cracker barrel on gaskins

TFred said:

Yep. We'll never agree on this... Until a published court case comes along saying otherwise, I will always hold that until the customer refuses a direct command to leave, no law is broken.

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Ahh, but he was given a very direct understanding of their policy that "you cannot be in here with a gun". He went back in with a gun; he is trespassing.

I also still maintain (as does a former prosecutor that I asked) that in this case for example, 18.2-308 (O) is being violated, and that reverts back to the fact that his permit is null and void on private property, i.e. carrying concealed without a permit; a class 1 misdemeanor.

TFred said:

Example: Theaters routinely have signs that say no outside food, and outside food is routinely smuggled in. Are they trespassing? Maybe technically, yes

TFred

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Is that like being a "little bit pregnant"? Is 56mph in a 55mph zone "technically speeding"? Where do we draw the line? You can't be in the movies with popcorn from the outside. If you do, you are violating the conditions of entry, i.e. trespassing, IMHO.

sparkman2 said:

The first reason is obvious. The second reason is I went to the Cracker Barrel in Emporia with the wife and after we got our food and I took my first bite, I was amazed at how awful the food tasted. Did you ever take a drink out of a rubber garden hose on a summer day? That is exactly what the food tasted like. I haven't been to a CB Barrel since. There are plenty of places to eat that don't care about my politics and have no problem standing with me when I exercise my 2A rights. Cracker barrel made their choice as did I.

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my wife worships their chicken and dumplings, there are at least three family members whos chicken and dumplings run circles around cracker barrels. Not too many places where you can get a plate of food with a side and drink for $5 with free biscuits and corn muffins....We eat the kids menu.

ProShooter said:

Ahh, but he was given a very direct understanding of their policy that "you cannot be in here with a gun". He went back in with a gun; he is trespassing.

I also still maintain (as does a former prosecutor that I asked) that in this case for example, 18.2-308 (O) is being violated, and that reverts back to the fact that his permit is null and void on private property, i.e. carrying concealed without a permit; a class 1 misdemeanor.




Is that like being a "little bit pregnant"? Is 56mph in a 55mph zone "technically speeding"? Where do we draw the line? You can't be in the movies with popcorn from the outside. If you do, you are violating the conditions of entry, i.e. trespassing, IMHO.

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he made me raise my shirt to expose the empty slide holster upon reentering the store. you are correct about all of your statements. doesnt change the fact that I will not lay down for anyone and my familys safety comes first, I refuse to be a helpless target. Courts, schools and federal property is where I draw the line...dont go to church so no worries there.....after that, Im armed. Its why I have quite a collection of derringers, north american arms and the old casuls......one is no bigger than your thumb in a change pouch that is regularly practiced cocking and firing in the pouch...robber sees a change purse come out of my pocket, never sees a gun but feels the shock of being shot in the head, neck, face. Id rather be an outlaw than a dead or grieving law obiding mark

ProShooter said:

I also still maintain (as does a former prosecutor that I asked) that in this case for example, 18.2-308 (O) is being violated, and that reverts back to the fact that his permit is null and void on private property, i.e. carrying concealed without a permit; a class 1 misdemeanor.

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Ugh, not that again!

No way, no how... you have an overzealous prosecutor. 18.2-308 (O) is only about private property (ETA: or places where carry is generally prohibited), and nothing about the act of concealed carry. If it's ever used against concealed carry, it's a stretch, and well beyond what the General Assembly ever intended, IMHO. A poorly written part of the law, taken advantage of by unscrupulous prosecutors. I believe (O) was added as a concession, ONLY to clarify that CHPs do not OVERRIDE private property rights. Nothing more.

Yet another nuance that will never be settled without a court of record publishing an opinion.

TFred

ETA: Read the section, it says nothing about the mode of carrying at all.

"O. The granting of a concealed handgun permit shall not thereby authorize the possession of any handgun or other weapon on property or in places where such possession is otherwise prohibited by law or is prohibited by the owner of private property."

thedevilrobyjohn said:

.....doesnt change the fact that I will not lay down for anyone and my familys safety comes first,

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Ok, let's change the scenario.

I'm walking down your street with my child, and my nasty, snarling, vicious attack pitbull. A thunderstorm hits and I run up on your front poor with my child and dog to seek shelter from the storm. You come out and tell me that I can't have that dog there because he is vicious and is scaring your children, who are afraid of dogs. I refuse to leave, because I feel that its unsafe for me and my child to go back out in to the storm. Am I trespassing on your property?

TFred said:

Yet another nuance that will never be settled without a court of record publishing an opinion.

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Agreed

TFred said:

ETA: Read the section, it says nothing about the mode of carrying at all.

"O. The granting of a concealed handgun permit shall not thereby authorize the possession of any handgun or other weapon on property or in places where such possession is otherwise prohibited by law or is prohibited by the owner of private property."

