...carried upon a person in a manner not discernible for a brief moment or a quick glance." We'd be really screwed if it did, since my pistol isn't discernible to you if I'm facing away from you in a crowd, right?

    I'm starting to believe that phrase is more powerful than I had originally thought. Ordinary observation seems to imply that an officer would have to be watching you for a period of time, truly observing you, and honestly not notice the firearm. Seems to blow away the idea of accidental felonies if you truly aren't trying to carry in a deviant way...

    Thoughts? I'm I making sense to anyone here? This thought tied into another whole discussion about a certain scenario, but I thought warranted further conversation.
    Last edited by jfrey123; 05-31-2013 at 06:19 PM.

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    Example:


    LE: "Excuse me sir, do you have a cwp?"

    Citizen: "What, officer? No, I do not, but since I am not concealing, I do not need one, do I?"

    LE: "I am placing you under arrest for illegally concealing a firearm."

    Citizen: "What?"

    LE: "I observed you for a short time, saw your firearm, and your jacket moved and concealed it."

    Citizen: "So, you observed my firearm?"

    LE: ......
    Last edited by wrightme; 05-31-2013 at 07:09 PM.
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    Good question. As always, the interpretation and perception by the LEO, District Attorney is the sticky part. We can break the written law down to it's basics and it's still what you or your attorney can prove in court.

    I have CCW so I never sweat it, unless, of course, I'm at the DMV.
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    Campaign Veteran MAC702's Avatar
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    Makes sense to me.

    I don't know of any cases in NV where someone was arrested for concealment while claiming it was an accident. It would be interesting to see details of such a case.
    Last edited by MAC702; 05-31-2013 at 09:18 PM.
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    Appreciate the discussion. Obviously not intended as legal advice or knowledge, but I'm curious how people feel when I pose the question that way.

    To wrightme, that's exactly the sort of scenario I'm starting to envision and your description has me wondering even more... So when the cop already knows your armed via "ordinary observation", but it accidentally gets covered for a moment, is it truly concealed? Is it a crime? If so, should it be? (again, not legal advice but pure speculation)
    Last edited by jfrey123; 05-31-2013 at 10:55 PM.

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    I've only seen the reaction, on video, when a firearm is briefly visible, in a concealed carry only state like Florida. They took him down like the guy was public enemy number one. Totally different scenario? Or is it? The guy had a legal right to carry concealed. It was concealed, until it wasn't.
    Hoka hey

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    Campaign Veteran MAC702's Avatar
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    Legislative intent is a lost art, I think.

    Because this is what they were going for:

    Bad guy getting caught.
    Bad guy getting frisked.
    Gun discovered.
    Bad guy going to prison for extra charge.
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    A former cop I used to know told me a story of a guy who was actively concealing his firearm illegally here in NV, and saw briefly when his jacket opened that he had a weapon. The case was thrown out due to his firearm being observable at that time, thus not being concealed.

    No case numbers or names, just a story. No legal advise here, just a story.

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    Quote Originally Posted by MAC702 View Post
    Legislative intent is a lost art, I think.

    Because this is what they were going for:

    Bad guy getting caught.
    Bad guy getting frisked.
    Gun discovered.
    Bad guy going to prison for extra charge.
    I would tend to agree that what you have presented was the intent. It seems the penning of the statute missed by a wide margin.
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    Has anyone ever been convicted of CCW in this state and in a case where there was no other reason for their arrest?

    Someone who wasn't a "person of interest" for any other reason, but the only charge they could make was CCW.

    If anyone knows of one, I would like to dig up the case file and read the transcript, especially looking for the testimony regarding how the gun was detected in the first place, if it was "not discernible under ordinary observation."

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    ...carried upon a person in a manner not discernible under ordinary observation.

    I generally use the rule of thumb that if three sides are visible you are good to go.

    I wouldn't be too concerned about accidentally CC in your vehicle as your vehicle is an object, so to put it in perspective if you are walking down the isle of a store and you pass a display making your firearm no longer visible are you CC? No.

    Furthermore if you do ever encounter harassment stemming from accidental CC its an argument best saved for the judge not the officer.

    Good question btw.
    Last edited by GoDavyGo; 06-01-2013 at 12:31 PM.

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    ...carried upon a person in a manner not discernible under ordinary observation.

    I agree that court is where this would be decided, not on the street with a cop. Cops aren't big on negotiating the fine details of written law.

    Nothing stops them or deters them from making a stop and pressing charges in the moment - it's whether those charges would hold up later...and your logic and interpretation may work given the right judge...then again maybe it wouldn't.

    To me I have a harder time seeing how the encounter would be legal in the first place unless they could articulate what crime they suspected you have been committing or about to commit and why they suspected you of that. Given that it is perfectly legal to carry a firearm in Nevada and it is a "shall issue state", why should they draw the conclusion that you probably don't have a permit to conceal?

    Makes it hard to justify it as a legal detainment unless they suspect you of another separate crime, IMO.

