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Thread: OC on 4th of July to challenge ban on OC

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    Is 2A incoopoated in th 5th circuit? Is the Texas Constituion strong on 2A as to reasonably risk a felony?

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    orthzar wrote:
    I have been considering this for the past month, and seeing that Independence day is approaching, I must decide soon.

    I realize that 10 years or $10,000 are the possible consequences. I also realize that Freedom is not free. (Your correct, Good Luck!)

    If I am confronted by a police officer and brought to court, I would follow the guidelines of this article:

    http://www.lawfulgov.org/proact.htm

    If no officer bothers me on the walk, then so be it. Regardless, my goal is to go to court to challenge Penal Code Title 10 Sec.46.02 (a-1) (1), if not all of Section 46.02. I would defend my action as being Constitutionally guaranteed by the Second Amendment to the US Constitution, which is that an individual's right to be armed shall not be infringed.

    I would also remind the Jury that they have the authority to nullify an act if they deem that act to be unlawful: http://en.wikipedia.org/wiki/Jury_nullification
    (I hope the court lets you do that)
    "All laws which are repugnant to the Constitution are null and void" Marbury v Madison 5 US (2Cranch) 137, 174, 176 (1803)

    My case would hinge upon my right to be armed. The Constitution declares that the right of the people to be armed shall not be infringed. I combine 'to keep and bear' into 'be armed', to point out that being armed, regardless of manner, is Constitutionally protected. Banning and licensing are two simple methods of infringing upon rights. (Correct, how much money do you have?)

    Also, the Constitution is a contract between the States through which they delegate certain powers to the Federal Republic, and in return, the Federal Republic must protect the States and the People of the United States of America. Being a citizen of the USA, I enjoy various protections of my rights, of which the right to be armed is clearly safe-guarded by 2A. (applied to the states through the 14th amendment and article 6) Please read U.S. vs. Miller. First Texan to try it....learn from his mistake.

    I see the risk of unconstitutional imprisonment will be present, but I also remember that liberty is an invigorating contest and not an entitlement program.

    What do ya'll think? (Again, Good Luck)

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    I hope you're going to OC a long gun, because if you go with a handgun I fear you will be arrested, charged, and end up on trial. If you have the money to afford a super attorney and are willing to suffer the consequences of a conviction, then I wish you all the luck in the world.

    The problem you will face is this:

    Jury trial will convict you. Richardson and North Dallas, mostly liberal and pro conceal carry, will not care that 46.02 violates the 2nd Amendment. You are a criminal waiting to happen unless you have your CHL. You will never be allowed to present the idea of Jury Nullification to 12 people judging you.......let me repeat that. You will NEVER be allowed to argue nullification to a jury. The judge will strike that argument, remind the jury that he decides what the law is and means and that the jury is only their to decide on facts of the case.

    You can request a bench trial and argue marbury v. madison, murdock v. PA, and US v Emerson til the cows come home. A state court judge is going to convict you because his superiors have not instructed him that the 2nd Amendment has been incorporated via the 14th Amendment.

    You can take your convictions up to the Appelate courts and argue those same where you MIGHT have a better chance of succeeding.......after thousands of your dollars have been spent on defense.

    The 5th circuit might be gun friendly, but they are also sticklers for stare decisis, which is why they decided Emerson the way that they did.

    good luck if you do. I'll be rooting for you.

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    Well now that I know what jury nullification is (I had a good read on wikipedia), I hope that if you do get charged with a crime, the members of the jury are aware of this power and that they have the conviction to use it, though the judge would likely try to remove them for it. I suggest everyone read the article on Jury Nullification and remember it when you are picked one day for jury duty.

    I must say Orthzar, I'm very impressed that you have the conviction to actually stand up for your rights, risking financial loss and imprisonment, instead of just talking about it like myself and others. I'll be praying for you.

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    orthzar wrote:
    I have been considering this for the past month, and seeing that Independence day is approaching, I must decide soon.

