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Thread: Open Carry "scare" in Shamokin PA!

  1. #1
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    http://www.zwire.com/site/news.cfm?n...8782&rfi=6

    The good news is that the officer apparently did not lecture the open carrier to conceal.

    The bad news is that a member of the public in PA does not know that open carry is legal, and, that LEOs' time was wasted investigating legal activity and probably unde4r pressure from police managers to check for a LTCF when no LTCF is required to open carry (outside Philly and vehicles).

    OK PA open carriers, looks like we got some more "ejacatn" to do!

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    All the police have to do is askthree simple questions.

    1. Is the gun being brandished?

    2. How is the gun being carried? i.e. Is it in a holster or jammed down the waistband of there visible boxers?

    2. Is the person acting in a threatening manner toward anyone?

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    VApatriot wrote:
    2. How is the gun being carried? i.e. Is it in a holster or jammed down the waistband of there visible boxers?
    Is this a legal requirement? If not, then why would you include it?

    I mention this because there was a recent legal case in my area where a man was arrested for open carry (legal) and eventually won his case. There was a lot of talk about his choice to carry a condition-1 1911 in his waistband, but it was eventually ruled to be legally irrelevant to the case. If even responsible gun owners consider this a way to spot a felon, this case might have turned out differently. The judge told him to get a holster.

    Do you believe that a holster is a legal requirement to exercise our natural right of self defense? If not, perhaps you should shorten your list.


    --Sandy (WA)

    PS - The story I refer to was posted on the old version of this forum, and has not been migrated AFAIK. I believe it still exists on PDO somewhere.

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    I wouldn't consider it a legal requirement, but it I think it would be something worth noting if someone was making a man with a gun call.

    I'm not saying that the police should even necessarily respond just because the gun is in the waistband, but itwould make a definite impression onwhether or not the guy is a responsible gun owner. For example, in my humble opinion, someone who truly is a responsible gun owner would have the weapon properly secured, i.e. in a holster.

    I'm still not for the police stopping peoplejust because they have a gun, but I would understand why they would want to check out acall of a guy with a gun in his waistband. I don't believe it would be against the law to carry like that, but it would at least be worth the police coming andsuggesting a safer means of carry.

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    I should also add that an inside-the-waistband holster would be fine by me, so long as the firearm is well secured. My main concern would be an unsecuredgun that could easily fall and unintentional discharge, especially if the weapon is already in condition one.

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    sandy wrote:
    VApatriot wrote:
    2. How is the gun being carried? i.e. Is it in a holster or jammed down the waistband of there visible boxers?
    Is this a legal requirement? If not, then why would you include it?

    I mention this because there was a recent legal case in my area where a man was arrested for open carry (legal) and eventually won his case. There was a lot of talk about his choice to carry a condition-1 1911 in his waistband, but it was eventually ruled to be legally irrelevant to the case.
    Sandy, this Washington case of alleged illegal open carry was dismissed, as I recall reading the appeals opinion, only on the technical grounds that the charge proffered was based upona preempted city ordiance. The Judge was clear that had the man been charged under the state law in Washington, that there were 2 crtical facts that made his method of carry unlawfully scary: (1) The handgun was sticking out of his pants and not in a holster. (2) The trigger was cocked back, AKA, locked & cocked.

    These sorts of fact patters do matter at law - do not open carry in WA state Mexican carry with a locked & cocked handgun. period. It is illegal under this opinion inWA and the next criminal charge will probably be made correctly under state and not city law.

    I strongly recommend that everyone open carry in a holster - it's safer and looks better - "bad guys don't wear holsters." (after the crime, criminals often try to ditch the gun - being found with an empty holster near a crime scene raises suspicians)

    And anyway, looks matter when somebody tries to raise a common law or statutory violation of terorizing the people or somthing - the fact that the handgun was probably correctly "safed" by locking the trigger back is not relevant to the crime or terrorizing others if the "others" are clueless as to why the hammer would be back - all they know from TV shows is that the criminals pull the hammer back before capping people.

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    It definitely seems that education of PA law is needed. I agree with using holsters. Holster-less carry is dangerous and looks bad.

    ProguninTN

  8. #8
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    Arizona Revised Statutes take out some of the ambiguity by stating you have to carry in a holster ...



    ARS 13-3102. Misconduct involving weapons; defenses; classification; definitions

    F. Subsection A, paragraph 1 of this section shall not apply to a weapon or weapons carried in a belt holster which holster is wholly or partially visible, or carried in a scabbard or case designed for carrying weapons which scabbard or case is wholly or partially visible or carried in luggage. Subsection A, paragraph 2 of this section shall not apply to a weapon or weapons carried in a case, holster, scabbard, pack or luggage that is carried within a means of transportation or within a storage compartment, map pocket, trunk or glove compartment of a means of transportation.

