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Thread: What constitutes OC?

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    As the thread title asks, "What constitutes OC?"

    Attorney General JB Van Hollen was on WSAU here in Wausau I asked him on the air and he stated something to the effect of, "if it isn't concealed then it's open carry".

    With that as a starter, and me as a beginner to this topic what do you guys have to say?

    Will

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    To put it in a nutshell , If someone can't see it ,it is concealed.

    That is the simple version and the one that will help most

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    OK, so with that said does the part of weapon visible have to be readily identifiable as a firearm?

    If yes, that begs the question, "What is readily identifiable?"

    and

    If no, then why not use a super low riding IWB holster that only leaves the top edge of the backstrap visible?

    All hypotherical, of course.

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    I think most would tell you to keep the grip exposed

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    32HR MAG wrote:
    I think most would tell you to keep the grip exposed
    I think must with tell you that if the grip is exposed, everybody would be able to see that you have a gun.

    That being said, my understanding is we don't allow the Virginia tuck here, and the gun as to be 100% visible...

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    gollbladder13 wrote:
    and the gun as to be 100% visible...
    So much for holsters.

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    Doug Huffman wrote:
    gollbladder13 wrote:
    and the gun as to be 100% visible...
    So much for holsters.
    You know what I mean...

    Can't have a shirt over the grip of the gun, even if the barrel is exposed. Can't have it in an IWB holster, even if the grip is showing. Etc.

    Obviously, the holster covers part of the gun. Maybe I should rephrase to the holster/gun combo must be 100%

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    Does that include a full flap holster? The devil is in the details.

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    Which is why the laws need to be changed to be, at the very lease, more clear... (and I need better wording!)

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    Hi ShooterReady, welcome to OCDO (Open Carry Dot Org), glad to see you found the site...

    As you can see from the above posts, there isn't a clear cut answer to your question. However, the standard practice is to carry your firearm using an OWB (outside the waist band) holster with having any clothing concealing it, I typically tuck my shirt in so no such concealing can happen.

    A lot of people that I have talked to carrying using a Blackhawk Sepra holster, but that by no means is required, I would stick to a holster than doesn't have a flap that covers the gun as Doug talked about.

    You can read this recent post (couple posts down) to see how we load/unload/encase for vehicle travel, I think that is the most tricky part of carrying as it requires you to handle your firearm.

    Carry on!

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    Doug Huffman wrote:
    gollbladder13 wrote:
    and the gun as to be 100% visible...
    So much for holsters.
    I would not recommenddouble-sided tape. I won't get in to details.

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    Since the legality of OC in Wisconsin is actually the absence of laws, there is not a clear cut statutory definition. However; since CC is OC's opposite and we do have statutory law prohibiting that,it would be my opinion to use 941.23 as aguide.

    So; InState V. Kieth,the court said that the elements for a violation of 941.23 are:

    1. A dangerous weapon is within yourreach.

    2. You are aware of the weapons presence.

    3. The weapon is hidden.

    OC would mean the absense of one of those three conditions.

    Since you carrying it, and know you are,you meet elements #1 and #2. So, it must not be hidden.

    In State V. Wells; and I'm paraphrasing,the court said that a gun indescernible from ordinary observation by a person within the immediate vicinity is considered hidden for the purposes of 941.23.[ACTUAL WORDING FROM HISTORY OF 941.23: A handgun on the seat of a car that was indiscernible from ordinary observation by a person outside, and within the immediate vicinity, of the vehicle was hidden from view for purposes of determining whether the gun was a concealed weapon under this section. State v. Walls, 190 Wis. 2d 65, 526 N.W.2d 765 (Ct. App. 1994).]

    Therefore, to OC the gun must be dicernible by ordinary observation by a person within your immediate vicinity.

    IANAL, but that is how I would describe it.

    As you can see, it's still pretty open for discussion.... how dicernible? What kind of person...a reasonable one?
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    Having sat in on a court proceeding involving an open-carry issue, the questioning went something like this (paraphrasing to the best of my recollection)

    Q: Did you see that the defendant had a holsterd firearm (gun, sidearm, can't remember)?