    I realize that 10 years or $10,000 are the possible consequences. I also realize that Freedom is not free.

    If I am confronted by a police officer and brought to court, I would follow the guidelines of this article:

    http://www.lawfulgov.org/proact.htm

    If no officer bothers me on the walk, then so be it. Regardless, my goal is to go to court to challenge Penal Code Title 10 Sec.46.02 (a-1) (1), if not all of Section 46.02. I would defend my action as being Constitutionally guaranteed by the Second Amendment to the US Constitution, which is that an individual's right to be armed shall not be infringed.

    I would also remind the Jury that they have the authority to nullify an act if they deem that act to be unlawful: http://en.wikipedia.org/wiki/Jury_nullification

    "All laws which are repugnant to the Constitution are null and void" Marbury v Madison 5 US (2Cranch) 137, 174, 176 (1803)

    My case would hinge upon my right to be armed. The Constitution declares that the right of the people to be armed shall not be infringed. I combine 'to keep and bear' into 'be armed', to point out that being armed, regardless of manner, is Constitutionally protected. Banning and licensing are two simple methods of infringing upon rights.

    Also, the Constitution is a contract between the States through which they delegate certain powers to the Federal Republic, and in return, the Federal Republic must protect the States and the People of the United States of America. Being a citizen of the USA, I enjoy various protections of my rights, of which the right to be armed is clearly safe-guarded by 2A.

    I see the risk of unconstitutional imprisonment will be present, but I also remember that liberty is an invigorating contest and not an entitlement program.

    What do ya'll think?
    I wish you the best of luck. It's a confusing mess over there.....

    I've read the Texas 1876 Bill OF Rights, as section #23 stated the "Legislature could regulate wearing of firearms to prevent crime". Must have been a hell of a lot of crime in Texas in 1876.:shock:

    Section #1 stated the Texas 1876 Bill OF Rights is......"Subject only to the Constitution of the United States". Uh, I guess they missed that part of the 2nd amendment: "Keep and bear arms shall not be infringed".

    Think I'll stay in Arizona...



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    orthzar wrote:
    I realize that 10 years or $10,000 are the possible consequences. I also realize that Freedom is not free.
    Well, no, the penalties are nowhere near that strict. UCW is a Class A misdemeanor, maximum penalty 1 year in jail.

    Here is the law:

    Sec.46.02.UNLAWFUL CARRYING WEAPONS.

    (a)A person commits an offense if the person intentionally, knowingly, or recklessly carries on or about his or her person a handgun, illegal knife, or club if the person is not:

    (1)on the person's own premises or premises under the person's control; or

    (2)inside of or directly en route to a motor vehicle that is owned by the person or under the person's control.

    (a-1)A person commits an offense if the person intentionally, knowingly, or recklessly carries on or about his or her person a handgun in a motor vehicle that is owned by the person or under the person's control at any time in which:

    (1)the handgun is in plain view; or

    (2)the person is:

    (A)engaged in criminal activity, other than a Class C misdemeanor that is a violation of a law or ordinance regulating traffic;

    (B)prohibited by law from possessing a firearm; or

    (C)a member of a criminal street gang, as defined by Section 71.01.

    (a-2)For purposes of this section, "premises" includes real property and a recreational vehicle that is being used as living quarters, regardless of whether that use is temporary or permanent. In this subsection, "recreational vehicle" means a motor vehicle primarily designed as temporary living quarters or a vehicle that contains temporary living quarters and is designed to be towed by a motor vehicle. The term includes a travel trailer, camping trailer, truck camper, motor home, and horse trailer with living quarters.

    (b)Except as provided by Subsection (c), an offense under this section is a Class A misdemeanor.

    (c)An offense under this section is a felony of the third degree if the offense is committed on any premises licensed or issued a permit by this state for the sale of alcoholic beverages.


    Sec.46.15.NONAPPLICABILITY.

