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  1. #1
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    I was just skimming through some more OC article and ran across this story of a man in Ellensburg. I am sure that a lot of people here have read this but i wanted to know if i should be relieved because the officers in Ellensburg should definitely know the laws now or should i be concerned because of what they did in the first place and it could happen to me living here in Ellensburg.

    http://fishorman.blogspot.com/2004/06/details-20.html


    It makes me upset that the first court found him guilty im glad the appeals reversed that:

    http://fishorman.blogspot.com/2005/1...-decision.html


    The other thing that bugged me is that he wasn’t issued the citation till AFTER he filled a complaint about how he was treated in Fred Meyer that day. Do you guys think that i am at risk living in Ellensburg and OCing? It also was stated that if they would have tried him under State law and not the city law he might not have gotten off.

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    Regular Member just_a_car's Avatar
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    But, due to some very insightful information early on from fellow Washington gun rights activist, Lonnie Wilson, I turned this plea deal down TWICE. The information from Mr. Wilson caused me to look into the law I was charged with further and see it's many failures.
    That would be our own Lonnie Wilson, here on the boards.

    Hey Lonnie, if you read the second link, it sounds like this guy (Jason) is still in fear of prosecution for his OC. Maybe we can invite him to some of our lunches?

    Izzle, if you're still worried about OC, feel free to get a hold of Lonnie via PM in regards to this case or perhaps try to make it out to one of our lunches where the majority of us will likely be OC'ing, though it's certainly not a requirement.
    B.S. Chemistry UofWA '09
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    ya just wanted to get some insight if i should be worried or not. It really sounds like the Ellensburg PD really went over the top to try to get this guy. I know what they want is to scare people into compliance but i really cant afford to fight criminal charges while im in school haha

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    Per the Casad case the judge is wrong about being charged under state law. The hammer position is irrelevant, BTW.

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    well there is also the fact that he had it stuck in the waist of his pants.... plus the fact isnt that the judge was right or wrong to me i just cant afford to go through the appeals process on a students budget and it really sounds like the local judges are out to get ya here haha.

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    Regular Member Mainsail's Avatar
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    Izzle wrote:
    I was just skimming through some more OC article and ran across this story of a man in Ellensburg. I am sure that a lot of people here have read this but i wanted to know if i should be relieved because the officers in Ellensburg should definitely know the laws now or should i be concerned because of what they did in the first place and it could happen to me living here in Ellensburg.

    http://fishorman.blogspot.com/2004/06/details-20.html


    It makes me upset that the first court found him guilty im glad the appeals reversed that:

    http://fishorman.blogspot.com/2005/1...-decision.html


    The other thing that bugged me is that he wasn’t issued the citation till AFTER he filled a complaint about how he was treated in Fred Meyer that day. Do you guys think that i am at risk living in Ellensburg and OCing? It also was stated that if they would have tried him under State law and not the city law he might not have gotten off.
    Those links are not allowed. Please post the text.

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    Regular Member just_a_car's Avatar
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    I'm not sure what you're talking about Mainsail, as there's nothing in the forum's rules about "blind links", either you choose to click them or you don't.

    But since I'm a nice guy, I'll post 'em for ya. You asked for it:

    Tuesday, June 01, 2004

    To those that have charge over the public servants involved in the following situation;

    This is a formal complaint against these officers, (one being a county unit). Please do what needs to be done to make corrective actions that will insure your officers stay within their legal authority. Violating anyone’s civil rights without cause is most certainly going to leave a bad taste in citizens’ mouths. When the vast majority of the public is law-abiding citizens, the assumption of guilt is unwarranted. I would hope that other citizens operating inside the law would not have been treated so poorly as on this day.

    Saturday, May 22nd, 2004, Ellensburg, WA

    Typically Ellensburg is windy. Since it wasn’t today, the wife decided it would be nice to take a walk. She would be flying across the nation the next day, so a stop at the bank would be necessary to get cash out for the trip.

    I decided that since it is legal to bear arms in self-defense, today would be a good day to exercise this right. The manner in which I carry was determined by RCW 9.41.050, in which it declares I am a criminal if I choose to conceal my handgun. Without concealment, a number of options for carrying my gun are unavailable. Left with only the option of open carrying, I have decided on a manner that is as close to concealed as legally allowed. I have attached a clip to my firearm so the gun stays inside of my waistband, yet the clip insures the handle remains visible. I carry the gun up front, where I have quicker access and it is less likely to be taken away, (a Chelan officer was killed recently after having his gun taken from him.)

