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Thread: New Utah Bill to Stop Harassment of Law Abiding Citizens Who Open Carry

  1. #1
    Campaign Veteran since9's Avatar
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    New Utah Bill to Stop Harassment of Law Abiding Citizens Who Open Carry

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    Excerpt 1: "Sponsored by state Representative Curt Oda (R-14), HB 276 would provide that the mere carrying or possession of a holstered or encased firearm does not constitute a violation of the Disorderly Conduct statute."

    Excerpt 2: "HB 276 does not, in any way, change the laws governing the carrying of firearms, nor does it make any changes to what behavior by law-abiding gun owners is legal or illegal."

    What do you think? Good, bad, ugly, or indifferent...
    The First protects the Second, and the Second protects the First. Together, they protect the rest of our Bill of Rights and our United States Constitution, and help We the People protect ourselves in the spirit of our Declaration of Independence.

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    I would like it much better without the words "holstered or encased".

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    Regular Member Fallschirmjäger's Avatar
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    I can see their concern, while there is nothing alarming about a holstered firearm, I myself would be on alert should I see someone wandering around the town with a pistol being held at hand. Either that person is reacting to a perceived threat (which law enforcement should be reacting to as well) or that person is presenting something that could be an immediate danger (again, something for LE to react to.)

    But, ... I have to agree, removing "holstered or encased" is a good idea. If someone is pointing or has a firearm readily to hand then it's quite likely that probable cause exists for an aggravated assault charge.



    Georgia has a statute - 'A person is guilty of a misdemeanor when he intentionally and without legal justification points or aims a gun or pistol at another, whether the gun or pistol is loaded or unloaded' which will be deleted if an upcoming bill is passed. It has been said that there is more than enough probable cause for aggravated assault based upon that conduct without having a separate code regarding it. Plus, it removes 'without legal justification' from having to be debated in court.
    Last edited by Fallschirmjäger; 03-08-2014 at 11:32 PM.

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    Regular Member Rusty Young Man's Avatar
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    Quote Originally Posted by rpyne View Post
    I would like it much better without the words "holstered or encased".
    Agree. The people who choose to open carry their properly-slung long guns are left out in the cold by this bill, so to speak. However, this bill is a step in the right (pun) direction, seeing as some people don't understand what the "shall not be infringed" portion of the U.S. Constitution means (and I would imagine the Utah state constitution includes something to that effect).
    After OC is normalized, LGOC is next.

    Today OC, tomorrow our Rights.
    I carry to defend my loved ones; Desensitizing and educating are secondary & tertiary reasons. Anything else is unintended.

    “Life, liberty, and property do not exist because men have made laws. On the contrary, it was the fact that life, liberty, and property existed beforehand that caused men to make laws in the first place.” - Frederic Bastiat

    "When bad men combine, the good must associate; else they will fall one by one, an unpitied sacrifice in a contemptible struggle." - Edmund Burke

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    The issue is that with the objectionable wording this bill does nothing to protect gun owners in the exact situation that was the catalyst to get this legislation moving.

    http://www.freerepublic.com/focus/f-news/2849232/posts

    http://www.thetruthaboutguns.com/201...n-his-car-omg/

    http://utahcountynorth.fox13now.com/...r-cited-police

  6. #6
    Regular Member Rusty Young Man's Avatar
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    Quote Originally Posted by rpyne View Post
    The issue is that with the objectionable wording this bill does nothing to protect gun owners in the exact situation that was the catalyst to get this legislation moving.

    http://www.freerepublic.com/focus/f-news/2849232/posts

    http://www.thetruthaboutguns.com/201...n-his-car-omg/

    http://utahcountynorth.fox13now.com/...r-cited-police
    I hadn't heard of that. My bad.

    If the lady REALLY had any reason to be afraid, why did she circle him "at least five times" in her car instead of heading out of the area? And then claiming that he was following her (on foot while she had a car; why does that not sound very plausible?)? She should share some of the costs here, seeing as she seems to have lied to get this peaceably-waiting man in trouble.
    I carry to defend my loved ones; Desensitizing and educating are secondary & tertiary reasons. Anything else is unintended.

    “Life, liberty, and property do not exist because men have made laws. On the contrary, it was the fact that life, liberty, and property existed beforehand that caused men to make laws in the first place.” - Frederic Bastiat

    "When bad men combine, the good must associate; else they will fall one by one, an unpitied sacrifice in a contemptible struggle." - Edmund Burke

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    I will concede that there might be some benefits in this proposed legislation that would reinforce our 2nd Amendment rights, as some members assert. However, I'm concerned that the words 'holstered or encased" are overly restrictive and not very well defined. I believe that this new law will be used by some LEOs or lawyers to persecute some OCers for performing an action that is currently lawful, and should remain lawful while the 2nd Amendment is still part of the Bill of Rights.

    Under this law, a person OCing a long gun on a sling, could be charged with Disorderly conduct while carrying a rifle openly in the mountains during a hunt, or while carrying a handheld shotgun in the marshes while duck hunting. If this interpretation is correct, and I concede my possible lack of legal expertise on this, then it would seem that this proposed law would make illegal an activity that is currently legal and appropriate. The proposed law states that additional illegal behavior is required in order for the person to be charged with DO, however, the legal part of this chain of activities would only include ALL guns that are "holstered or encased". Handcarrying or carrying a long gun with a sling could become an illegal activity. I can purchase a scabbard for a long gun for about $30 that could be considered a holster or an encasement for the long gun, so, would that $30 piece of equipment then suddenly make my jaunt around in public with a long gun acceptable? Doesn't seem to me that this would satisfy those concerned about this method of OC...