    A: "Yes"

    Q: Was it open and clearly visible?

    A: "Yes"

    And that was about it.

    I have personal confidence that as long as I have my sidearm in a holster, outside of my clothing, and no shirt, jacket, poncho, shawl, etc partially or fully covers any part of the gun or holster (belt clip, paddle etc aside) and its clear that there is a gun in the holster, I'm in the clear.

    This is just my opinion. But I rely on it with complete confidence. I would not rely on, with complete confidence having a gun tucked in my waistband with only the grip exposed and the remainder of the gun not just covered, but covered with something other than a holster that makes it obvious its a gun.

    To err on the side of caution, I would not carry a holster with a full flap that doesn't demonstrate there is a firearm in the holster.

    Even though holsters vary, the fact that it is a holster demonstrates "openess" and the fact that upon notice ofthe obvious holster,a millisecond more observation would include seeing enough of the firearm protruding from the holster to indicate there is indeed a gun in the holster. I'm confident that clearly fits under "open carry"

    I'm not as confident that an "inside the pants" holster demonstrates the same openess because even with part of the gun exposed, with a significant part of the gun AND holster covered, its not so obvious.

    Not legal advice, just my personal considerations as I open carry.



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    Brass Magnet wrote:
    Since the legality of OC in Wisconsin is actually the absence of laws, there is not a clear cut statutory definition. However; since CC is OC's opposite and we do have statutory law prohibiting that,it would be my opinion to use 941.23 as aguide.

    So; InState V. Kieth,the court said that the elements for a violation of 941.23 are:

    1. A dangerous weapon is within yourreach.

    2. You are aware of the weapons presence.

    3. The weapon is hidden.

    OC would mean the absense of one of those three conditions.

    Since you carrying it, and know you are,you meet elements #1 and #2. So, it must not be hidden.

    In State V. Wells; and I'm paraphrasing,the court said that a gun indescernible from ordinary observation by a person within the immediate vicinity is considered hidden for the purposes of 941.23.[ACTUAL WORDING FROM HISTORY OF 941.23: A handgun on the seat of a car that was indiscernible from ordinary observation by a person outside, and within the immediate vicinity, of the vehicle was hidden from view for purposes of determining whether the gun was a concealed weapon under this section. State v. Walls, 190 Wis. 2d 65, 526 N.W.2d 765 (Ct. App. 1994).]

    Therefore, to OC the gun must be dicernible by ordinary observation by a person within your immediate vicinity.

    IANAL, but that is how I would describe it.

    As you can see, it's still pretty open for discussion.... how dicernible? What kind of person...a reasonable one?
    Hence the term, "In plain view"
    IMHO and I ANAL, even a holster with a flap that is manufactured for use as a holster for a hand gun could be used, as the hand gun in the holster is still identifiable as a fire arm.

    I know, I know, some will say,"What if I am carrying only a screw driver in that flapped holster?"

    Then I say to that, "What if you are carrying a pellet gun in your serpa?"

    A fake fire arm is a fake fire arm. If you are carrying a screw drive in a flapped holster, you are giving the obvious impression that you are carrying a fire arm as that is what the holster is intended for. Is it not?

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    "What if you are carrying a pellet gun in your serpa?"

    A fake fire arm is a fake fire arm. If you are carrying a screw drive in a flapped holster, you are giving the obvious impression that you are carrying a fire arm as that is what the holster is intended for. Is it not?
    Just to reference what you're talking about with the fascimile firearms...

    ETA: in "reasonably be expected to alarm, intimidate, threaten or terrify another person", the anit's, sheeps, and uneducated could potentially use that as a reason for worry if they are afraid of an actual firearm. There are only 3 times I would see anybody carrying a fascimile.

    1) While playing airsoft
    2) To show support (my household only owns 1 actual handgun, but at the picnic after the cleaning this weekend, my fiance might wear the airsoft to show support)
    3) Some punk kid trying to be tacticool but can't get a real gun (probably a good thing!)



