Illegal / Legal holster - Restaurants

mirwin · Feb 4, 2008

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I have been searching around for the specific answer to this question and can't find it. I often conceal carry and am interested in beginning to open carry more often and was wondering if my IWB COMP-TAC MTAC holster would be sufficient for open carrying in restaurants with an ABC license.

scenario :

I am going about my business shopping throughout the day, its the spring time so I have a button down shirt on over a t-shirt which conceals the IWB holster. When I am going to get lunch at a restaurant serving alcohol, is it possible to just take the long sleeve shirt off, hence showing part of the pistol?

Also as a side note, in VA, since open carry is legal, if I have a conceal carry permit and my shirt (which is hiding the handgun) gets pushed up accidentally, would that turn into the realm of open carry or brandishing? I know that states such as Ohio, who have conceal carry availability but not open carry, would have a problem if your pistol was shown accidentally.

roscoe13 · Feb 4, 2008

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That holster should be fine. As long as you can tell it's a firearm, it's not concealed.

Having your concealed handgun flash occasionally is fine, unless you're one of those very few places where OC is prohibited.

A pretty good summary can be found here: http://opencarry.mywowbb.com/forum61/3356.html

mirwin · Feb 4, 2008

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Thanks for the quick reply, that makes me a lot more comfortable to know that I can go from conceal -> open as I choose while out and about

Scheetz · Feb 4, 2008

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mirwin wrote:

I am going about my business shopping throughout the day, its the spring time so I have a button down shirt on over a t-shirt which conceals the IWB holster. When I am going to get lunch at a restaurant serving alcohol, is it possible to just take the long sleeve shirt off, hence showing part of the pistol?

Also as a side note, in VA, since open carry is legal, if I have a conceal carry permit and my shirt (which is hiding the handgun) gets pushed up accidentally, would that turn into the realm of open carry or brandishing? I know that states such as Ohio, who have conceal carry availability but not open carry, would have a problem if your pistol was shown accidentally.

First part of the question: You are fine either removing the over shirt or tucking that shirt behind your holster. People have started calling it the Virginia Tuck. As long as an officer can identify it as a firearm you are fine. About brandishing you will not have any issues. It is not illegal if your gun can be seen while bending over or doing whatever. Only becomes an issue if you draw your weapon.

wchiang · Feb 5, 2008

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Scheetz wrote:

Only becomes an issue if you draw your weapon.

This is true to some extent. I've heard that it is still considered brandishing even if you were to remove your outter jacket to reveal that you are carrying. The law cites brandishing as:

Virginia Code § 18.2-282

" A. It shall be unlawful for any person to point, hold or brandish any firearm or any air or gas operated weapon or any object similar in appearance, whether capable of being fired or not, in such manner as to reasonably induce fear in the mind of another or hold a firearm or any air or gas operated weapon in a public place in such a manner as to reasonably induce fear in the mind of another of being shot or injured."

The question then becomes, did you have a reasonable explanation to "take off your jacket" or whatever article of clothing that was concealing your firearm. If you are in an altercation in the middle of winter and you take off your overcoat to reveal that you have a gun, you might have some issues when the police come.

Same applies in armed robbery. If someone walks up to you and lifts up his shirt to reveal he's ghetto packing a gun in his waistband, he has induced fear.

In short, brandishing does not simply apply to actually just drawing the gun.

DeadCenter · Feb 5, 2008

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wchiang wrote:

Scheetz wrote:

Only becomes an issue if you draw your weapon.

Click to expand...

This is true to some extent. I've heard that it is still considered brandishing even if you were to remove your outter jacket to reveal that you are carrying. The law cites brandishing as:

Virginia Code § 18.2-282

" A. It shall be unlawful for any person to point, hold or brandish any firearm or any air or gas operated weapon or any object similar in appearance, whether capable of being fired or not, in such manner as to reasonably induce fear in the mind of another or hold a firearm or any air or gas operated weapon in a public place in such a manner as to reasonably induce fear in the mind of another of being shot or injured."

The question then becomes, did you have a reasonable explanation to "take off your jacket" or whatever article of clothing that was concealing your firearm. If you are in an altercation in the middle of winter and you take off your overcoat to reveal that you have a gun, you might have some issues when the police come.

Same applies in armed robbery. If someone walks up to you and lifts up his shirt to reveal he's ghetto packing a gun in his waistband, he has induced fear.

In short, brandishing does not simply apply to actually just drawing the gun.

And the dictionary says: bran·dish

(brān'dĭsh) Pronunciation Key tr.v. bran·dished[/b], bran·dish·ing[/b], bran·dish·es[/b]

To wave or flourish (a weapon, for example) menacingly.

Taking your jacket off to go eat is not brandishing. And that was his question.

DC

wchiang · Feb 5, 2008

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DeadCenter wrote:

And the dictionary says: bran·dish

(brān'dĭsh) Pronunciation Key tr.v. bran·dished, bran·dish·ing, bran·dish·es

To wave or flourish (a weapon, for example) menacingly.

Taking your jacket off to go eat is not brandishing. And that was his question.

DC

Unless he is eating "menacingly"...

DeadCenter · Feb 5, 2008

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wchiang wrote:

DeadCenter wrote:

And the dictionary says: bran·dish

(brān'dĭsh) Pronunciation Key tr.v. bran·dished, bran·dish·ing, bran·dish·es

To wave or flourish (a weapon, for example) menacingly.