    My personal belief is that there is little reason to openly carry a long rifle into JC Penny as a normal part of living and going about my business. However, there are those that feel that I have little reason to openly carry my holstered handgun in public, and still others that feel there is little reason to covertly carry a handgun anywhere. I believe that we should all respect the Constitutional right when making the decision about HOW to defend ourselves and our loved ones, and then allow that same right to all citizens. That is the key principle here; is this proposed law attempting to imposed someone elses belief and perspective on other people? I believe that it is, and therefore is not keeping in the spirit of the Constitution, and should NOT become the law of this state.




    MY GUIDING PRINCIPLES
    • As a citizen in this Constitutional Republic, in order to maximize my freedom, I do assert my rights to act and think to maintain my freedom of life, liberty and property, and allow other citizens the same rights.
    • As a citizen in this Constitutional Republic, in order to maximize my accountability, I will ask that I and others be held fully accountable for violations of the rights of other in their pursuit of life, liberty and property.

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    I have had a real hard time with this bill. I definitely don't like the "holstered or encased" language, and the original bill presented last year did not contain that language. As a result, it received strong opposition from several law enforcement directions and was amended into language that made things more ambiguous than they already were. We succeeded in killing that bill. Most of that opposition came after the JC Penney incident, which sometimes makes me wonder if that wasn't a plant to stir up public outrage.

    After talking with several attornies and lawmakers, I have come to support this bill _as written_. While I definitely would prefer to not have the "holstered or encased" language, it will give better protection for basic handgun open carry, and like we have done in several cases, we can come back in future sessions and try to refine the language by removing the offending language.

    Just like we lost our rights incrementally over decades, we can regain them in the same way, one bite at a time. Yes, it does make it more work, but at least we can make progress.

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    "Holstered or encased" should be left out of the bill. There are many other peaceable ways to carry a firearm that don't rise to the level of disorderly conduct. Possession of a firearm, in and by itself, shouldn't be an element any crime, let alone disorderly conduct, and the bill should just specify that.

    As pointed out earlier, there is slung carry and lets not forget that most rifles aren't equipped with slings to begin with. Why would someone need a sling just to carry a rifle across the street to shoot at the neighbors house anyway? I could see the 'holstered or encased" wording causing problems for many innocent persons.

    As far as pistols, and I'm not trying to cause a debate, but not everybody chooses to use a traditional holster. There is pocket carry (sans holster) and other methods such as waistband carry and even aftermarket attachable metal clips for pistols and revolvers. Heck even the NAA Arms has a revolver where the grip folds over the trigger and the pistol hangs off the belt via a clip.

    Just have the statute state that possession of a firearm is not, by itself, an element of a crime. That would bring the law inline with Supreme Court cases.

  10. #10
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    As far as I can tell, this law has now gone into effect.

    I don't care to go into excessive detail, but there is a thread over on utahconcealedcarry on this topic for any who are interested. But I do want to try to correct a couple of misconceptions about the bill.

    First and foremost, the "holstered or encased" language does not automatically make a slung rifle a crime. The bill creates a safe harbor (check out the wikipedia article on "safe harbor" for more details) against disorderly conduct charges for a person whose firearm is carried either openly or concealed if the firearm is "holstered or encased". (How an encased gun might be openly carried is a bit beyond me, as is how a person carrying a concealed gun (including a pocket gun) might reasonably be charged with DoC, but not really relevant to this discussion.)

    The creation of a safe harbor does not automatically create an "unsafe harbor". A gun that is not holstered or encased is not automatically cause for a DoC charge. To make such a charge stick, the regular elements of DoC would need to be proven. There are situations where the presence of a slung rifle might contribute to a DoC charge. There are other situations where a slung rifle would not be a material part of any claim of disorderly conduct.

    The second area to discuss is why the "holstered or encased" language was even in the bill. It is there because after 5 years of trying to pass some protection against DoC for Openly Carried or Casually Concealed or even inadvertent display of a concealed firearm without this kind of a limit, we couldn't do it. Whatever one thinks of the prudence or propriety of carrying a slung rifle around a major urban area, two or three incidents that the media made sure were high profile had real effect on legislators. Whether it was just bad timing and bad luck, the anti-gun media exploiting to full value something that is fairly common, or some kind of agent provocateur I cannot say. But I do know that legislators could not be persuaded to give a carte blanche pass to walking around urban areas with a slung rifle.

    So rather than go one more year with no progress on this issue, we went for a bill that provided specific protections for the way 99% of openly carried firearms are carried, without accepting any new restrictions on the 1% case. Two steps forward with zero steps backward is a winning strategy even if the goal is 100 steps away.

    Under this bill, those who openly carry a holstered handgun should have strong protections against disorderly conduct charges.

    Those who choose to carry a slung rifle will continue to need to evaluate the totality of the situation to determine whether they are at risk of a DoC charge. The bill (now law) has changed nothing in this regard.

    I am not a lawyer and this isn't legal advice, but I'd expect the guy walking to or from the gun shop, or to or from a political rally, or at the rally with a slung rifle is unlikely to face DoC charges. The guy who loiters around a mall parking lot or who wanders around JC Penny with a gun on his shoulder or across his chest should probably be prepared for more scrutiny....just as he might have been prior to this law taking effect.

    Charles
    Last edited by utbagpiper; 05-16-2014 at 01:03 PM.

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