    During our walk, we traveled through downtown Ellensburg, where the Farmers Market was being held. We also stopped by a local business to return a product I had purchased the previous week.

    We then walked into the Washington Mutual bank, located inside of the Ellensburg Fred Meyers. The time was close to 11 am. I filled out the withdrawal slip with my wife standing beside me. As we turned around a young teller we recognized said he could help us at his station. We walked to his station, handing him the withdrawal slip. I swiped my bankcard and entered my pin. I asked for my change in twenties, tens, and a hundred ones.

    He turned and asked the manager if his machine would have enough ones until getting re-supplied. The answer was yes, so the teller pushed some buttons on his machine and it started spitting out my bills. My wife stepped outside the bank, looking at patio furniture directly outside of the banks entrance. When the machine stopped, I reached down and took my bills and said have a nice day.

    I turned towards my wife, as I did the teller stepped around the front of his station because the machine had started spitting out more ones. Apparently, the machine had only dispensed 80 of the ones. I walked back, picked up the rest of my money and thanked him. I then turned around and looked at the patio furniture with my wife. She then picked up a shopping basket from the nearby stack and I proceeded to follow her around the store.

    Approximately ten minutes later I was approached by an Ellensburg police officer. We were in the cosmetics department where my wife was trying to decide on eye shadow. I was doing my best to act interested.

    I saw the officer from the corner of my eye.

    The officer tilted his head looking at my handgun. While he gave me this suspicious look, he kept his right hand near his sidearm. I got a little nervous by his actions.

    I turned towards him.

    He said I see you have a gun on you.

    I replied, yes.

    He then told me why he was stopping me, a 911 call of a man with a gun.

    I quizzically asked, "You just described a legal activity???"

    He then told me he was investigating a 911 call of a man with a gun.This was the point that I had started to become agitated. The officer apparently decided that the legal activity of open carrying was call for further investigation. A 911 call describing a visible legal activity and coming to the scene and finding said legal activity is not grounds for reasonable suspicion that would warrant further investigation. The United States Supreme Court ruled on this issue in Florida vs. J.L., (No. 98-1993), stating:“The reasonable suspicion here at issue requires that a tip be reliable in its assertion of illegality, not just in its tendency to identify a determinate person. This Court also declines to adopt the argument that the standard Terry analysis should be modified to license a "firearm exception," under which a tip alleging an illegal gun would justify a stop and frisk even if the accusation would fail standard pre-search reliability testing.”The tip in my situation being a 911 call which described the legal activity of open carrying. This ruling quite clearly states that just because the “tip” involves a gun, does not give reason for the suspension of an individual’s rights. Since reasonable suspicion has not been met, to continue to perform investigation would be stepping outside of legal authority. I feel that when a public servant decides to violate my rights, becoming agitated is a reasonable response. I gave him another chance to stop his harassment by stating the following:

    It is quite legal for me to be shopping with my wife legally open carrying my handgun.With this statement, I made it painfully obvious that what I was doing was legal. Without a “tip” describing a crime and without reasonable suspicion of a crime, further investigation was unwarranted. Even if the officer was assuming guilt under RCW 9.41.270, the decision for arrest of this law does not require an ID check. He decided against leaving the law-abiding citizen and presumed guilt with his continued detainment and harassment.
    He told me, "You need to calm down sir.”As if the "sir" on that order makes it polite. Now I had a public servant deciding to rule over the citizen. This was upsetting me further.

    I told him, "No, I don't need to calm down. I need to stop being harassed for a legal activity."

    He asked for my ID.

    I asked why I was being investigating for a legal activity?

    He gave the line investigating a 911-call investigation again. And asked if I was refusing to give him ID? I was being pushed further.

    I gave him my ID, telling him I didn't enjoy his company or the harassment. (But at least, now he had my ID, so he could do his "investigating an investigation" garbage and leave my wife and I alone.)

    He looked at me blankly for a couple of seconds, not moving or doing anything.

    I asked him to do his job so he could leave us alone.

    He just looked at me blinking his eyes showing his disgust. Then telling me, you need to calm down sir.

    I told him again, "I DO NOT. You need to do your job and leave me alone."

    I then asked, "Why are you still talking with me instead of doing your job?"

    At which point he glared at me and stepped out of my face and started looking at my id.

    He asked, is this your current address?

    I responded, yes it is.

    He then started running my ID, and stood back for a couple of seconds while doing that.

    My wife and I chatted briefly then he stepped forward again and started with his opinion.

    I said, "Why am I being harassed for a legal activity?"

