Hold Fire on Seattle (and possibly Olympia)

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I know that some people on here have been open carrying in Washington in general, outside of Seattle, which is fine. However, due to an email which I've confirmed to be from a Seattle Police officer, I am highly recommending that if you have any desire to open carry in Seattle, especially downtown, to please not do so at this time.

Why? Well, here is the body of the email that I received:

One in particular thought it was illegal. I pointed out that the law is actually vague. It prohibits it only if carrying it (not exact words) if it is done in a manner that causes alarm to the general citizenry.

So open carry in podunk town E. Wa. would not likely scare someone and would therefore be legal.

Open carry in downtown Seattle would scare the bejesus out of folks, probably end with a SWAT callout, and would definitely be charged by the prosecutor.

Fair? No. The law? Yes. And your jury would be made up of Seattlites.

That's the way I read the law anyway.

I'm no lawyer.

At the very least, the officer here admits that he is not a lawyer, and makes some interesting statements. The officer is flat out wrong on the law as stated, however my biggest concern here is the idea of a "SWAT callout".

As we well know, SWAT teams across this country, in call outs, have made some pretty horrific mistakes, including raiding wrong houses, shooting people who don't "cooperate", etc.

Encounters with law enforcement officers are one thing, encounters with a militarized police force who's rules of engagement is to "take down" a person that they target by any means neccesary is quite another thing entirely. I don't think any of us want to leave behind a family who has to bury us or cremate us. Granted, any bad shoot from a SWAT team to a person open carrying would result in massive liability, AFTER you've been shot and possibly killed. However, the point being is: I don't want to leave this world just yet due to the mind numbing stupidity of SOME of the law enforcement officers in this state who absolutely cannot handle the idea of someone who is just as "openly armed" as they are, and I'm sure this is a common opinion.

This does not mean that we're giving up. Far from it. 44Brent and I were not planning on going into Seattle anyway until we further up our paper trail on training bulletins. We intend to make sure that Seattle is entirely cut off and surrounded by cities & counties that have educated their officers on open carry. As folks here may know, the KCSO is based in Seattle, and there's a lot of communication back and forth between the two departments.

At this very moment, we have several irons in the fire on this situation.

Thus far, we only have Federal Way's training bulletin. However, things are rolling to where we will hopefully have training bulletins from three of the largest cities in the state soon. Let's also keep in mind (from other forum posters and my own personal discussions) that the King County Sheriffs also believe that open carry was legal. This was due to a bulletin sent out in a 1997 bulletin on the "case and carry" gun law being repealed, however it would appear that a few officers need some refreshers, despite many of the KCSO deputies that I have asked during my times at the courthouse (for other work) told me that open carry is legal.

As for Olympia, I am asking for a hold on open carry in Olympia due to information gathered from a forum post on The High Road. I will be making contact with Olympia PD on this issue personally and asking the usual "training bulletin" questions. With any luck, I should have something within a few weeks, because the process with them hasn't started.

I will be posting another thread, asking for assistance with another issue.

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Please do not email the police to ask for legal advice or try to get them to admit that open carry is legal in Washington or any state. Frankly, it's best to ignore the police unless you need their help, or are making a complaint against them either in court or thru their chain of command/political controllers.

Nobody is likely to ever getmany or most police forces to go on record that open carry in a holster is legal - the only way to work the issue is to open carry in public such that they face a fait accompli.

Ignore the police and just go about your business in a manner obviously notintended to alarm anyone.

Yes, the WA state statute is a little vague, but so are many laws, and the recent appeals court case seemed to limit it's application to at least slightly unusual circumstances - i.e., Mexican carry where the hammer is cocked back. Applying the statute to all holstered carry would lead to an absurd result

The cocked back hammer probably does cause alarm in some people. The Mexican carry thing does look awfully bizarre. Taken together in an urban setting where even open carry in holsters is rare, and well, there you have it. That is probably the limit of the law's application to the open carriage of a handgun in public.