    941.2965

    941.2965 Restrictions on use of facsimile firearms.

    941.2965(1)

    (1) In this section, "facsimile firearm" means any replica, toy, starter pistol or other object that bears a reasonable resemblance to or that reasonably can be perceived to be an actual firearm . "Facsimile firearm" does not include any actual firearm .

    941.2965(2)

    (2) No person may carry or display a facsimile firearm in a manner that could reasonably be expected to alarm, intimidate, threaten or terrify another person. Whoever violates this section is subject to a Class C forfeiture. 941.2965(3) (3) Subsection

    etc.


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    I'd think the flapped holster would get you in trouble. One can assume on seeing the holster that it may contain a firearm...the fact remains you can't easily see it. Look at it this way: what if you had a t-shirt printed with big letters both on the front and back that said, "I'm carrying a firearm", do you really think that would be a good defense for having a pistolhidden in your waistband? The law says the gun can't be hidden...don't know if anything is said about implying through other factors someone is armed is an adequate defense against a CCW charge.

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    Well I gues we should start a business that manufacturers clear polycarbonate holsters, and then we would also need to make transparent springs for the retention system because that may just cover a tiny part of the gun.

    Double sided tape and the firearm stuck on your forehead?

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    Nutczak wrote:
    Well I gues we should start a business that manufacturers clear polycarbonate holsters, and then we would also need to make transparent springs for the retention system because that may just cover a tiny part of the gun.

    Double sided tape and the firearm stuck on your forehead?
    I just use a clear tubberware container with slots for on the belt. I use cling wrap for retention, but not the fancy red or blue kind. That's too close to translucent. We're looking for transparent, here...

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    JimE wrote:
    I'd think the flapped holster would get you in trouble. One can assume on seeing the holster that it may contain a firearm...the fact remains you can't easily see it. Look at it this way: what if you had a t-shirt printed with big letters both on the front and back that said, "I'm carrying a firearm", do you really think that would be a good defense for having a pistolhidden in your waistband? The law says the gun can't be hidden...don't know if anything is said about implying through other factors someone is armed is an adequate defense against a CCW charge.
    Bull puckey!

    I carry my 9mm in a full sized army holster. It has a nicefull flap on it. Helps keep the rain off. No problem at all. My local (Milwaukee) cops see me every other day with it. It is on my hip, in full sight. Trust me when I say, I feel very safe with my holster choice. Most of our cops have had this same holster on, when serving in our armed forces.

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    I wonder what Aaron gives his cops pro their quid of not citing him for 941.23?

    The elements for a violation of s. 941.23 are: 1) a dangerous weapon is on the defendant’s person or within reach; 2) the defendant is aware of the weapon’s presence; and 3) the weapon is hidden. State v. Keith, 175 Wis. 2d 75, 498 N.W.2d 865 (Ct. App. 1993).


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    Doug Huffman wrote:
    I wonder what Aaron gives his cops pro their quid of not citing him for 941.23?

    The elements for a violation of s. 941.23 are: 1) a dangerous weapon is on the defendant’s person or within reach; 2) the defendant is aware of the weapon’s presence; and 3) the weapon is hidden. State v. Keith, 175 Wis. 2d 75, 498 N.W.2d 865 (Ct. App. 1993).
    Doug we all know yoy like to get hung up on 3) the weapon is hidden, and techenicly you are right but can you cite one refrence whare someone was charged with CC when the gun was in a case designed to carry it that was obvsely a case?

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    I never gave it a second thought. I still won't...:P

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    i alwaays wondered if a LEO might try to claim that my P-38 was concealed because the holster encloses it so well?

    so some trimming of the excess and changing the flap strap to a thumb break retainer. toda!




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    No need, I could have seen that it was a gun before the cuts were made. On your hip, I can also tell that in no way are you attempting to hide it.

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    If you wear an OWB holster you will always be safe that it is considered OC.

    If you wear an IWB holster, I would argue that it is open since it clearly the grip of a gun. However, this has not been tested in court. How much of the grip needs to be exposed? If you look at the example of other states, LEOs in Michigan for instance have been trying to trample on OC by calling IWB holsters concealed.

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