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Thread: Magna Times article confirms legality of open carry in Utah

  1. #1
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    http://www.magnanewspapers.com/index...9&Itemid=1





    “Open carry”: what does the law actually say?






    Written by Colin B. Douglas

    Thursday, 26 June 2008

    Utah law does not explicitly permit open carry of firearms, but it also does not prohibit it.
    By Colin B. Douglas
    News Editor

    Utah law does not explicitly permit open carry of firearms, but it also does not prohibit it.
    The issue came before the West Valley City Council on June 17 when some citizens spoke in defense of their legal right to carry firearms openly.
    Without claiming to be giving legal advice, the understanding we have come to by a perusal of the Utah Code and with explanations from law enforcement officers is this: Utah law does not prohibit a person with a concealed weapons permit from carrying a loaded weapon openly, and it does not prohibit any person (with certain specified exceptions, such as convicted felons) from carrying an unloaded weapon openly. To get to that interpretation of the law, it is necessary to pay attention to what the law does not say, as well as to what it says.
    Utah Code 76-10-505 says this:
    “Carrying loaded firearm in vehicle or on street.
    (1) Unless otherwise authorized by law, a person may not carry a loaded firearm:
    (a) in or on a vehicle;
    (b) on any public street; or
    (c) in a posted prohibited area.
    (2) A violation of this section is a class B misdemeanor.”
    Key words there are “unless otherwise authorized by law”: a person with a concealed-carry permit may carry a loaded firearm in a vehicle or on the street; and the law does not differentiate between concealed and open carry.
    An ambiguity in the concealed-carry law was cleared up in the most recent legislative session by HB473, which included language to read: “Concealed firearm permit" means a permit issued pursuant to Section 53-5-704 that permits, but does not require, concealment of the firearm on the permittee.” As to persons who do not hold concealed-carry permits, Utah Code 76-10-104 says:
    “Carrying concealed dangerous weapon — Penalties.
    (1) Except as provided in Section 76-10-503 and in Subsections (2) and (3): (b) a person without a valid concealed firearm permit who carries a concealed dangerous weapon which is a firearm and that contains no ammunition is guilty of a class B misdemeanor, but if the firearm contains ammunition the person is guilty of a class A misdemeanor.”
    Implied there, though not stated explicitly, is that if the weapon is not concealed, the person is in the clear.
    In the case of the “person without a valid concealed firearm permit,” the fact that the weapon must be unloaded (“contains no ammunition”) is important. The definition of “loaded” is as follows in 76-10-502:
    “When weapon deemed loaded.
    (1) For the purpose of this chapter, any pistol, revolver, shotgun, rifle, or other weapon described in this part shall be deemed to be loaded when there is an unexpended cartridge, shell, or projectile in the firing position.
    (2) Pistols and revolvers shall also be deemed to be loaded when an unexpended cartridge, shell, or projectile is in a position whereby the manual operation of any mechanism once would cause the unexpended cartridge, shell, or projectile to be fired.
    (3) A muzzle loading firearm shall be deemed to be loaded when it is capped or primed and has a powder charge and ball or shot in the barrel or cylinders.”
    Law enforcement officers have told this reporter that what that means in practice is that a semiautomatic pistol is considered unloaded if there is no round in the chamber; though it may carry a full, seated magazine. A revolver is considered unloaded if the hammer rests on an empty chamber and the next chamber also is empty.
    An open carrier might run into a gray area with the issue of “brandishing” a weapon. 76-10-506 says this:
    “Threatening with or using dangerous weapon in fight or quarrel.
    Every person, except those persons described in Section 76-10-503, who, not in necessary self defense in the presence of two or more persons, draws or exhibits any dangerous weapon in an angry and threatening manner or unlawfully uses the same in any fight or quarrel is guilty of a class A misdemeanor.”
    Capt. Teri Sommers, commander of the Magan-Kearns Prectinct of the Sheriff’s Department, says that if a deputy observed a person carrying openly, the person “would probably be asked about his purpose and intent.”
    Is your openly carried pistol sitting in its holster “in an angry and threatening manner”? That just might be in the eye of beholding bystanders and law enforcement officers.


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    Mike wrote:
    [snip]
    An ambiguity in the concealed-carry law was cleared up in the most recent legislative session by HB473, which included language to read: “Concealed firearm permit" means a permit issued pursuant to Section 53-5-704 that permits, but does not require, concealment of the firearm on the permittee.” [SNIP]
    Only one problem... HB 473 did not pass. The anti's got ahold of it and made hostile amendments, so the sponsor and the rest of the legislature killed it...

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    jaredbelch wrote:
    Mike wrote:
    [snip]
    An ambiguity in the concealed-carry law was cleared up in the most recent legislative session by HB473, which included language to read: “Concealed firearm permit" means a permit issued pursuant to Section 53-5-704 that permits, but does not require, concealment of the firearm on the permittee.” [SNIP]
    Only one problem... HB 473 did not pass. The anti's got ahold of it and made hostile amendments, so the sponsor and the rest of the legislature killed it...
    HB 473 may not have passed BUT Utah Attorney General Mark Shurtleff gave his opinion during that setting...

    "


    Shurtleff, M.:
    My opinion on that it is very clear that in Utah you can carry a weapon,


    open, as long as it is unloaded. Meaning, nothing in the chamber, you can have a full


    magazine in it but as long as there is nothing in the chamber. That is what “unloaded” is


    defined as. You don’t have to have a permit. Anybody in this state, if they are of the


    right age to own a weapon-


    Oda, C.:
    And law biding,


    Shurtleff, M.:
    And they’re law biding and meet all of the other requirements, as far as


    mental illness and so forth, then you qualify to carry open unloaded. The question comes


    is to when and if you can carry it open and loaded. The law says that if you get a


    concealed weapon permit then you can conceal it. By the way it is illegal to conceal a


    weapon unless you get the permit. So, you can clearly, one of the exemptions from the


    weapon’s law is that when you get the permit you can conceal it. So you are exempt


    from the weapon’s law that says you can’t conceal it. Secondly, the question comes up


    then, well let’s say you are concealing it, you’re carrying it, it’s loaded, as you would


    expect it to be a concealed weapon and, you know, your jacket comes open and whatever.


    If your jackets you’re now carrying open, are you in violation of the law? And since


    firearm permit, a concealed weapon permit is not defined there has been some confusion


    in some agencies and it has been interpreted differently. My understanding from the


    Department of Public Safety is that they interpret it to mean that, indeed, the law is that if


    you have a concealed weapon permit you are exempt from all weapons laws and you can


    carry it open loaded. But there have been other local jurisdictions who have interpreted it


    otherwise so they’re stopping people and creating a problem. So I think that, my

    recommendation was to clarify it up front. That is the best thing you can do."

  4. #4
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    Thanks Mike,

    AVERY Good Article BTW. Need MANY more of those.

    TJ

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