Open Carry in Wichita -- YES WE CAN

imported post

Not sure why my first post showed up as "test ddd" here goes again:

Sorry to beat a dead horse here, seems it's been discussed quite a bit in the past. Read on though, please, hopefully I'm on to something here.

I think we're all in agreement that Kansas is an open carry state, but local municipalities are allowed to impose their own bans on open carry within their city/county. Wichita, for example, has always been one of those localities that does not allow open carry.

However, after reading the KS statutes regarding open carry, it seems an exception is made to CCH licensees. I'm paraphrasing Chapter 12, Article 16, Section 124 of Kansas Statutes below:

12-16,124. Firearms and ammunition, regulation by city or county, limitations
...
(b) nothing in this section shall:
(1) Prohibit a law enforcement officer, as defined in K.S.A. 22-2202, and amendments thereto, from acting within the scope of such officer’s duties;
(2) Prohibit a city or county from regulating the manner of openly carrying a loaded firearm on one’s person; or in the immediate control of a person, not licensed under the personal and family protection act while on property open to the public

Click to expand...

To me, it seems the law reads that cities and counties are only allowed to regulate "the manner of openly carrying a loaded firearm on one's person" for those persons not licensed under the personal family protection act. So, local ordinances against open carry do not apply to CCH licensees?

BUT WAIT, THERE'S MORE!

Wichita city code seems to support this as well (paraphrased again):

Sec. 5.88.010. Unlawful use of weapons.
(1) Unlawful use of a weapon is knowingly:
(a) Selling, manufacturing, purchasing, possessing or carrying any bludgeon, .....;
(b) Carrying concealed on one's person, or possessing with intent to use the same unlawfully against another, a dagger, dirk, billy, blackjack, slingshot .....;
(c) Carrying unconcealed on one's person or in any vehicle under one's immediate control, with intent to use the same unlawfully against another, a dagger, dirk, billy, blackjack, slingshot .....;
(d) Carrying any pistol, revolver or other firearm concealed on one's person, while on property open to the public, except when on one's land or in one's abode or fixed place of business;
(e) Carrying on one's person any unconcealed, loaded firearm, while on property open to the public, except when on one's land or in one's abode or fixed place of business;
(f) Carrying in any vehicle under one's immediate control, while on property open to the public, any loaded firearm, except when on one's land or in one's abode or fixed place of business;
(g) Carrying in any air, land or water vehicle an unloaded firearm that is not encased in a container which completely encloses the firearm;
.....
6) Subsections 1(d), 1(e), 1(f), and 1(g) shall not apply to any person authorized to carry a concealed firearm pursuant to the Personal and Family Protection Act, K.S.A. 75-7c01 through K.S.A. 75-7c18, and amendments thereto.

Click to expand...

[/quote]Again, here Wichita city code seems to exempt CCH licensees from Subsection 1(e), which covers carrying an unconcealed firearm. I'm trying to find other cities that have also updated their ordinances similarly, but it's long and arduous surfing through city websites trying to find this stuff.

Any thoughts here are appreciated. So far the Wichita LEO's I've spoken to agree with me, but also added "...but i wouldn't try it." Depending on what I hear from others, including the AG's office and Wichita City Manager, I may pursue trying to get some type of ruling on whether or not this interpretation is valid. I'd love to carry open in Wichita but it's not worth being the "guinea pig" and potentially spending a night in jail over it.

imported post

*UPDATE* Here is my first response from the AG's office, inquiring about KS statute 12-16, 124. Sounds like we are a no-go on preemption at the state level for open carry with a CCH license. I don't 100% agree with his interpretation, I think it's a similar debate as to whether the "shall not be infringed" part of the second amendment applies to "the right of the people" or "well-regulated militia." However, being that this comes directly from the AG's Concealed Carry Unit, I imagine a judge's ruling would be the same:

The following information is not an Attorney General opinion but is the opinion of the Concealed Carry Unit – Attorney General opinions have a specific requesting process which must be followed and can be found at the Attorney General’s website http://www.ksag.org.

Bottom line, a CCH licensee is not allowed to open carry anywhere in the state with a CCH license…the license is for concealed carry. The general exemption in 12-16,124 is to allow CCH licensees to transport their firearms in their vehicle (“air, land, or water”) ‘openly’ if desired.

Under subsection (b)(2), the statute reads in two clauses: the first clause allows a city/county to regulate the manner of open carry ‘on one’s person’ (and makes no distinction between CCH licensee and non-licensee) in general; the second clause allows the city/county to regulate open carry of a loaded firearm ‘in the immediate control’ of a person who is not a CCH licensee.

It is the position of the Concealed Carry Unit that subsection (b)(2) is more of a ‘general’ provision giving baseline allowances for cities and counties; meaning, cities and counties, this is what you can do generally. But subsection (b)(4) gets more specific and allows CCH licensees to carry the firearm in any manner when they are transporting the firearm in an “air, land or water vehicle.” Subsection (b)(4) exempts a CCH licensee from the provisions of clause 1 of (b)(2) only when they are transporting the firearm in their vehicle – other than that scenario, a licensee is subject to the same open carry prohibitions as a non-licensee. Subsection (b)(4) and clause 2 of subsection (b)(2) allow a CCH licensee to remove the firearm from off of their person and transport the firearm ‘in [their] immediate control’ in their vehicle even when they are on public property.