    He told me the investigating an investigation line again. And told me once again I needed to calm down and was making a scene.

    I told him I did not need to calm down. He needed to stop harassing me and leave my wife and I alone.

    At this point he took my gun, and called out the "code 1."

    I said, "Code 1? What do you need a code one for? 5 officer's will be here in 2 minutes and THEN there will be a scene."

    He told me he had only called for one additional unit.

    I knew better and told him, "5 officers! Way to increase the level."

    He stepped back and got the report back on me being legal.

    I chatted with my wife. Brave soul she is... she was still checking out make-up.Officers came from everywhere. (I would like to say 4 more, but I never actually stopped to count, plus I think one left early.) The officer's all huddle up and the initial officer started relaying to them what a bad boy I had been. As I recall upon them breaking up their huddle, one quickly left saying something about needing to do some other paperwork.

    The initial officer and others left to round up Fred Meyer managers in an attempt to get me removed from the store for open carrying.Now I had at least 4 officers, (one being a county unit), all of which didn’t care about reasonable suspicion and just wanted to lord it over on someone that wasn’t “friendly enough” towards their continual investigation towards the legal activity of open carrying. Since the initial officer assumed guilt and had already ran my ID, they in fact knew I was perfectly legal to do what I was doing yet still continued their detainment. Four public servants acting in violation of law was making me very upset.

    One officer stayed with the wife and I, announcing his presence with line, "you need to calm down sir." He said this over the top of the discussion of law I was having with my wife.

    I told him, “I did not ask for your opinion.”

    He said, "well, I'm giving it to you anyway."

    I let him talk with my wife. His first comment to her was. Do you know this man?

    She said, yes, he is my husband.

    He then said, what is his problem?

    This is where she made the statement to the effect that people have been brainwashed against seeing a gun and open carrying.

    I had a small conversation with this officer as well, him telling me how he always carrys, (concealed), even when off duty. But, he didn't need a CPL, (Concealed Pistol License). He also said open carrying was legal, but what the officers were doing was not harassment.

    I told him how I had gone through all my life not realizing any citizens were actually carrying handguns, and being ignorant of that I might very well have voted to ban them all.

    He asked if I had a conceal carry permit.

    I told him I didn't need one for what I was doing.

    He asked again, if I had the permit.

    I said, no, I do not.

    While getting grilled by him I watched as numerous Fred Meyer's managers came over, stood by officers and looked at me. They then walked away from the group of officers, obviously deciding against having me removed, (one of the managers, looking and smiling at me).

    The officers re-huddled and upon breaking, one of them went off to the bank, coming back with the manager. The officers huddled with the bank manager for a minute and then the bank manager approached me.

    The bank manager started by saying how I was always polite in his bank and enjoyed me as a customer. He then told me he was the victim of a robbery and that there was a 17-year-old teller that didn't know what to think when seeing the gun. He told me he believed that the corporate office had rules that concealed was all right, but that corporate security had rules against open carry, so he thought. He was not at all sure about corporate policy on this matter, either. This is where I felt officers prodded him in order to get me banned from open carrying. (Plus, after talking with Washington Mutual Corporate office they said they have no such policy).

    And I know that Fred Meyer's managers were prodded. That happened directly in front of me, with the managers deciding against banning me from open carrying. That must be what a police line up feels like.Well, the bank manager left. The officers huddled up one more time, then the initial officer handed me my gun back, not saying anything to me, quickly turning and walking away. Yet only minutes before he had determined I was too "not calm" to carry my gun. One officer in the group did say have a nice day and I replied to all of them the same.
    Second Link:

    The Actual Decision (The bolding is mine, the italic is the judge's)



    SUPERIOR COURT OF WASHINGTON FOR KITTITAS COUNTY
    FISHORMAN,
    Appellant,
    Vs.
    CITY OF ELLENSBURG,
    Respondent,

    No. 05-1-00161-4
    MEMORANDUM DECISION

    PROCEEDINGS

    A Lower Kittitas County District Court jury found Appellant guilty of one count of unlawful display of a weapon in violation of Ellensburg City Code (ECC) 7.32.08. Appellant seeks reversal of the conviction on the grounds that ECC 7.32.08 is preempted by RCW 9.41.290. Oral argument occurred on December 5, 2005.