    (b)Section 46.02 does not apply to a person who:
    ( . . . )
    (3)is traveling


    If you want to play the loophole game, you could park two vehicles that you own or control, a block apart, and walk continuously back and forth directly between them while OCing. The Motorist Protection Act of 2007 allows non-CHLs to carry concealed in their cars, but there's no requirement that the gun be concealed while en route to the car.

    Or, you could use the traveling exemption, or the exemption for engaging in, or being en route to, a sporting activity requiring use of the gun. You can legally OC while going to the firing range.


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    How does that old saying go? A person who represents himself has a fool for a client.

    Kidding

    I actually filed suit pro se in family court and won custody of my son.
    That said, good luck. I don't know if I would be willing to make that decision now, let alone at 19 with my entire adult life ahead of me.

    Being a Texan I sure would be thrilled to benefit from your work.

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    I admire your courage, however, with the question of incorporation of 2A under 14A looming in the courts as it is, this is a fight that would be best had at a latter date. The Supreme Court of the US will almost certainly incorporate 2A, judging from Heller. Sotomayor won't change anything, considering who she's replacing. If you're going to man up and fight the system, choose your battles wisely. You have all our support, but, you're still fighting the behemoth, and you're going to need all the help you can get.

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    "How does that old saying go? A person who represents himself has a fool for a client" -- Chili



    No, it doesn't go that way, it goes "A LAWYER who represents himself...

    So if you're not a lawyer this does not apply, even ifthat saying WERE true.

    orthzarwillbe fine...

    -- John D.

    (formerly of Colorado Springs, CO)

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    DopaVash wrote:
    I admire your courage, however, with the question of incorporation of 2A under 14A looming in the courts as it is, this is a fight that would be best had at a latter date. The Supreme Court of the US will almost certainly incorporate 2A, judging from Heller. Sotomayor won't change anything, considering who she's replacing. If you're going to man up and fight the system, choose your battles wisely. You have all our support, but, you're still fighting the behemoth, and you're going to need all the help you can get.
    I believe it was Thomas Paine that said, "What we obtain too cheap, we esteem too lightly; it is dearness only that gives everything its value."

    I agree that I should be choosing my battles wisely. However, letting someone else fight my battles instead of me sounds like cowardice. Additionally, "almost certainly" is not sufficient reason to stand by and hope for success. My dad said that I should "pray like it depends on God, and work like it depends on me."

    I don't remember who said this, but I believe it goes like this: "who can fail when they have God on their side?"

    "The strength and power of despotism consists wholly in the fear of resistance."(Thomas Paine) I take that to mean that the despotism has strength and power so long as the people are afraid to resist it.

    "Tolerance is the last virtue of a dieing society."(Aristotle) I refuse to tolerate what is utterly repugnant to my very manhood. Whosoever tolerates despotism of any kind holds their manhood to be cheap and worthless.

    I will demand that the court prove that the free exercise of a single right constitutes a crime and that the free exercise of being armed is also a crime. If the court is unable to prove that, then no charges may be held against me. No loopholes, no analogies, and no complicated arguments are necessary. I would have the jury and, hopefully, some of my fellow Americans as my witness, if the court shows any corruption by declaring anything short of acquittal on all charges.

    cloudcroft wrote:
    "How does that old saying go? A person who represents himself has a fool for a client" -- Chili

    No, it doesn't go that way, it goes "A LAWYER who represents himself...

    So if you're not a lawyer this does not apply, even if that saying WERE true.

    orthzar will be fine...
    I wonder if our Founding Fathers had this kind of confident support back in 1776.


    cheers, my countrymen

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    orthzar,

    Yes, America has gotten soft, the "men" emasculated and the "women" masculated (and many kids smart-assed delinquents).Look at all the fools mourning the death of that pervert gayboy pedophile Michael Jackson for example (good riddance)...that says plenty of "America" nowadays. Shameful. No wonder we are a global joke and hated in many places...and too often the ridicule is well-deserved.