Hope this helps – it can get a bit confusing.

Click to expand...

imported post

Interesting find, mortimer. For Wichita, this would mean that the area is a permissive open carry zone - the wording seems clear to me in Wichita's ordinance.

The CCH bill is a little bit more confusing, but if you read into it, it could be separated:

nothing in this section shall:

"(2) Prohibit a city or county from regulating the manner of openly carrying a loaded firearm on one’s person."

and

"[Prohibit a city or county from regulating the display of a firearm] in the immediate control of a person, not licensed under the personal and family protection act while on property open to the public."

It's confusing and it could certainly use more clarification, but my reading is that cities or counties can regulate the practice of open carry on your person, and can regulate the practice within a person's immediate control - that is, not actively carrying, but within reach, only if the person does not have a CCH license.

It would be nice to get the KSAG's opinion on this as opposed to what the concealed carry unit thinks.

imported post

Thinking about it more I agree with the AG CC unit's response. I don't know much "legalese" but I do know the semicolon in (b)(2) clearly separates the two phrases, meaining the "not licensed under the personal and family protection act" only applies to the second clause.

I'm going to push the issue with the Wichita city attourney's office pretty hard, unless they can cite some other ordinance somewhere that's more clear on specifically forbidding open carry. I'm certain this was not their intent, they didn't mean to allow open carry within the city, but the verbage seems pretty clear to me that CCH licensees may carry unconcealed.

If they tell me it's still not allowed, which I'm pretty sure they will, I may try and get a judge's ruling. Although, they may recognize this as a mistake as soon as I point it out and rush in a new ordinance correcting it. Anyone know any pro-2A attourneys in town?

imported post

I'm a ways north of you and I don't know many lawyers, so I think you're on your own there.

My understanding is that Wichita was one of the cities that made a big fuss over the original concealed carry bill that would of had statewide open carry, but I never saw the original bill so I'm not sure whether or not that's true.

imported post

You're right, the original bill included full preemption for open carry in KS, unfortunately Queen Sebelius vetoed it. I wouldn't be surprised if Wichita was one of the big whiners about it, based on their primarily liberal stance on stuff in the past.

Hell, Nola Foulston even denied prosecutors in Sedgwick Countythe ability to carry concealed in the courtroom, even after the state passed a law saying it was OK. No preemption with that one either.

imported post

The story I heard was Sebelius vetoed it on the grounds of towing the party line, then open carry got thrown out because a number of police departments in the urban areas complained that it would give criminals a free pass on crimes (I guess actually committing a crime wasn't good enough for these departments).

Anyways, maybe there's hope in the future. We may not have statewide preemption but a lot of places are no longer banning it.

imported post

permit holders are preempted re vehicles to open carry - that's it; otherwise, if locality bans OC, no OC in that town.

imported post

The preemption statute says, localities are not prohibited from regulating the manner of openly carrying a loaded firearm on one’s person. I thought SCOTUS made a distinction between regulating and regulations that in practice prohibit.

imported post

lockman wrote:

The preemption statute says, localities are not prohibited from regulating the manner of openly carrying a loaded firearm on one’s person. I thought SCOTUS made a distinction between regulating and regulations that in practice prohibit.

Click to expand...

Mike wrote:

permit holders are preempted re vehicles to open carry - that's it; otherwise, if locality bans OC, no OC in that town.

Click to expand...

I'm not arguing this, I think it's clear. Localities still have every right to ban OC within their jurisdiction. The question here is whether Wichita city code allows open carry for CCH permit holders.

I spoke with Patricia at the KSRAfor awhile today about this. I will be tactfully contacting the city attourney's office in the next few days to get an official opinion on this interpretation of the city code. My hopes are not high, but maybe they'll be receptive to the idea now that CCH has been around awhile, with ZERO incidents involving CCH licensees.

imported post

mortimer wrote:

I'm not arguing this, I think it's clear. Localities still have every right to ban OC within their jurisdiction.

Click to expand...

No they don't... Any such 'law' is unconstitutional and denial of a civil right (2A/14A) under the USCis no 'right' at all.It's tyranny! The only authority a representative form of government has is bestowed upon them by the governed. You have rights... government does not. Government has 'authority'.

imported post

While I do agree with you, not a fight I'm willing to take up with the City of Wichita or the the state for that matter. Not now at least.

One step at a time. Hopefully we can get Wichita residents w/ CCH to open carry for the time being, maybe after the 2010 election and KS's new 2A legislation (assuming it passes), and two A-rated governors running for election, we can push open carry for all at the state level.

imported post

People get the government they deserve. Timidity won't cut it.

imported post

Sonora Rebel wrote:

People get the government they deserve. Timidity won't cut it.

Click to expand...

The majority gets the government they deserve. The minority is F'd on the basis of the majority.

What I'd suggest you do, mortimer, is collect a number of like minded citizens in Wichita and start pressing forward with numbers. One voice is annoying; a chorus of voices sends a message.