Now walk thru a mall with a shoulders AK-47 clone and spare mags, well, that might also alarm folks within the meaning of that statute, not to mention the obvious problem with muzzle control of a long gun in a crowded multi-story building

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Nobody is likely to ever getmany or most police forces to go on record that open carry in a holster is legal - the only way to work the issue is to open carry in public such that they face a fait accompli.

Mike, as you can see, at least as far as the ones here, we are getting police departments on record. Doing it fait accompli, while nice and liberating, could likely get you falsely arrested if you do it under the wrong circumstances. Believe me, open carrying in Seattle is a consideration if they refuse to issue a training bulletin despite their sister agencies throughout King County and other urban areas in Washington do the same thing, however I want that to be a last resort.

Needless to say, if and when I do it, I will have a lawyer on retainer, my life insurance paid up, and give orders for my estate to file a lawsuit if Seattle PD does anything stupid If I happen to survive it, a lawsuit will be filed by me personally. I'd rather not have to do it but I will.

Please do not email the police to ask for legal advice or try to get them to admit that open carry is legal in Washington or any state. Frankly, it's best to ignore the police unless you need their help, or are making a complaint against them either in court or thru their chain of command/political controllers.

A few things about the statements:

1) I did not personally email the Seattle PD officer. An email was sent by a third party to someone who was identified as a Seattle PD officer on a web board. Once he got the answer, he sent a copy of it to me.
2) If you want to get technical, training bulletins DO get issued due to complaints, and what we're are doing IS complaining through the chain of command so that a training bulletin will be issued so that officers will not A) Make stupid statements and B) make false arrests.

Mike, I respect your opinion, believe me, if it weren't for opencarry.org we wouldn't have made any progress at all here in Washington. However, this isn't Virginia, where open carry is well known as legal. This is Washington State, where we've had RCW 9.41.270 as an albatross around open carrier's necks for the last few decades, and especially in the last ten years when the some cops reacted to the loss of their statutory "open carry ban" with massively reinterpreting RCW 9.41.270 to suit their purposes and discretion.

Keep in mind two things: There's a difference between an officer and his department, and there's a difference between asking for permission from a law enforcement officer for open carrying, and asking in order to gauge if there is a problem in that particular jurisdiction. It's tactics, not permission getting. Such training bulletins are not neccesary in Virginia, due to the political circumstances there, however they are neccesary here, until we can get some more backup in the form of an AG's opinion (which is in the pipeline, but general takes a damned long time).

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Lonnie - I am not trying to interfere with local initiative in WA state - obviousy, you all have more information and are there on the ground.

My rambling thoughts follow:

I think that the thin case law in WA state supports by inference that a holstered handgun carried peacibly is not a violation of the statute your cite. No conviction has been sustained for such conduct as far as I know.

Therefore, I opine for what it's worth that in the event a false arrest were to occur, the event would clear the air. This was the Virginia experience with the "Star Bucks" arrests, 2 years back of 18 year olds open carrying while ordering coffee in Fairfax County.

Further, I opine that calling for folks to not OC until proper police guidance is issued cedes power to the police where it does not belong.

Having said that, bear in mind:

1. There is nothing wrong with warning folks that in jurisdiction X, there appears to be lack of proper guidance to LEOs that OC is legal in WA state.

2. I am sitting hear a long way a way from Seattle, safe in Virginia which does not have any statute like the one you write.

3. Finally, I have to admit, if I were a police chief, I would not issue any guidance to my LEOs that open carry is always legal in WA state b/c the state statute makes it clear this is not true - for example, as the one case seemed to hold, open mexican carry in a shopping mall of a handgun with the hammer locked back in WA state is alarming and therefore unlawful by statute. Instead, I would have my department legal counsel, in conjunction with the state AG, create internal guidelines to assist the officers in differentiating lawful open carry from unlawful open carry.

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Just to add some perspective here, Seattle is a BIG city with a largepopulationof liberal coffee-drinking "hippies" that would about have a heart attack justhearing that youcarry a gun, much less seeing it. Now don't get me wrong, I'm not trying to badmouth liberals here (I am one), just the psycho ones.