    As for the courts you will be facing, perhaps the burden of proof will be on YOU to show you DO have a right to carry, not the courts having the burden of proofto show you DO NOT, so you might not legally be able to demand THEY prove anything. If you CAN demand they do that, then good, but if the burden of proof is on you, you have much more work to do (and legal expense).

    Regardless, I agree with your sentiments 100%. And I believe thatthe "permit system" has been illegal (in every state that has one) since EVER SINCE DAY ONE (how many decades ago was that?) and don't know WHY it has not been seriously challenged in all this time. And sorry anti-gun states such as Hawaii -- which do not allow OC but have a "may issue" CC system (yet they never issue so they may as well not have ANY legal way to carry) -- how THAT has been allowed to stand all this time, either.

    I agree with you that all this is JUST PLAIN WRONG and it DOES need to be changed, butI gave up long ago on anything changing "within the system." Yes, I have thought a FEDERAL test case is needed -- as we need pro-gun freedoms to apply NATION-WIDE, not just in SOME states, since ALL Americans should have the same rights) -- but "justice" is so perverted (upside down) in this country I have doubts re: getting what's RIGHT recongized and made into law will ever happen. SoI've come to think that only a Culture War (or Civil War II) would bring about REAL "change" even though I don't see Americans -- I meanthe weak-willed watered-down versions we have today comparred tothose in our Founding Fathers' days -- ever standing up and doing that on the RKBA issue or any other important issue (like moral issues). I've only see "conservative"protests about finances (Tea Parties) so apparently, as long as most "conservative" Americans have their finances in order, they don't care about other issues. Sad.

    Whatever, if you proceed with your noble quest, think it through and try to anticipate all responses (tactics) the courts will use so you can have plans re: how you will handle them. Be careful out there and I admire you forputting yourself (personal freedom and finances) on the line.

    -- John D.
    (formerly of Colorado Springs, CO)

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    The Constitution of the United States is ONLY a "valid" as the Moral Constitution of its citizens. Enough said on that point.

    Will you be disclosing the location in advance?

    Also, wouldn't your arrest need to be the whole point? Otherwise you have created no opportunity for change.

    If you are actually serious, there should be an advanced press release so that you could be arrested as soon as you appeared with the weapon. Thereby preventing an accusation of any other "crime" having taken place.

    Would you like to speak with an attorney regarding how to conduct yourself throughout the entire ordeal?

    I would suggest having a video/camera crew there to cover the entire event from start to finish.

    Thoughts?


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    True:

    “Our constitution was made only for a moral and religious people. It is wholly inadequate to the government of any other.” -- John Adams.

    ...which means we are in big trouble nowadays sincethings have gone downhill in that respect since his time.

    -- John D.


    (formerly of Colorado Springs, CO)

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    I think that "Innocent until proven guilty" became mere words long ago...along with "liberty and justice for all."

    -- John D.


    (formerly of Colorado Springs, CO)

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    Your stark Idealism will get you in trouble. That's not to say that one shouldn't be an idealist; true idealism is something this country lacks in a major way. However, one's actions should never be strictly based on idealism alone. Actions must be done with pragmatism and reason, or else the push back will damage whatever cause you champion.

    If you feel it a cowardice to not wait out the ruling on incorporation, then perhaps you should get involved in that cause.

    There's no cowardice in waiting a short period of time to increase your chances of success.

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    orthzar wrote:
    OK, thanks to ya'll for your kind responses, and to the authors of any and all future responses. I believe I now know how I will go about OC'ing legally and lawfully, though it may not be on Independence Day.

    If this works, then I will never have to fear the police when I OC. I haven't written out the precise process yet, but I will in effect be using contract law to produce an Open Carry license for me and me alone, which I might apply wherever I go in America, not including private property of course. This should sound absurd to anyone with "modern sensibilities", but you don't have to worry about my safety. I promise you that I will be fine.

