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Thread: Open carry = disorderly conduct?

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    Hey guys, I know I've been away for a while, but I've basically been lurking. I had something come up recently that I thought you should know about, and I need some legal advice.

    My CCDW instructor at Shooters Choice in Dover said something that was kind of unsettling to me. While the instructor is knowledgeable in the area of firearms and law enforcement, he is not a lawyer. I'm glad I am taking the course because of the professionalism and experience this gentleman has, but some of his opines are a bit troublesome.

    He said in class on monday, after I brought up DE being an OC state that OC while not illegal, was not wise.

    "Open carry in the state of Delaware, while legal, is not wise. You have the potential for someone to become scared of you because you have a weapon, and you can be arrested under the disorderly conduct code for causing undo alarm."

    I didn't think he was right, but I didn't want to argue with him. I went online and found the disorderly conduct code of Delaware, and there are two mentions (and it has a stipulation on it) about undo alarm.

    Delaware Code 1301. Disorderly Conduct

    Section 1: The person intentionally causes public inconvenience, annoyance or alamr to any other person, or creats a risk thereof by: (sections 1, paraa - g).

    Section 2: The person engages with at least 1 other person in a course of disorderly conduct as defined in paragraph 1 of this section which is likely to cause substantial harm or serious inconvenience, annoyance or alarm, and refuses or knowlingly fails to obey an order to disperse made by a peace officer to the participants.

    So, if a person has a freak attack about me carrying a gun, and the cops show up, am I causing undo alarm or is that person? If I am completely within the letter of the law, minding my own business, who is at fault?

    I need to know what the legal decisions on this have been. Or someone could give me an address for the AG office and I will just write them.

    Thanks guys,

    Gwee

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    Giustiniani wrote:
    Hey guys, I know I've been away for a while, but I've basically been lurking. I had something come up recently that I thought you should know about, and I need some legal advice.

    My CCDW instructor at Shooters Choice in Dover said something that was kind of unsettling to me. While the instructor is knowledgeable in the area of firearms and law enforcement, he is not a lawyer. I'm glad I am taking the course because of the professionalism and experience this gentleman has, but some of his opines are a bit troublesome.

    He said in class on monday, after I brought up DE being an OC state that OC while not illegal, was not wise.

    "Open carry in the state of Delaware, while legal, is not wise. You have the potential for someone to become scared of you because you have a weapon, and you can be arrested under the disorderly conduct code for causing undo alarm."

    I didn't think he was right, but I didn't want to argue with him. I went online and found the disorderly conduct code of Delaware, and there are two mentions (and it has a stipulation on it) about undo alarm.

    Delaware Code 1301. Disorderly Conduct

    Section 1: The person intentionally causes public inconvenience, annoyance or alamr to any other person, or creats a risk thereof by: (sections 1, paraa - g).

    Section 2: The person engages with at least 1 other person in a course of disorderly conduct as defined in paragraph 1 of this section which is likely to cause substantial harm or serious inconvenience, annoyance or alarm, and refuses or knowlingly fails to obey an order to disperse made by a peace officer to the participants.

    So, if a person has a freak attack about me carrying a gun, and the cops show up, am I causing undo alarm or is that person? If I am completely within the letter of the law, minding my own business, who is at fault?

    I need to know what the legal decisions on this have been. Or someone could give me an address for the AG office and I will just write them.

    Thanks guys,

    Gwee
    This has been discussed in general, however I can find no Delaware-specific cases. Disorderly conduct requires intent. Not just intent to do something that may cause alarm, but intent to cause alarm by doing something. In Washington State on the other side of the country, courts have repeatedly held that OC, by and of itself, is no reasonable cause for alarm and therefore the simple act of OC cannot constitute disorderly conduct even if someone ends up being alarmed.

    IANAL, and neither is the next LEO you will meet. There may be a case law I missed, and the officer's job is not to know every law, but to look out for possible crimes and investigate to either confirm or refute suspicion. Either way if you take my word or the LEO's as if it were God's own you will probably be missing something. If you are confronted by an LEO, the first 10 seconds set the tone for the rest of the encounter; you will know his intentions and he will know your level of cooperation. Reactions run the spectrum; if you are approached by a polite courteous officer, the conversation has a very good chance to end well as long as you reciprocate. If you are ordered to the ground with your hands behind your head in the middle of a mall, there's not much can be done to improve the situation for you in the short term, but avoid degrading it by playing lawyer.