Seattle has a very big police department, and they are used to gang violence and psychopaths with guns. Lets face it, there hasn't been much in the way of positive news for guns in WA recently. Guns aren't a popular thing to be seen by a cop with out here. I've personally dealt with several seattle cops that are much less than friendly, and like to flex their authority.

I wouldn't recommend carrying in seattle anyway, just because of the "melting pot" situation. There are SO many immigrants from SO many countries out here, that it is rediculous to think evenhalf of them know all of the laws (not to say that people native to seattle know the laws any better). I'm just saying that you'd get a LOT of "man with gun" calls, because a minority of people in seattle are aware of open-carry laws.

I think it would be hard to imagine life in seattle if you don't live here, much like it would be hard for me to imagine life in virginia. Let's just say, as a resident of the Seattle area, I wouldn't recommend carrying out there without knowing that the cops know it's ok.

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instead, I would have my department legal counsel, in conjunction with the state AG, create internal guidelines to assist the officers in differentiating lawful open carry from unlawful open carry.

And a training bulletin is an INTERNAL guideline. The only reason it's public and out there as a .pdf is because I sent in a Public Records Act to grab it from Federal Way, and under state law, all training bulletin are public information to be requested. It's not a matter of them "admitting" that it's legal in public or on their web site.. The issue is about having their OFFICERS understand that it's legal, and that's the point of training bulletins.

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The cocked back hammer probably does cause alarm in some people. The Mexican carry thing does look awfully bizarre.

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Iagree in part and disagree in part.

I agree that "Mexican" style carry is just plain stupid. Although Mike didn't bring it up, I am opposed to carrying in an open top holster, regardless of whether the hammer is cocked.

I do carry a 1911 in condition 1 (cocked and locked) in a Don Hume H272 holster.
The holster has a thumb-break snap that is located in between the hammer and the frame of the pistol. The thumb break strap doesn't make the pistol any "safer". However, any person of normal intelligencewho closely observes it will probably correctly conclude that the gun is fully secured.

I haveused this method to carry in various states including Washington, and have never had a complaint.

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One more thing:

as the one case seemed to hold, open mexican carry in a shopping mall of a handgun with the hammer locked back in WA state is alarming and therefore unlawful by statute.

I'm intimately familiar with the case that you cite.

1) It was decided by the Superior Court, not a court of appeal, and therefor not citable. Also, his determination of his method of carry by the judge to be violative of state statute is in dicta.
2) The case was thrown out on preemption grounds because he was charged with a city ordinance violation.
3) Jason was not carrying "mexican carry". He was carrying IWB with the hammer cocked back.
4) Jason made absolutely no arguments to the judge in regards to his method of carry at all. If he had to do so, such as being charged under the state statute, he could have argued that the hammer being cocked back is normal for a 1911 pistol. He only made the "hammer cocked back" comment because he was unfamiliar with the design of the 1911 (though one of the most common designs out there).

Granted, I do recommend carrying in a OWB holster for many reasons. However carrying in one is NOT required.

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Lonnie Wilson wrote:

Jason made absolutely no arguments to the judge in regards to his method of carry at all. If he had to do so, such as being charged under the state statute, he could have argued that the hammer being cocked back is normal for a 1911 pistol. He only made the "hammer cocked back" comment because he was unfamiliar with the design of the 1911 (though one of the most common designs out there).

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I'm sure you have the best grasp of the details, but for purposes of construing the statute, the court seemed to find the locked back hammer a fact tending to casue alarm, agreed?

If so, the fact that the gun was properly safed by locking the hammer back is not relevant. The statute's focus is on the perception of the public, many or most of whom, even if they own guns, might find the hammer locked back alarming.

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If so, the fact that the gun was properly safed by locking the hammer back is not relevant. The statute's focus is on the perception of the public, many or most of whom, even if they own guns, might find the hammer locked back alarming.

Then we're right back where we started with ad hoc determination of legality, because a lot of people don't like "black guns" either. Again, the determination of that was made in dicta and is not citable. The purpose of the law was not as you stated. Again, Legislative intent rules here.