    Again, I have not actually done anything yet, and besides what I plan on now doing will be perfectly legitimate, because I would be in contract with the State of Texas to Open Carry a handgun. I know it is absurd, but just think for a minute. If two or more entities enter into a contract with each other, all are lawfully bound by that contract. So then I will enter into contract with the State of Texas(I don't know the exact person or office yet, probably the Office of the Governor of Texas), which will, in final effect, lawfully hinder anyone from preventing me from OC'ing in public.

    For ya'll's viewing pleasure, I will provide a copy of the contract here once I have it prepared to send off to some part of the State of Texas.

    For some strange reason, I find this very amusing. It was almost starring me in the face. Just enter into contract.


    Cheers, my countrymen
    The quoted post is merely an idea. I guess I am flip-flopping on something that I should not be.

    More or less, I now declare a call to arms. The only true crime is the infringement on the life, liberty, property, or rights of another living soul. Every ban on OC or CC is a statute that no human is bound to obey. If you pay the fine, you are admitting that another human can be a superior authority to you, when that is not possible.(first line in Wikipedia page on Fines) Only God is superior to you, and all humans are equal to you so long as you do not infringe on the life, libert, property, or rights of another living soul. Demand that everyone, including police, to talk across to you, not donw to you.

    I will repeat it. I declare a call to arms. OC or CC everywhere you go, except on private property which the owner has told you to not enter.

    Since the only sign of liberty is to be armed, the unarmed are not free. I promise you that I will die free, one way or another, with or without support. You are only truely free, if you are armed.

    Therefore from this post on, I will be armed. So, watch out, I will enforce my rights with some sort of arm, likely a gun. I know that my life is worth defending; is yours?

    I read this article,
    http://keepandbeararms.com/informati...em.asp?ID=3195
    and it was very helpful. The next arm I will purchase will be a .38 special revolver. I just need to find a used one.


    Enforce your liberty, my countrymen.

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    I just returned from a visit to the Arlington, Tx area 3 days ago. I contracted for a home while there- contract pending & scheduled to close the end of the month.

    While there the OC option was excercised with some stressing of the "exception envelope" ["traveling", in direct route to my vehicle, and on premises under my control]. The envelope was briefly "torn" on several occassions & cautiously disregarded the farther into rural West Texas and the Panhandle that I traveled.The Texas " handgun law" is certainly alawyer'sincome stimulous plan, because no one really understands it.

    It seems , at least on the surface, that the failure to conceal issue only applies to CHL holders. Interestingly the rest of the law makes no distinction between concealed or displayed - simply classifies possession of a handgun as criminal conduct except under specified circumstances. It's obvious [ to me] that the intent of the law Title 10 [46.02] was to address WEAPONS being carried in a manner intended to faciltate criminal purpose as opposed to self defense.

    So a non-CHL OC'er is not subject to "intentionally, knowingly, or recklessly fails to conceal" prosecution when wearing a handgun in plain view. Further, if aperson licensed under authority of Subchapter H, chapter 411 is wearing a handgun in plain view to begin with -absent of intent or attempt to conceal - nogrounds exist for a charge relating to "intentionally, knowingly, or recklessly fails to conceal", because the weapon was worn pursuant to the authority of the Texas Constitution.Obviously this is my legal interpretation and should not be relied upon as professional legal counsel - just offerred up for thought. Perhaps
    better not to have a Texas CHL for the time being.

    What amazes me is that apparently law enforcement has slowly evolved in it's "enforcement" approach to the "handgun laws" in Texas. The law has been on the books as I understand it since 1871. I guess Wyatt Earp & Johnny Ringo, weren'taware that they were in violation of this UCW law when they were involved in a shooting incident outsidethat saloon on Concho St in San Angelo during the 1880's.[Not to be confused with the OK Corralaffair]

    Actually - I suspect that no one outside of the Austin City Limits , Dallas, & Houston even knew it was on the books - or at least had the common sense to recognize that it was directed at CRIMINALS......[..."with a view to prevent crime ."]