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Agreed, but that is the point. He is in possession of a firearm where such possession was prohibited.

We'll just have to agree to disagree.

ProShooter said:

Ok, let's change the scenario.

I'm walking down your street with my child, and my nasty, snarling, vicious attack pitbull. A thunderstorm hits and I run up on your front poor with my child and dog to seek shelter from the storm. You come out and tell me that I can't have that dog there because he is vicious and is scaring your children, who are afraid of dogs. I refuse to leave, because I feel that its unsafe for me and my child to go back out in to the storm. Am I trespassing on your property?

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I would say no, not until I am asked to leave, and I refuse to do so.

As a counter point to your illustration, it would be every bit as appropriate to respond to "you can't have that dog here" with, "well, sir, the dog IS here, so obviously I CAN". The property owner may not authorize it, and that is where we get into the "what are you asking me to DO" arena.

One of the fundamental things we recommend people say when confronted is, "What is it you are asking me to do?" We don't re-post that every day, but it is one of the things we discuss in response to some anti-gun nut on a rant.

At that point, with a clear answer, one must then act appropriately.

ProShooter said:

Ok, let's change the scenario.

I'm walking down your street with my child, and my nasty, snarling, vicious attack pitbull. A thunderstorm hits and I run up on your front poor with my child and dog to seek shelter from the storm. You come out and tell me that I can't have that dog there because he is vicious and is scaring your children, who are afraid of dogs. I refuse to leave, because I feel that its unsafe for me and my child to go back out in to the storm. Am I trespassing on your property?

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its kind of like sports, religion, politics.....no one knows what might have been, should of been, could of been...just a lot of preparation, hope, talk, etc. many people study the civil war and the battles and strategies, they are sure that different outcomes would have played out and single mistakes that cost the game, the war, etc. im not like that....i dont look back and say damn, i wish i had gotten there 5 minutes earlier....cause just maybe in the 5 minute delay, i missed that drunk wreckless driver on my side of the line or i missed that high powered rifle round flying out of the woodline across the road. i have faced armed men intent on taking my car, my property more than once. i have used my weapon in slef defense...i kniw what i will do with a high percentage based on my past experiences and situations. with all that being said...i would see children in need first...thats me....children are the innocent and must be treated as such...children are sacred to me. i would watch your every move and the dogs every move, i would run scenarios through my head until i had calculated possible situations and their outcomes. i would keep my children out of the way as i always do and my mother would have her sp 101 as she allways does as my backup, i would retrieve more power if i felt i was underarmed. but if i said leave my property, you would be trespassing. if i was at my place of employment and this played out, its also a different scenario. i like open carry but it leads itself to trouble if you have my demeanor and mind set. had i just been concealed...lovely day. it takes a different kind of person to open carry....i think it takes more tolerance for stupid people and stupid questions....ive been on an 11 day vacation and just returned.....i was in 4 states....damn at the ploice run ins, the stupid questions and the people grabbing their children in fear as i myself am holding an infant in one arm and another childs hand with the other...all of the signs and being harrassed. but im a trooper and avoided arrest, carried everywhere both open and concealed simultaneously. there are no absolutes. i have had eight close relatives murdered, three shot. one of my greatest fears is being trained, practiced and ready but my weapon being unaccessible....its a wall we all have to deal with. i also have trouble spelling, hate auto check....gotta lotta hate, huh?

TFred said:

I would say no, not until I am asked to leave, and I refuse to do so.

As a counter point to your illustration, it would be every bit as appropriate to respond to "you can't have that dog here" with, "well, sir, the dog IS here, so obviously I CAN". The property owner may not authorize it, and that is where we get into the "what are you asking me to DO" arena.

One of the fundamental things we recommend people say when confronted is, "What is it you are asking me to do?" We don't re-post that every day, but it is one of the things we discuss in response to some anti-gun nut on a rant.

At that point, with a clear answer, one must then act appropriately.

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TFred, what are you using to support your "They have to ask me to leave" theory. That's not what the code says, I've found no appeals decision to change that and the fact that some Judges or Commonwealths Attorneys choose NOT to follow the existing law, is irreverent.

§ 18.2-119. Trespass after having been forbidden to do so; penalties.
If any person without authority of law goes upon or remains upon the lands, buildings or premises of another, or any portion or area thereof, after having been forbidden to do so, either orally or in writing, by the owner, lessee, custodian, or the agent of any such person, or other person lawfully in charge thereof, or after having been forbidden to do so by a sign or signs posted by or at the direction of such persons or the agent of any such person or by the holder of any easement or other right-of-way authorized by the instrument creating such interest to post such signs on such lands, structures, premises or portion or area thereof at a place or places where it or they may be reasonably seen,

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I think the argument being presented by Tfred and ProShooter can be summed up as:

You are forbidden from being on CB property while in possession of a firearm. If you enter the property with a firearm you are trespassing.
vs
Your firearm is not allowed on CB property. If we see you with it again, you are trespassing.