    DISCUSSION
    1. Standard of Review. {Insert legal paragraph here about what a review can and cannot pass judgment on.…}

    2. Relevant Facts. The facts of this matter are not complicated. On May 22, 2004 Appellant entered the Washington Mutual Bank located within the Fred Meyer store located within the city limits of Ellensburg, Kittitas County, Washington. While in the bank and in the Fred Meyer store Appellant was carrying a 1911-style .45 caliber pistol in the waistband of his pants with the hammer cocked. Law enforcement was summoned and Appellant was ultimately charged with one violation of Ellensburg City Code (ECC) 7.32.08. On March 3, 2005 the trial court denied Appellant’s motion to dismiss the charge on the grounds that RCW 9.41.290 preempted ECC 7.32.08. A jury convicted Appellant as charged on May 6, 2005. On June 2, 2005 Appellant was sentenced to 90 days confinement with 90 days suspended; a $500 fine with $250 suspended; and 12 months of unsupervised probation.

    3. Legal Issues on Appeal. Has RCW 9.41.290 preempted ECC 7.32.08?
    4. Analysis. Appellant assigns two errors to the proceedings below: (1) that the trial court “erred in denying the defendant’s motion to dismiss” and (2) that the trial court “erred in allowing Jury Instruction No. 5.” As both assignments of error turn on the relationship between RCW 9.41.290 and ECC 7.32.08, a description of both is appropriate.
    RCW 9.41.290 is entitled “State preemption” and states in pertinent part:
    “Cities… may enact only those laws and ordinances relating to firearms that are specifically authorized by state law, as in RCW 9.41.300, and are consistent with this chapter… Local laws and ordinances that are inconsistent with, more restrictive than, or exceed the requirements of state law shall not be enacted and are preempted and repealed… (emphasis added).
    RCW 9.41.300 is entitled “Weapons prohibited in certain places – Local laws and ordinances – Exceptions – Penalty” and states in pertinent part:
    (2) Cities… may enact laws and ordinances:
    (a) Restricting the discharge of firearms in any portion of their respective jurisdictions…
    (b) Restricting the possession of firearms in any stadium or convention center…
    (3)(a) Cities… may enact ordinances restricting the areas… in which firearms may be sold…
    (3)(b) Cities… may restrict the location of a business selling firearms to not less than five hundred feet from primary or secondary school grounds…
    Accordingly, from the plain language of RCW 9.41.290 and 300, cities may only enact laws and ordinances restricting the discharge of firearms, restricting the possession of firearms in any stadium or convention center, or restricting the location of where firearms may be sold. Other laws “shall not be enacted and are preempted and repealed.” RCW 9.41.290
    ECC 7.32.08 is entitled “Making, Selling, Concealing Weapons” and states in pertinent part:
    “It is unlawful for any person to… carry… any… pistol… in a manner, under circumstances, and at a time or place that either manifests an intent to intimidate another or that warrants alarm for the safety of other persons…”
    Since this ordinance regulates the manner in which a person may carry a pistol, and since legislature has clearly prohibited cities from regulating this conduct, this ordinance is “repealed” and has no force and effect. RCW 9.41.290; RCW 9.41.300. Appellant’s conviction must therefore be reversed.
    The parties spend much time in their briefs addressing whether ECC 7.32.08 is “inconsistent with, more restrictive than, or exceed[s] the requirements of” RCW 9.41.270. Although the court’s decision above is determinative, this issue merits discussion as well.
    RCW 9.41.270 is entitled “Weapons apparently capable of producing bodily harm – Unlawful carrying or handling – Penalty – Exceptions” and states in pertinent part:
    “(1) It shall be unlawful for any person to carry… any firearm… 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…”
    (3) Subsection (1) of this section shall not apply to or affect the following:
    (a) Any act committed by a person while in his or her place of abode or fixed place of business;
    (b) Any person who by virtue of his or her office or public employment is vested by law with a duty to preserve public safety, maintain public order, or to make arrests for offenses, while in the performance of such duty;
    (c) Any person acting for the purpose of protecting himself or herself against the use of presently threatened unlawful force by another, or for the purpose of protecting another against the use of such unlawful force by a third person;
    (d) Any person making or assisting in making a lawful arrest for the commission of a felony; or
    (e) Any person engaged in military activities sponsored by the federal or state governments.”
    Since the city ordinance does not contain the limitations set forth in RCW 9.41.270 (3), the language used in the ordinance regulates more people and more situations than the statute and thus the ordinance is inconsistent with, more restrictive than, and exceeds the requirements of state law. (NOTE FROM BOTTOM OF PAGE: “Note also RCW 9.41.270 restricts weapons “at a time and place” while ECC 7.32.08 restricts weapons “at a time or place.”)
    The City argues that none of the limitations described in RCW 9.41.270(3)(a) - (e) apply to Appellant’s conduct, and since the core conduct prohibited by the ordinance is the same as the conduct regulated by RCW 9.41.270, the conviction should be affirmed. That argument, although factually correct in this case, does not aid the court in the determination of whether the language of the ordinance is inconsistent with the language of RCW 9.41.270. “RCW 9.41.270 was enacted to reform that situation in which counties, cities, and towns could each enact conflicting criminal codes regulating the general public’s possession of firearms.” Cherry v. Metro Seattle, 116 Wn.2d 794, 801 (1991) (emphasis added). The legislature sought “to eliminate a multiplicity of local laws relating to firearms and to advance uniformity in criminal firearms regulation.” Id. [NOTE FROM BOTTOM OF PAGE: ECC 7.32.08 was enacted prior to the current version of RCW 9.41.290, which appears to have been an emphatic legislative response to the court’s decision in Seattle v. Ballsmider, 71 Wn. App. 159 (1993).]
    In summary, the legislature, through RCW 9.41.290, has limited the scope of municipal regulation of firearms to those situations described in RCW 9.41.300. Since ECC 7.32.08 attempts to regulate activities outside those narrowly defined areas, ECC 7.32.08 has been repealed by RCW 9.41.290. Even if the plain language of RCW 9.41.290 should be ignored to allow a city to pass an ordinance restricting the carrying of firearms, any such ordinance would still be required to be consistent on its face with the language of RCW 9.41.270. Since the language of ECC 7.32.08 is inconsistent with the language of RCW 9.41.270, the ordinance has been repealed.
    Appellant’s conviction should be reversed and dismissed. The case shall be remanded for proceedings consistent with this decision.
    DATED: December 14, 2005
    JUDGE Scott Sparks