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    To the comment about FL, I believe FL is one of the states that requires a permittee to remain 100% concealed and accidental exposure is a crime. Not a requirement in Nevada, so that could partly be the the cause for a difference.

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    Good comments. Having a CCW permit, I never worried about it. However, with a jacket or other part time cover I can see the the non CCW person possible issue for an encounter.
    Off subject, several years ago before OC I was getting gas late tired leaning against my truck my firearm was printing really bad through my shirt. A guy getting gas next to me gawk alerted me to the printing issue.
    I smiled and said hi. No response just more glare next thing I noticed he made it very clear he was taking down my licenses number.
    I would like to have heard the call to dispatch. O my god I saw a guy with a gun under his shirt. What was he doing? Getting gas and he said hi.

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    Quote Originally Posted by 28kfps View Post
    Good comments. Having a CCW permit, I never worried about it. However, with a jacket or other part time cover I can see the the non CCW person possible issue for an encounter.
    Off subject, several years ago before OC I was getting gas late tired leaning against my truck my firearm was printing really bad through my shirt. A guy getting gas next to me gawk alerted me to the printing issue.
    I smiled and said hi. No response just more glare next thing I noticed he made it very clear he was taking down my licenses number.
    I would like to have heard the call to dispatch. O my god I saw a guy with a gun under his shirt. What was he doing? Getting gas and he said hi.
    Sounds to me that it was discernible under ordinary observation then...TBG
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    Quote Originally Posted by The Big Guy View Post
    Sounds to me that it was discernible under ordinary observation then...TBG
    That's where I was going when I asked about CCW-only cases.

    If the person has been stopped for something else and the previously-undetected gun was discovered during a frisk, that's one thing. However, if a cop DID detect the gun, and that was the reason for the stop, that pretty much should kill the "not discernible" standard.

    I'd like to see how such a case was argued, on both sides.

    I once sat a case where the sole cause was violation of the Basic Speed Law (the one which says never drive faster than safe under current conditions). The trooper had been stopped at the side of the road in a heavy fog when the defendant had driven past at an "unsafe speed." The trooped chased him down and cited him.

    In court, the defendant (pro per) had the trooper draw his diagrams, asking for details on distances and timing, then simply asked "If it wasn't safe for me to drive 35 because of the visibility, how was it safe for you to drive 50 to catch up to me?"

    This is one of those times when you can tell that the County Attorney doesn't much like that trooper -- or he would have either nol prossed or called for dismissal while the trooper was eagerly helping set himself up.
    Last edited by DVC; 06-02-2013 at 12:47 PM.

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    ...carried upon a person in a manner not discernible under ordinary observation.

    My guess is their argument would be that officers are trained to spot concealed weapons and so it wasn't what would be considered ordinary observation.

    The same as it would be argued that they are trained for driving in extraordinary circumstances, so it serves that an officer driving at 50 mph would be safer than an 'average citizen' driving at 35 mph.

    Not saying its right, but I think that would be the argument they went with...and they may by well get away with it.


    That doesn't get them past the RAS though...carrying a concealed weapon is not illegal...carrying it without a permit is.

    Unless you are being detained for some other cause, how can they justify an assumption that you are carrying concealed without a permit?
    Last edited by jdholmes; 06-02-2013 at 04:12 PM.

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    Quote Originally Posted by jdholmes View Post
    My guess is their argument would be that officers are trained to spot concealed weapons and so it wasn't what would be considered ordinary observation.

    The same as it would be argued that they are trained for driving in extraordinary circumstances, so it serves that an officer driving at 50 mph would be safer than an 'average citizen' driving at 35 mph.

    Not saying its right, but I think that would be the argument they went with...and they may by well get away with it.
    I know I am responding off topic, but just for fun.... As I understand the statute it speaks only of the conditions, not the ability of the driver. however if the prosecution brought up training as an exemption to the standard set forth in the statute , the next question to the cop would be "what actual knowledge prior to the stop did you posses, alerting you to facts suggesting I was not similarly, or more extensively trained than the officer?"

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    Campaign Veteran MAC702's Avatar
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    Quote Originally Posted by jdholmes View Post
    ...an [22-year-old rookie] officer driving at 50 mph would be safer than an 'average [50-year-old, experienced] citizen' driving at 35 mph...
    FIFY

    Mod: The changes made by me are emphasized.
    Last edited by MAC702; 06-02-2013 at 02:56 PM.
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    Unless the trooper is allergic to Kryptonite, I'm forced to assume that his ability to see through fog is pretty much the same as anyone else's.

    Since his sole cause was that the visibility didn't allow safe operation at 35 MPH, to have exceeded that speed to stop the other driver poisoned the whole case. Either conditions were not unsafe (thus the citation cannot stand) or they were unsafe and the trooper created a condition which was more dangerous than the one he wrote the citation for.

    Nothing in any state's vehicle code exempts ANY driver from the Basic Speed Law. In most states, the exemption for exceeding the posted limit includes the specific requirement that the cop be doing so "with due regard for safety."

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