My stance (which may or not be upheld by law) is that if I am in violation of their policy, that does not make me a trespasser. If I am asked to leave and not come back until I am in compliance with their policy then I am held accountable by law not to come back on their property until I DO comply with their policy. But a company policy does not make me a trespasser alone.

Edit: Forgot to add the part about the sign (not) being posted at the door, which I have not seen at a CB before.

FBrinson said:

I think the argument being presented by Tfred and ProShooter can be summed up as:

You are forbidden from being on CB property while in possession of a firearm. If you enter the property with a firearm you are trespassing.
vs
Your firearm is not allowed on the property. If we see you with it again, you are trespassing.

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I disagree with that assessment. While the first seems accurate, the second statement is not. That implies that having been stopped the individual then walked away. I believe that ProShooter was making the argument that IF having been told that firearms are not allowed on the property and then the individual enters the property while CC, that is trespassing. CB simply not seeing the individual with the firearm (because of the actions of the individual took to hide their firearm) doesn't mitigate the fact that a trespass has occurred. And I believe that is the point that ProShooter is making. My sense is that you'd have a tough time finding a judge to disagree with that as well and I believe that the penalty would probably account for your belief that trying to circumvent the law by what would seem to be a child's game is okay for an adult.

drdan01 said:

I disagree with that assessment. While the first seems accurate, the second statement is not. That implies that having been stopped the individual then walked away. I believe that ProShooter was making the argument that IF having been told that firearms are not allowed on the property and then the individual enters the property while CC, that is trespassing. CB simply not seeing the individual with the firearm (because of the actions of the individual took to hide their firearm) doesn't mitigate the fact that a trespass has occurred. And I believe that is the point that ProShooter is making. My sense is that you'd have a tough time finding a judge to disagree with that as well and I believe that the penalty would probably account for your belief that trying to circumvent the law by what would seem to be a child's game is okay for an adult.

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I think you are most certainly right. I did a poor job of typing what I was really trying to get at in my post. From time to time my head has problems holding two different, and sometimes conflicting thoughts. My intent was to include the reference to a sign being required at the entrance or having been informed of the policy orally by an agent of the business/property before the trespassing law can be enforced. But after rereading the thread and the code I can see that I made an incorrect statement.

FBrinson said:

I think you are most certainly right. I did a poor job of typing what I was really trying to get at in my post. From time to time my head has problems holding two different, and sometimes conflicting thoughts. My intent was to include the reference to a sign being required at the entrance or having been informed of the policy orally by an agent of the business/property before the trespassing law can be enforced. But after rereading the thread and the code I can see that I made an incorrect statement.

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This is a difficult issue FB. Can/should a business discriminate between constitutional rights? Can a business say no Blacks or no Hispanics. No but they can say NO GUNS under the current law.

There should be a distinction between private property and private property that solicits the public. There isn't though.

Currently if a business says no guns, either on a sign posted where people are likely to see it (Even if they don't) or verbally and you bring one in anyway....you've committed a crime.

And I agree that many Venues don't enforce it. That doesn't mean they can't.

This whole thing with CB or anyone similar though to me presents some perfect opportunities. For example, apply the same "flashmob" concept to OC'ers in an area by picking a CB-like establishment and try to get as many OC'ers to arrive there at the same time. Then while standing there waiting to be seated the first OC'er noticed is told that they cannot carry, and that person in a loud voice says that if they cannot exercise their 2A there that they will leave....followed by about 50 more folks all telling the manager the same thing. Perhaps even better if a majority of them had actually made it to their tables and all get up and loudly walk out. Even better still if a media friend was tipped about a potential OC protest at wherever and they were standing there to interview some of the many walkouts. Money and bad publicity talk, and perhaps faced with both in large numbers they'd have that requisite come to the "fun side of the island" moment. Just a thought.

drdan01 said:

This whole thing with CB or anyone similar though to me presents some perfect opportunities. For example, apply the same "flashmob" concept to OC'ers in an area by picking a CB-like establishment and try to get as many OC'ers to arrive there at the same time. Then while standing there waiting to be seated the first OC'er noticed is told that they cannot carry, and that person in a loud voice says that if they cannot exercise their 2A there that they will leave....followed by about 50 more folks all telling the manager the same thing. Perhaps even better if a majority of them had actually made it to their tables and all get up and loudly walk out. Even better still if a media friend was tipped about a potential OC protest at wherever and they were standing there to interview some of the many walkouts. Money and bad publicity talk, and perhaps faced with both in large numbers they'd have that requisite come to the "fun side of the island" moment. Just a thought.