    General rules: Respond politely and courteously to any officer's questions or requests, HOWEVER,get afeel for the situation (is the officer simply verifying you can legally own that weapon, or is hefishing for any reason to get this paranoid gun-hugger out of his mall?) and do not voluntarily give up information, your sidearm or any other personal possession unless it is required by law (such asrequired by a Stop And ID statute)or it cannot possibly be incriminatory (such as your name). If you are searched or property taken, do not resist,butlet him know you are not consenting to the search or to any seizure of your personal effects.

    If the officer is trying to infer that you cannot leave his presence until he's exhausted his options, ask politely if you are being detained, and on suspicion of what crime. If you are being detained, there'snot much you can do except obey the officer until he decides to turn you loose or arrest you (either way, an official complaint is due to his supervisor). If he says you are not being detained, tell him that you would like to leave, wish him a good day, and walk away. If he stops you, then you are being detained, and if he cannot tell you what crime he suspects you of committing, it's illegal and Mr. Nice Guy should defer to Mr. "I want to talk to your supervisor immediately please".



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    Regular Member Fallschirmjäger's Avatar
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    I don't see any exemption for those required to carry a firearm by departmental regulations, so if any officer gives you the hassle, see if you can get Them cited for the same "" crime "". I'm pretty sure they carry a firearm and for the exact same reason us mere civvy-sillians carry; to protect themselves and others.



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    he is the states firearms instructor instuctor.
    as well as a x cop.

    as with any encounter remember that they are not there to interput the law. they are there to arrest and let someone else figure the legal stuff out.

    im going to guess just with any LEO encounter its just who you talk to if it really is disorderly or not.

    just my 2 cents.

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    While the above comments are helpful, they do not answer the question. I do appreciate the insight, and I understand I have to assert my rights in order to protect them.

    I need to know legally how this is interpreted in Delaware. I do not forsee any problems with open carry in the future, many of us here in Delaware have been doing it for some time.

    Sean, while I appreciate you stating the obvious facts, the point is that he is not a lawyer, judge, or paralegal. In fact I said:

    While the instructor is knowledgeable in the area of firearms and law enforcement, he is not a lawyer. I'm glad I am taking the course because of the professionalism and experience this gentleman has...
    I have no derision toward him, I just was unsettled by that, and some of the other things he has said that I did not mention. I will still recommend this class and go to him for professional opinion and experience, but not for an interpretation/ruling on the law.

    So, I will write to the AG office next week and let you all know how it goes.

    I still advocate open carry, and it is my understanding because you have to be intentionally causing a disruption that the worst someone could ask me to do is to leave the premesis lest I be cited for trespass.

    Thanks guys,

    Gwee

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    Did you accidentally wear a gun? No? You wore it intentionally? Then you intentionally scared people. How hard is that to understand? Openly carrying firearms is just not acceptable. No matter how hard you try to fight it, you're losing. Sorry.

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    remember the same bill of rights that lets you to talk like a jack ass also grants us the right to keep and BEAR arms....

    the way you talk scares me.. is that an alarm?


    buisnesscards please tell me your joking!



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    I wish I was joking. From all my experiences and reading the experiences of others on this board, I'm starting to be convinced that OC is just not acceptable and that's just how it is going to be. It's unfortunate, but people are just so squeemish around guns, that nothing we do will change it.

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    I'm pretty sure that is an extreme stretch of the term.

    Yes I had intent to carry the gun. I carried it intentionally. But the reason behind the intent was the protection of my person and posessions, not to cause alarm.

    You could look at this like a car accident. You get in your car and drive down the road. You intend to get to work, drive safely, and obey the law. But, unfortunately you get in a car accident on the way to work, and it rattles you and the other driver, but doesn't cause an injury. Others are annoyed, and there is a public inconvience. But it was an accident.

    Just like if some one was extremely anti-gun, and they saw my gun. My intention was to carry the gun to protect myself, do it safely, and obey the law while carrying. But if someone else becomes annoyed, yet I have not made threatening acts, speech, or gestures, how can this be misconstrued as disorderly (or even violent)? It also was accidental.

    Obviously you won't be swayed, and while your point is not necessarily flawed, it is not the answer I was looking for. I was looking for a LEGAL interpretation of the disorderly conduct code.

    Thanks anyway.