    Arizona-Texan

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    Neither the Declaration of Rights in the Pennsylvania Constitution nor the second amendment of the U.S. Constitution say anything about a holster or scabbard being necessary for self-defense. The guy was doing nothing criminal and should not have been harassed, detained, mistreated, impeded, or otherwise infringed upon in any way. This should not even be a newsworthy event unless the person who called the police is being charged with some sort of violation.

    Note: A permit is NOT needed to exercise one's rights.

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    Mike wrote:
    do not open carry in WA state Mexican carry with a locked & cocked handgun. period. It is illegal under this opinion inWA and the next criminal charge will probably be made correctly under state and not city law.
    I did read the opinion, and I apologize for misrepresenting the summary. Yes it was dismissed for a completely different technicality. The comments about waistband carry were not favorable, but were not relevant to the reason the case was dismissed.

    It is my understanding that the comments about the condition of carry were not legally binding. They are an accurate set of expectations should this sort of case ever come before this judge in the future, but they are not legally binding precedent. I hope I haven't misunderstood that detail.

    In any case, I believe quite strongly that cases like this are areas where we can reaffirm the right to open carry as an absolute right, and strike down the vague clause in RCW 9.41.270. This man did not hire a lawyer at all, and got off mostly out of luck. With proper defense, I believe that the argument can be made and won that open carry is precisely whatis protected in the WA State Constitution, and that any restrictions on mode of carry are unreasonable when based only on what laymen fear might happen. The law should be clear that it does not matter how you carry it if you are able to safely control it.The choice of how to carry should be a choice, not a limitation on our rights. I believe the letter and intentof the laware clear and on our side, but the legal interpretationsvary too much for my comfort. With good defense, a solid high level precedent could be set that clarifies the interpretation.

    This is why I disagree with your advice. I personally always carry with a holster, but I think advising people to avoid waistband carry for legal reasons is a step in the wrong direction. Once we are clear on that point, advising someone to carry in a holster is a matter of retention, appearance, and speed of draw... all things in which we have a choice.

    --Sandy (WA)

    PS - Sorry to put WA issues in the PA forum. My relevant comment has already been made, that the decision of whether to call police should not be made based on whether the gun is carried in a holster. I believe this line of thinking leads in the wrong direction, so I spoke up. Even if you put in an item like "Do you believe that the person is up to no good?" you can still be wrong and put an inoccent person through hassle that he does not deserve. If this ever happens, please include an item on there for apologizing if the person turns out to be no threat.

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    VApatriot wrote:
    I should also add that an inside-the-waistband holster would be fine by me, so long as the firearm is well secured. My main concern would be an unsecuredgun that could easily fall and unintentional discharge, especially if the weapon is already in condition one.
    I wonder how many of the gun-fearing general public would know the difference between someone carrying in an IWB holster and someone carrying "Mexican" style?

    I'll wager not many.

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    A previous poster wrote:

    "All the police have to do is askthree simple questions.

    "1. Is the gun being brandished?

    "2. How is the gun being carried? i.e. Is it in a holster or jammed down the waistband of there visible boxers?

    "3. Is the person acting in a threatening manner toward anyone?"

    First, there is no law in Pennsylvania concerning brandishing. There is terroristic threatening, but not brandishing.

    Second, there is no requirement for the gun to be in a holster. Yes, it can be jammed down into one's visible boxers. Case law covers this.

    Third is the only valid question to be asked by the police when answering the telephone.

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    I would think that most everything coming under the heading of "Brandishment" would be equally well represented by "disturbing the peace," legally speaking. If I'm wandering around witha gun in my hand in public,rather than strapped to my hip,I'm either deranged or a *******: I've deployed a device capable of deadly force in a public venue. I carry a lockback in my pocket, but I don't stroll the mall with it locked open in my hand, either, and the result will probably be the same;even if I'm not lunging at people, I'd expect to be asked some pointed question by nice people in crisp blue uniforms.

    The point is not what's legal when it comes to these particular questions, but rather what constitutes reasonable suspicion.I think the second question is even a bit reasonable, althought the boxers comment doesn't belong in the mouth of any officer of the law so far as I am concerned. "Does the weapon appear to besecured in a holster?" might be as far as I'd go - not because it's necessary, but because it shows a pattern of responsible gun handling and ownership.

    The fact is that any call is going to probably get a visit from the local cops, because they can't afford to take the chance that someone interested in exercising their rights is not someone looking to start some sh**. And this will continue to be the case, at least until open carry is a lot more common.

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