    I respect the determination of those who wish to bring this to a head - and not tippy-toe around the tulips.Urban areas such as DFW Metroplex would not be my choice for challenging 46.02. Community values are a fair measure of law enforcement and jury disposition. DFW suffers from crime problems that simply don't thrive in rural communities, as well as "big city" arrogance.

    From what I hear the remedy is close at hand. The fact still remains that what is needed is thousands of Texans with the cautious determination to begin to press against what consist of a veryweakbarricade to free excercise of this right, and pressure legislators to change the law. The Texas Constitution clearly protects the lawful bearing/wearing of arms for lawful purpose of defense of one's person.

    Magistrates have been known not to "allow" constitutions to be brought into the court record. Self defense is an affirmative defense. The threat of becoming a targeted victim of violent crime is very realin Richardson , recognized by the SCOTUS in Heller as being a possible circumstance at any time -therefore Article 2, section 23 is represented in the courtroom when the affirmative defense of self defense is held up. This defeats application of 46.02 to any LAWFUL purpose for carrying a handgun.


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    I am from Wisconsin so this may be completly diffrent than how things work in Texas.

    I was on a jury on a murder trial and when we were given our instructions by the judge he said that we were not to decide if the law was right or wrong but only if the defedent broke the law according to the guidelines we were given. after the trial was over but before we had come up with a verdect the defendint pleaded guilty because if we found her innicent the DA was going to charger her husband with it and keep going untill he got someone convicted( seems very crooked the way I am explaining it but if you were there for the trial you could maby see there point of view. although I disagree with it) But anyway when we were deciding I basicly said that the wholoe trial was a bunch of BS and even if she did it (I think she did) I was voting not guilty no mater what whell any whay after everything was over the asked me to stay behind when the othe jourers left and I got to get a lecture from the Judge about activism and and how it is not my job to judge the law and me aruging back how th whole trial was a bunsch of BS and that if anyone should be on trial it should be the cops, DA, and judge for harrassment under color of the law. Eventully it got around to him claming that he would have callde it a miss trial if I would have voted that wy instead of the defendent pleading guilty. although I don't know if that can be done aftera verdict has been reached.

    Basicly my point is you are puting yoursef in the hands of 12 people who probly don't know what is allowed and what is not and the judge will specificly tell them thay are here to judge whether you commided a crime and not to judge the fairness of the law. also the judge probly would call a misstrial if you or your lawyer brought up jury nullification. In short I think if you gow to court with that plan even though constutionly just, you wouldget SCREWED.



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    Soooo.....I guess if I decide to excercise my juror nullification.... best not to talk about it - just do it.If one votes "not guilty" based upon their conscience - that's it. They don't have a responsibility to sell their conscience to the other jurors

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    That is about it. but if we would have delivered a verdict I don't think that it could have been called a miss trial because if it is a houng jury or not guilty verdict it would be double jeporidy to try the defendent agen.



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    Well even if you put not guilty and the judge declared a mistrial at least you wouldn't be like everyone else towing the line. And if you want to think about it in a different way your refusal to convict would buy them a little bit more time.

    I would never convict someone for a crime that isn't a crime, if that makes any sense.

    That being said I wish to go back to the topic of open carrying in Texas. You should probably try your luck with a long rifle first. Earlier Sec.46.02 of Texas law was quoted. I just read it again and it makes no mention of firearms, rifles, or shotguns but only of handguns. It may be best to test the waters a bit first by open carrying a shotgun or a rifle. Your chances of being arrested won't go down but since you aren't breaking the law (as far as 46.02 goes) then your chances of fighting it are much greater.

    I hold onto a bit of idealism myself and I understand your sentiments. I've taken a different approach though. I refuse to be the lonely soul who gets thrown to the wolves while everyone else enjoys their sodas and cable tv. That means I have to resist in a more private manner until the rest of the population wakes up. If things get to a certain point then I'm sure I'll have my blaze of glory moment but, for me at least, it is too soon.

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