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Lonnie Wilson wrote:

If so, the fact that the gun was properly safed by locking the hammer back is not relevant. The statute's focus is on the perception of the public, many or most of whom, even if they own guns, might find the hammer locked back alarming.

Then we're right back where we started with ad hoc determination of legality, because a lot of people don't like "black guns" either. Again, the determination of that was made in dicta and is not citable. The purpose of the law was not as you stated. Again, Legislative intent rules here.

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Legislative intent?

1. Here is the relevant text, yes?: "RCW 9.41.270
Weapons apparently capable of producing bodily harm — Unlawful carrying or handling — Penalty — Exceptions.

(1) It shall be unlawful for any person to carry, exhibit, display, or draw any firearm, dagger, sword, knife or other cutting or stabbing instrument, club, or any other weapon apparently capable of producing bodily harm, in a manner, under circumstances, and at a time and place that either manifests an intent to intimidate another or that warrants alarm for the safety of other persons. . . ."

2. Courts will look to text first over legislative intent, which appears not to be documented anyway in the "findings" published at http://apps.leg.wa.gov/RCW/default.aspx?cite=9.41.270.

3. The Superior Court, on appeal from conviction in thetrial court, in the so called FishorMan case, voided the conviction on the basis that the local statute was preempted, but then wrote as follows (according to http://fishorman.blogspot.com/2005_12_01_fishorman_archive.html):

"Appellant must realize that had the State charged him under RCW 9.41.270 the conviction would most likely have been sustained. The witnesses in this case, two separate district court judges, a unanimous jury, and the City Prosecutor all agreed that Appellant’s choice to carry a firearm in his waistband with the hammer cocked 'warranted alarm for the safety of other person.' If Appellant seeks to educate the public about the scope of the constitutional right to bear arms in the state of Washington, he may wish to utilize less provocative methods that do not entail the threat of criminal prosecution.)"

4. All authorities are "citable" by parties before a court, and the court itself- the case may not provide binding or even doctrinally pursuasive precedent, but what other cases like this are there? Any?

I can see it now - ". . .and as the Superior Court in FishorMan noted, it is reasonable for a jury to conclude that a choice to carry a firearm in his waistband with the hammer cocked back may "warrant alarm for the safety of other persons . . ."

The WA state Supreme Court just refused to enforce preemption when it comes to gunshows - do you think they care about the RTKBA enough to strike down a future jury's collective judgement that a choice to carry a firearm in his waistband with the hammer cocked back warranted alarm for the safety of other persons . . .?

I think you should selfishly use FishorMan as a guidepost - obviously the legislature did not mean to outlaw all open carry else it would have said so in RCW 9.41.270. On the other hand, the statute does not preclude the conclusion that some forms of open carry might be unlawful. The FishorMan "non-precedential precedent" indicates that MAYBE a choice to carry a firearm in the waistband with the hammer cocked back warrants alarm for the safety of other persons.

Use it to your advantage by not open carrying a firearm in your waistband with the hammer cocked back.

If I were going to open carry in WA state, I would go one step further to help preclude a charge and conviction under RCW 9.41.270 by using a holster with a retension strap - it LOOKS better, and that is the point to defeat RCW 9.41.270's element of "alarming" the public.

Once you have more folks OCing and press reports, etc., maybe some folks going to city council meetings OCing to testify on RTKBA issues, then the public's understanding of OC will trend away from "OC = alarming," as it has in other states where OC popularity has risen - i.e., VA.

Eventually you need to get the legislature to either repeal RCW 9.41.270 and go with a standard brandishing statute (also always subjective), or define what conduct does not constittue alarming (i.e., gun carried openly in a holster, or what ever).

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The hold fire has been released from Olympia. They are now aware that open carry of a handgun is legal

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Lonnie,

Just for clarification who is "they" referring to?

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Police Department.

I'll post the PNW-ALERT that addressed Olympia by tommorow.

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Excellent. Once again thanks for all your work Lonnie.