Taking your jacket off to go eat is not brandishing. And that was his question.

DC

Click to expand...

Unless he is eating "menacingly"...

Correct -

apocryph · Feb 6, 2008

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DeadCenter wrote:

And the dictionary says: bran·dish

(brān'dĭsh) Pronunciation Key tr.v. bran·dished, bran·dish·ing, bran·dish·es

To wave or flourish (a weapon, for example) menacingly.

Taking your jacket off to go eat is not brandishing. And that was his question.

DC

Unfortunately, how the dictionary defines a term and how the law defines a term are sometimes strikingly different.

IANAL, but I recall from my CHP course when Richard Gardiner (VA gun laywer) was talking about brandishing, he related his experience with a older client with a hearing problem who was OC'ing and had a habit of resting his strong hand on the butt of his gun. A stranger called out to this guy for one reason or another, guy turned around with hand on butt of gun and asked stranger to repeat. Stranger was frightened by what he thought was a hostile action and called cops. Guy charged with bransishing.

I OC from time to time, and am not at all concerned with a brandishing charge, and would urge the OP to find something else to worry about as well, but when OCing I always take care to resist the temptation to touch the butt of my gun lest someone get the wrong idea.

DeadCenter · Feb 6, 2008

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apocryph wrote:

DeadCenter wrote:

And the dictionary says: bran·dish

(brān'dĭsh) Pronunciation Key tr.v. bran·dished, bran·dish·ing, bran·dish·es

To wave or flourish (a weapon, for example) menacingly.

Taking your jacket off to go eat is not brandishing. And that was his question.

DC

Click to expand...

I OC from time to time, and am not at all concerned with a brandishing charge, and would urge the OP to find something else to worry about as well, but when OCing I always take care to resist the temptation to touch the butt of my gun lest someone get the wrong idea.

This is true and I agree. I never place my hand on the butt of my gun in public.

We were originallytalking about taking off your shirt to enter a restaurant, or the wind blowing it open exposing your concealed firearm (you have a chp). Neither is brandishing.

DC

VAopencarry · Feb 6, 2008

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§ 18.2-308. Personal protection; carrying concealed weapons; when lawful to carry.
A. If any person carries about his person, hidden from common observation, (i) any pistol, revolver,.............For the purpose of this section, a weapon shall be deemed to be hidden from common observation when it is observable but is of such deceptive appearance as to disguise the weapon's true nature.

So if your gun's 'true nature' is not disguised or hidden from common observation, you are OC'ing.

Mr. Y · Feb 7, 2008

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So if your gun's 'true nature' is not disguised or hidden from common observation, you are OC'ing.

So... If I've encased it in a laptop bag that has GUN in blaze orange letters and with a trigger actuating mechanism hiding it from all observation, I'm open carrying? :uhoh:

Yeah, yeah... weird example. An IWB may well be fine if exposed, and it may not be. It all depends. If your gun, holster, belt and shirt are black, effectively camoflauging the gun, but not actually hiding it, are you concealing from common observation?

How about if your jacket that you just removed partially obscures only a portion of the butt of your handgun? Even if it is only for a short period of time and incidental, the Virginia Courts say that this is a violation of 18.2-308.

So bear in mind the totality of your circumstance. One thing an OWB gets you is absolutely no concealing of any part of the gun thatwould hide that it is a gun provided you're not covering it.

apocryph · Feb 7, 2008

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Mr. Y wrote

So... If I've encased it in a laptop bag that has GUN in blaze orange letters and with a trigger actuating mechanism hiding it from all observation, I'm open carrying? :uhoh:

This was never answered to my satisfaction either. Before I got my CHP I always carried my Glock 19 in a Blackhawk CQC OWB holster at 3 o'clock, precisely because there is no missing a holster like that. Unless you happen to be looking at me from my 9 o'clock, it's obvious what I've got.

I'm not aware of case law dealing with these edge cases, and I imagine in practice the intent to conceal is taken into account, but it's not something I've been willing to risk.

Now that I CC, though, it's a more difficult call. If I CC IWB, am I to risk handling my gun to move it to an OWB holster just so I can eat at Friday's or whatever? I'm not suggesting one must or even should do such a thing, it's just something I think about. Such is the burden of an armed citizen, I suppose.

DeadCenter · Feb 8, 2008

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apocryph wrote:

Mr. Y wrote

So... If I've encased it in a laptop bag that has GUN in blaze orange letters and with a trigger actuating mechanism hiding it from all observation, I'm open carrying? :uhoh:

Click to expand...

Now that I CC, though, it's a more difficult call. If I CC IWB, am I to risk handling my gun to move it to an OWB holster just so I can eat at Friday's or whatever? I'm not suggesting one must or even should do such a thing, it's just something I think about. Such is the burden of an armed citizen, I suppose.

I have to disarm myself twice a week going to the post office. To a box that I rent in a public facility. Unnecessary handling of a firearm for sure.

DC

Illegal / Legal holster - Restaurants

mirwin

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roscoe13

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mirwin

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Scheetz

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wchiang

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DeadCenter

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wchiang

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DeadCenter

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apocryph

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VAopencarry

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