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Thread: Making charges stick against lawful open carry.

  1. #1
    State Pioneer ConditionThree's Avatar
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    May 2006
    Shasta County, California, USA

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    It seems detractors seek any means possible to discourage open carry, including promises that anyone who open carries would be charged with various violations of the law. I will attempt to examine them here.

    PC 417 Brandishing.

    417. (a) (2) Every person who, except in self-defense, in the presence of
    any other person, draws or exhibits any firearm, whether loaded or
    unloaded, in a rude, angry, or threatening manner, or who in any
    manner, unlawfully uses a firearm in any fight or quarrel is
    punishable as follows:

    Detractors assert that all that needs to occur for a procecutable offense is for someone to 'feel threatened' by the open carry (ie; 'exhibition') of a firearm. I contend that the action of exhibiting a firearm must be executed in a 'rude, angry, or threatening manner' and the violation cannot rely on someone's averse reaction or fear of a firearm. An inanimate object cannot be rude, angry, or threatening, but the conduct of a person carrying it can.

    Edited to add;

    I've thought of another absurdity to this contention that ALL exhibitions of firearms constitute brandishing. On another forum where I participate my signature line includes a photo of me holding my firearm. It occured to me that if what these people are saying is true, that if someone felt "threatened" by the photo of me holding my pistol, that too would constitute brandishing-as a photo is another means of 'exhibiting' a firearm.

    417.4. Every person who, except in self-defense, draws or exhibits
    an imitation firearm, as defined in Section 12550, in a threatening
    manner against another in such a way as to cause a reasonable person
    apprehension or fear of bodily harm is guilty of a misdemeanor
    punishable by imprisonment in a county jail for a term of not less
    than 30 days.

    If what the detractors were saying were completely true, it would be possible to be arrested for open carry of a BB gun or a realistic squirtgun in a belt holsterif someone 'felt threatened' by it. The concept isn't wholly preposterous, but I doubt even police would entertain an arrest, when no immediate threat is established.

    PC 245 Assault with a deadly weapon

    240. An assault is an unlawful attempt, coupled with a present
    ability, to commit a violent injury on the person of another.

    245. (a) (2) Any person who commits an assault upon the person of another
    with a firearm shall be punished by imprisonment in the state prison
    for two, three, or four years, or in a county jail for not less than
    six months and not exceeding one year, or by both a fine not
    exceeding ten thousand dollars ($10,000) and imprisonment.

    Detractors have also forwarded that open carry would constitute a charge of ADW. This is nothing less than a scare tactic as PC 240 defines an assaultas an attempt to commit a violent injury. This would require an action taken against another person by a perpetrator- not the mere presense of an inanimate object such as a firearm. Imagine a 'victim' falling face first on the exposed grip of a pistol and receiving an injury-- is the person who is carrying the pistol guilty ofADW? No. There was no 'attempt' or 'commission'.Look at it this way; a simple assault (violation ofPC 240) could be commited by a person using only their hands- and that person could be carrying concealed or exposed, without being guilty of ADW.
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  2. #2
    Moderator / Administrator
    Join Date
    May 2006
    Fairfax County, Virginia, USA

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    ADW = ?

    Please define acronyms so this board can be most useful.

    Those that argue that open carriers should be afraid of their own shawdow are suddelny very quiet when asked for cites to actual arrests or especially convictions.

  3. #3
    Accomplished Advocate
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    May 2006
    Bedford, Texas, USA

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    ADW I assume would mean 'Assault with a Deadly Weapon'.

  4. #4
    Regular Member
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    Feb 2007
    , ,

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    In criminal law, mens rea(the mental intent) and actus rea(the action) must occur at the same time.

    There is no way in hell that you can be convicted for brandishing if you did not perform the action. That being said, I would not be surprised if some libtard said you did "brandish" the gun in a threatening manner just to get you arrested....stanger things have happened.

  5. #5
    State Researcher
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    Jul 2007
    Stanislaus County, California, USA

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    FreedomIsNotFree wrote:
    In criminal law, mens rea(the mental intent) and actus rea(the action) must occur at the same time.

    There is no way in hell that you can be convicted for brandishing if you did not perform the action...

    I would add that you don't have to draw the firearm to brandish/exhibit it.

    I once arrested an off-duty Dept. of Justice officer (a prison guard, I think) at a night club where I was working as private security. The officer had a gun holstered on his belt, but concealed by a long jacket. He was involved in an argument, and pulled back his jacket to show the other person he had a gun. He did this without showing any ID or identifying himself as a DOJ officer.

    Of course, when the local cops showed up, he was released and not charged. But I wouldn't expect a "civilian" to get such special treatment.
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  6. #6
    Newbie cato's Avatar
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    Oct 2006
    California, USA

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    Transitioning from concealed carry during an argument may qualify as 417 PC brandishing as we know have an "angry and threatening" display. This cannot apply to OC except perhaps in the same situation angrily grabbing thegrip even if it is still holstered.

    However, the justification of "in self defense", does create IMO a high bar for the prosecution to over come if the arrested is willing to go to a jury trial. It would also be very hard to convict for this offence if the gun never left the holster in either a CC or OC situation.

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