Let the government of Wichita know that their draconian measures will not be tolerated anymore and you'll be able to make some serious changes.

imported post

Well, heck, won't somebody openly challenge the law?

If you got the bucks for the lawyer, I am all behind you.

I live in an open carry city/ county.

You know what?

I don't make a show of it, hate thatsome concerned citizenwakesour sheriff up from a good nap.

imported post

No you can't, unless it's in your car, boat etc... I'm a very cop friendly guy, being a member of the LAPD Reserves off and on for 15 years. In Wichita your odds are about 50/50 on finding an officer who is friendly towards gun carriers. The same goes for the local citizens, about 1/2 will freak out if they see someone walking their dog with a firearm openly displayed, the other 1/2 will give you a thumbs up.

Their is a bit of the old west mentality left here, but it's been pretty dilluted by liberal schools for the past 30-40 years.

Like I said, I tend to become friends with the officers who are working a career, striving towards a retirement with good benefits, and who want to make a difference and do some good forour country. They want to protect what our founding fathers started. Most of these guys will want to talk shop with you about your gun, hell, I've had cops unholster their guns andtrade me for mine tofeel it out (after both were unloaded, cleared and checked to be safe.)

My point is that you just don't know what your going to come accross. The "Crime Commission" here in Wichita is a liberal science experiment, not a panel of crime fighters, and THEY are decessively anti gun. I carry concealed, but I have a mid sized Kimber .45 which sticks out like a sore thumb. BUT it's covered. I looked at the slim 9mm's that are being manufactured specefically for CC, and some .380's etc... but it's not enough stopping power. A .45 is "just right" as Goldilocks would say. If I miss, it will probably lodge in something, if I hit, it will kill them. Any bigger I'd be sending rounds through walls or down the block potentially causing a friendly fire incident. They make some 3" .45's, but the 4" doesn't give up much accuracy from the 5", but the 3" does. I aim when I shoot, not point and fire. I can do so as quickly as most spray bullets without aiming. In Iraq these skills came in handy, pound 2 into their heart, and they are no longer a threat.

Everyone has their own opinions, these are just mine. I just don't like to "push" the law, because any case could go either way, then all rights to carry could be lost. I also am not fond of sitting in jail, even if it is for a few hours while things get sorted out. Thus, carrying a bigger gun that's noticable, has the stopping power I like, but is covered from plain sight.

imported post

Okay, so I finally went out on a limb today and called the City Attourney's office today to get an official opinion on this

I'll not disclose her name, the woman I spoke with on the phone was very courteous and helpful. She says firearms violations are her docket and all she handles are cases for weapons violations in Wichita. She was very matter-of-fact about it, and agrees that the law clearly states that open carry is allowed for CCH licensees within Wichita city limits. We chatted for a bit, she said in her 12 hears as a city prosecutor she's never heard of such a case brought into court.

The only CCH licensee violation she could recall was a guy riding a motorcycle that had an "assault rifle" slung over his back, he was cited for not having the firearm properly secured while transporting within a vehicle. Doesn't really have to do anything with CCH, but he happened to be one.

She was in strong agreement that open carry would be allowed. "It's your right, they can't take that away from you, the law says it's OK, do it if you want." She seemed pretty confident that the prosecution wouldn't stick.

I mentioned that I had brought the subject up to a couple WPD friends of mine and although they agreed it was OK according to city code, they didn't think the police force was aware of it. I asked if it would be wise to bring this up to the police chief to make sure the force is aware that it's OK, she seemed to think that wasn't a bad idea, but figures I would just get a canned answer like "Our officers are aware of city code and won't arrest or harass you for anything that isn't wrong."

I've also emailed the Wichita PD to pose the same question to them. Would like to get a clear answer from them as well, just to clarify.

imported post

I don't know, but even if an angel beamed herself down on my shoulder and said it was OK, I'd still rather CC. Why advertise. Sure, my 1911 prints pretty big, but nobody notices during casual contact.

I did get myself a single stack 9mm. ZERO print, but I'm not a 9mm fan at all. Need to do some testing and see how the self defence rounds do, guess I better scrounge up all the phone books I can find and heat out to the sticks. (they work great for targets)

imported post

I don't know in particular about Wichita, but KCKS has recently modified their local laws to reflect CCH as well.
What I find most interesting about the whole thing is one simple point. When the state modified the pre-emption bill to insure that CCH licensees could carry their weapons in parks and in their cars at private parking lots, they also changed the wording in the open carry segment, making it more lenient to the average citizen. The word they used both times was REGULATE. They could have, but did not use the word PROHIBIT. I can see regulation as an intelligent thing to do. The weapon must be in a holster, ok, I can even see going so far as to say a revolver must be hammer down on an empty cylinder, or an auto loader must be empty chambered. Why didn't the state legislature use the word prohibit, but they did say the law was to apply liberally?

Grimjack
KCKS

imported post

"prohibit" might have been found as unconstitutional. Certain regulations should also be found as unconstitutional at the State and Federal levels...

Any update on this discussion? It would be interesting to get a formal response from the City's DA office on this...