    (NOTE FROM BOTTOM OF PAGE: 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.)



    [size=FishOrMan's After Action Report: Judge Sparks put in a great deal of effort into attempting to understand the many complex gun laws, (which I thank him for, ][/size][size=Thank YOU!) He took a slightly different take then expected in his decision -- ruling cities cannot make any][/size] law regulating the carrying of firearms, (unless it fits the narrowly defined exceptions chapter 9.41.300.) This was a surprise for me, but actually makes sense if the preemption law is read in a slightly different manner. It was also nice to see that even when reading the preemption law the way I had understood it to be, the city code would still have been repealed.

    [size=As for the judge's final footnote warning: My handgun will now always be carried outside the waistband and the hammer will be down, Hammer DOWN! Not a very smart way to carry a 1911, but the law is the law and I wouldn't want to scare any sheeple before I blow my leg off). Sorry, your honor. But if you knew 1911s you would understand the term, "cocked and locked," (And if an expert witness from a gun rights group had showed up, the hammer being back wouldn't be allowed to be used against a gun owner in court records where a precedent could have been set. Yet, an idiotic officer, paid by the state, is allowed to get on the stand and say that is an "alarming" way to carry a 1911. You know... because they are "gun experts" and all. Cluebat anyone?)
    ][/size]
    [size=Seriously though, I was twice offered the "chance" for a plea deal in this case. Without the SAF making the slightest move to stand up for gun rights in my case, I came close to taking the deal. But, due to some very insightful information early on from fellow Washington gun rights activist, Lonnie Wilson, I turned this plea deal down TWICE. The information from Mr. Wilson caused me to look into the law I was charged with further and see it's many failures. With that belief, I put little effort into the actual trial. (In fact, the day I showed up for trial I was very surprised it even took place since discovery by the prosecution was delayed until just as I arrived that morning). So, I certainly didn't put a full effort into the case, heck, that is obvious, I fought it Pro se.
    ][/size]
    [size=As for actually carrying a handgun again; I cannot think of anyway the state currently allows me to bear arms that doesn't bring at least some "threat of prosecution." Either I take that to mean the RIGHT to bear arms is dead; Or I willingly turn a right into a priviledge; Or I live my life threatened by the state. Really though... aren't we all?][/size]
    B.S. Chemistry UofWA '09
    KF7GEA

  8. #8
    Regular Member Mainsail's Avatar
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    just_a_car wrote:
    I'm not sure what you're talking about Mainsail, as there's nothing in the forum's rules about "blind links", either you choose to click them or you don't.

    But since I'm a nice guy, I'll post 'em for ya. You asked for it:
    Comm Squadron will give me a nasty-gram for trying to hit a blog.

    Thanks!

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