    Gwee




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    BusinessCards wrote:
    Did you accidentally wear a gun? No? You wore it intentionally? Then you intentionally scared people. How hard is that to understand? Openly carrying firearms is just not acceptable. No matter how hard you try to fight it, you're losing. Sorry.


    WTF??? :shock:

    This kind of response on a forum like OPEN CARRY dot org??? Just joined a few days ago and posts something like this?

    Hmmmm...... I'm thinking of a word that begins w/ a "t" and ends in a circular motion....



    As for disorderly conduct, sure, the police can try to charge you with that. That's all they have in their little arsenal of charges to pick from w/ regards to OC.

    And the guy was an ex-cop. Most cops don't like to see citizens OCing. Most will tell you to get a concealed carry permit and hide it. THEY just don't want to see it, either. Out of sight, and out of mind I guess....

    Personally, I've been surrounded by cops while I was OCing. Most assumed I was with a particular department. But when I told them I was a citizen exercisaing my right to self-defense, they just nodded their heads. They don't have to LIKE it. They just have to REALIZE it's perfectly lawful in Delaware.

    The lawyers would have to prove that you had INTENT (Pre-planned) to make someone upset just by you wearing a gun. If that's the case, then they should be afraid of every law enforcement officer since they ALL OC their guns. But there's the uniform. Yeah, so I'm being discriminated against because of howI dress? That argument sounds silly, as does someone feeling "scared" at the sight of a gun being safely and securely holstered and not being touched by its owner, who is not showing any aggressive actions w/ said gun....

    My right to carry and self-protection does NOT get trumped by someone else's right to feel "safe" when they walk outside and just see my gun.


    Dave
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    Delaware Open Carry

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    Hi Gwee



    please send me a PM



    sprat

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    dave_in_delaware wrote:

    ...they should be afraid of every law enforcement officer since they ALL OC their guns. But there's the uniform. Yeah, so I'm being discriminated against because of howI dress? That argument sounds silly, as does someone feeling "scared" at the sight of a gun being safely and securely holstered and not being touched by its owner, who is not showing any aggressive actions w/ said gun....
    Thank you, thats is my point also.

    Here is a small update. Last night the instructor said that if someone is offended by you wearing your weapon, you can be arrested/charged/detained/weapon taken.

    Personally I find this argument ridiculous.

    He was telling the class that there was an incident where an EMT was wearing a pistol openly, and his partner didn't notice it until a while into their shift, and she was offended. She filed complaints, and then he said something about a lawsuit.

    Offended?! I might be offended by an ugly car. It can be used as a dangerous weapon or a defensive instrument. I might be offended by someone with big powerful hands, they might be used to choke someone or to lift heavy equipment. What kind of a ridiculous argument is this?

    People have the right to their opinions, and that includes being offended. But this is does not mean that you can infringe upon my rights because your feelings are hurt, or you are uncomfortable. This is BS imo. But what do I know?

    Gwee


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    Regular Member Sonora Rebel's Avatar
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    There is no Contitutionally recognized Right not to be offended. The 2A however... is a bonifide recognition of a legitimate 'Right'. If you've got that piece holstered... and going about your business... no offense was intended. Perception of an imaginary threat won't cut it. Neither does "I'm afraid of guns." The person offended can vacate the area... That's their option.

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    Here is another point. The instructor tried to apply OC to section F of the disorderly conduct code:

    f. Creating a hazardous or physically offensive condition which serves no legitimate purpose; or
    Does this seem like a stretch to anyone else, if applied to my above posts?

    Gwee

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    Regular Member dave_in_delaware's Avatar
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    I think self defense (personal protection)and the right to not getkilled by some punk is a legitimate purpose.

    Besides, someone seeing a gun doesn't create a physically offensive condition - it's all mental and emotional to them. Not physical.
    Dave
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    Exercising a Constitutional RIGHTIS an ultimatelegitimate purpose!

    Where'd your 'instructor' get his legaleze info... from a box of Cracker Jacks? This is what happens when ya border Maryland... Yer too close to MD TV stations 'n MD influence. For all you know... the 'alarmed' person is a Marylander... I get that same panicky look from Commieforians here.