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That's not a bad idea Dan...except that would also be illegal.

§ 18.2-120. Instigating, etc., such trespass by others; preventing service to persons not forbidden to trespass.
If any person shall solicit, urge, encourage, exhort, instigate or procure another or others to go upon or remain upon the lands, buildings, or premises of another, or any part, portion or area thereof, knowing such other person or persons to have been forbidden, either orally or in writing, to do so by the owner, lessee, custodian or other person lawfully in charge thereof, or knowing such other person or persons to have been forbidden to do so by a sign or signs posted on such lands, buildings, premises or part, portion or area thereof at a place or places where it or they may reasonably be seen; or if any person shall, on such lands, buildings, premises or part, portion or area thereof prevent or seek to prevent the owner, lessee, custodian, person in charge or any of his employees from rendering service to any person or persons not so forbidden, he shall be guilty of a Class 1 misdemeanor.
(Code 1950, § 18.1-173.1; 1960, c. 358; 1975, cc. 14, 15.)

I guess I am basing my point of view here on some long-ago discussions about "proof of notice" and whether or not a sign was sufficient for that.

And also the fact that someone telling me what their policy is, does not equal that person telling me to leave their property. If the sign says "Shoes and shirt required," does that make a shirtless person a trespasser, subject to immediate arrest, or someone who must leave (or comply with policy) when asked to do so?

I can't imagine anyone would propose we arrest shirtless people on sight, without being asked to leave first, even if there is a sign. So why should we treat a gun carrier any differently?

Now perhaps someone telling me face-to-face what their policy is might be sufficient proof of notice, which is why I would go back to "What are you asking me to do?", which gives them the opportunity to indeed, ask the person to leave.

There will never be a consensus, even if we all agreed to one, we would certainly be wrong in some situations. The law is just not that clearly written.

TFred

drdan01 said:

I disagree with that assessment. While the first seems accurate, the second statement is not. That implies that having been stopped the individual then walked away. I believe that ProShooter was making the argument that IF having been told that firearms are not allowed on the property and then the individual enters the property while CC, that is trespassing. CB simply not seeing the individual with the firearm (because of the actions of the individual took to hide their firearm) doesn't mitigate the fact that a trespass has occurred. And I believe that is the point that ProShooter is making. My sense is that you'd have a tough time finding a judge to disagree with that as well and I believe that the penalty would probably account for your belief that trying to circumvent the law by what would seem to be a child's game is okay for an adult.

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That's it exactly, drdan. Once someone knows that they are not allowed in the store with a gun, and they enter with the gun, a trespass has occurred. TFred says that a store policy doesn't make it a criminal act, but it is the store policy that in fact makes the entry with the gun a criminal act because its a special condition being placed on the patron in order to allow them entry, no guns or you must wear a shirt or you must wear shoes, etc.

peter nap said:

That's not a bad idea Dan...except that would also be illegal.

§ 18.2-120. Instigating, etc., such trespass by others; preventing service to persons not forbidden to trespass.
If any person shall solicit, urge, encourage, exhort, instigate or procure another or others to go upon or remain upon the lands, buildings, or premises of another, or any part, portion or area thereof, knowing such other person or persons to have been forbidden, either orally or in writing, to do so by the owner, lessee, custodian or other person lawfully in charge thereof, or knowing such other person or persons to have been forbidden to do so by a sign or signs posted on such lands, buildings, premises or part, portion or area thereof at a place or places where it or they may reasonably be seen; or if any person shall, on such lands, buildings, premises or part, portion or area thereof prevent or seek to prevent the owner, lessee, custodian, person in charge or any of his employees from rendering service to any person or persons not so forbidden, he shall be guilty of a Class 1 misdemeanor.
(Code 1950, § 18.1-173.1; 1960, c. 358; 1975, cc. 14, 15.)

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Darn...yup, didn't think of that side of it. Never mind.... :uhoh:

ProShooter said:

That's it exactly, drdan. Once someone knows that they are not allowed in the store with a gun, and they enter with the gun, a trespass has occurred. TFred says that a store policy doesn't make it a criminal act, but it is the store policy that in fact makes the entry with the gun a criminal act because its a special condition being placed on the patron in order to allow them entry, no guns or you must wear a shirt or you must wear shoes, etc.

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So you would arrest a shirtless or shoeless person on sight in a store with such a sign, but without having been asked to leave?

Just seems unreasonable, with shirts, shoes OR guns...

TFred

TFred said:

So you would arrest a shirtless or shoeless person on sight in a store with such a sign, but without having been asked to leave?

Just seems unreasonable, with shirts, shoes OR guns...

TFred

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But again, wasn't the point that he made that if having been asked to leave reentry as CC was the trespass? Or perhaps I'm not understanding which point you're discussing?