    Root cause being... people cannot diferentiate between Rights and Priveledges. That difference was blurred long ago by nearly everybody they ever rec'd their information from. The talkin' heads on TV reenforce this misconception daily. It's either ignorance on their part... or deliberate disinformation. I can recall teachers in High School imparting the idea that Rights areGRANTED by the Constitution vie the Government. Totally WRONG! Rights are Recognized by the Constitution and Protected by the Government. These are the 'Certain Inalienable Rights' Jefferson penned. Free people are born with certain Rights. Self Defense is one of those.Cicero argued that before the Roman Senate in a case of self defense 2083 years ago (and won). Some factions ofGovernment... and it's agents however... continuously seek to deny citizens the 'MEANS' (Tools) of self defense in one way or another....

    SCJ Scalia's Legal Opinion in the recent Heller case put to rest the idea (forever) that only militia had the Right to bear arms. Further... "The Second Amedment applies prima facie to all instruments that constitute bearable arms. The very text of the Second Amendment implicitly recognizes the pre-existence of the right and declares only that it ‘shall not be infringed’.”: (Scalia) All instuments... swords, knives... poleaxes... whatever. " Recognizes pre-existance of the right..." Not granted... or something 'given'. A Right not execised is a Right lost.

    "Laws that forbid the carrying of arms... disarm only those who are neither inclined nor determined to commit crimes... Such laws make things worse for the assaulted and better for the assailants; they serve rather to encourage than to prevent homicides, for an unarmed man may be attacked with greater confidence than an armed man." - Thomas Jefferson.paraphrasing Ceaser Beccria.

    "...arms...discourage and keep the invader and plunderer in awe, and preserve order in the world as well as property.... Horrid mischief would ensue were [the law-abiding] deprived of the use of them." - Thomas Paine


    “If violent crime is to be curbed it is only the intended victim who can do it. The felon does not fear the police, and he fears neither judge nor jury. Therefore, what he must be taught to fear is the victim." - Jeff Cooper, the father of modern combat hand gunning.



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    BusinessCards wrote:
    It's unfortunate, but people are just so squeemish around guns, that nothing we do will change it.
    You have no right to use that pronoun here. Outside of your opinion being completely trollish, it's also completely WRONG.

    In order for this crime to take place there needs to be concurrence, that is, a criminal act (actus reus) and a criminal intent (mens rea) taking place at the same time. Disorderly conduct is not a strict liability crime -- if you don't have the intent, you're not guilty of the offense.

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    Regular Member Sonora Rebel's Avatar
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    Squeemish? It's called 'Hoplophobia'... fear of firearms. People are afraid of all sorts of things...Constitutional rights are not trumped by somebody's personal phobia. This is where emotional response by LEO's to somebody's imagined fears come to bear.

    You scared 'em... therefore you must have commited some offense. They forget 'intent'. They disregard 'law'. They play the hero and you're the bad guy. That may be human nature... but it ain't Constitutional... and therefore illegal. You have a 'gun'... as a civilian... therefore it's assumed you must be up to no good.

    The media and politicians re-enforce that mindset daily. OC is becoming increasing 'legal' again (tho it never was illegal under the 2A...) all over the US... and there's not a peep from the MSM. Not even 'right-wing talk radio'... 'cept a brief mention by Laura Ingram. It's funny how 'Gay Marriage' legislation is all over the news... as is Roe vs Wade near daily... but RTK&BA is treated like some dirty little secret. 'Somethin's wrong with that picture.

    "An armed society is a polite society": (Robert A. Heinlein) I'm all for that.

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    If the cops don't like people carrying openly, then they need to STOP opposing repeal of concealed carry licensing requirements.

  20. #20
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    Giustiniani

    I used to know the fellas that run that store, they were always helpful/knowlegable/and very fair priced on anything I needed. but just because someone tells me that I may alarm a fellow citizen because of my choice to OC wouldn't deter me from carrying unless local laws firbid it, Dover being the Capitol might have a local ordinance,But don't opt out of OC just out of respect for the fella that is teaching your class.. He makes more money from you and other patrons after you take hisCCclass



    You know what causes me ALARM?? some punked out dude with so many piercings that he looks like he fell into a fishing tackle box, with a 12" mohawk dyed hot pink.. now thats worth a call to the authorities to get him out of the environment that I choose to take my family to..



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    I think I saw that guy at the Mall of New Hampshire.

    I find someone decked out like that far less alarming, since he's obviously not concerned with someone getting a clear and unambiguous physical description, and is thus not particularly likely to commit a confrontational crime.

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