UT HB78

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House Bill 78 adds a clause to 76-10-506 that specifically states that Open Carry is authorized. Since Open Carry is legal by default because it is not declared illegal, I do not see a reason for this type of language. It does include some revisions that clean up some confusing language in the law so, in the words of O'Reilly, "What say you?"

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I like the idea because now LEO's can be shown that it's legal, and they won't be able to confiscate peoples firearms.

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I can only imagine the amendments that will be thrown at this one. :?

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SGT Jensen wrote:

I can only imagine the amendments that will be thrown at this one. :?

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I agree, however, if it goes through "as is", it would be a significant on-the-books piece of code to show officers who try to harass you for OC. It would also set the stage for successive case law that would solidify the right to OC if a rogue opinion enforcement officer were to overstep their bounds and effect a false arrest for OC and try to attach a "disturbing the peace" or other BS charge to it just because they don't like you carrying. I still think the whole "trespassing" and "disorderly conduct" codes needs to be rewritten to protect OCers, but that's just my opinion.

Kevin

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Very Excited :celebrate:celebrate:celebrate:celebrate:celebrate:celebrate:celebrate:celebrate

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I just readit, I LOVE the clarification! Too bad it isn't federal

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mqondo wrote:

I like the idea because now LEO's can be shown that it's legal, and they won't be able to confiscate peoples firearms.

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They aren't supposed to take your gun unless they arrest you for something anyway. If they just take off with your gun, even if they cite you for an infraction, then they are in violation of state law and need to be dealt with legally asap. Keep your digital recorders going constantly. I can't pound that sentiment enough.

77-7-17. Authority of peace officer to take possession of weapons.
A peace officer who finds a dangerous weapon pursuant to a frisk may take and keep it until the completion of the questioning, at which time he shall either return it if lawfully possessed, or arrest such person.

Enacted by Chapter 15, 1980 General Session

Opinion enforcement beware! Also keep in mind that they cannot even approach you and stop you without cause to believe that you have and/or are in the commission of a crime, period!

77-7-15. Authority of peace officer to stop and question suspect -- Grounds.
A peace officer may stop any person in a public place when he has a reasonable suspicion to believe he has committed or is in the act of committing or is attempting to commit a public offense and may demand his name, address and an explanation of his actions.

Enacted by Chapter 15, 1980 General Session

Technically, they can't even ask you for ID during a "terry stop" if you are walking around a public place. All you are required to tell them is your name, address and what you are doing there. After that, keep your mouth shut and just ask if you are free to go and if you have committed some type of crime over and over until they get the point that your aren't some kind of ignorant pawn for them to push around. Get their names and then contact their department heads to file an official complaint if you feel they acted in a manner requisite to conduct unbecoming an officer or if they violated your rights in any way. You should not feel threatened or fearful of those whom you have sanctioned with your tax dollars to protect you from the real bad guys. At least that is how I see it anyway. An OCer should not be "scared" or "worried" that they might have an ever-so-dreaded LOE encounter. It shouldn't be that way, but sadly it still is for most.


Kevin

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LovesHisXD45 wrote:

They aren't supposed to take your gun unless they arrest you for something anyway. If they just take off with your gun, even if they cite you for an infraction, then they are in violation of state law and need to be dealt with legally asap. Keep your digital recorders going constantly. I can't pound that sentiment enough.

77-7-17. Authority of peace officer to take possession of weapons.
A peace officer who finds a dangerous weapon pursuant to a frisk may take and keep it until the completion of the questioning, at which time he shall either return it if lawfully possessed, or arrest such person.

Enacted by Chapter 15, 1980 General Session

Opinion enforcement beware! Also keep in mind that they cannot even approach you and stop you without cause to believe that you have and/or are in the commission of a crime, period!

77-7-15. Authority of peace officer to stop and question suspect -- Grounds.
A peace officer may stop any person in a public place when he has a reasonable suspicion to believe he has committed or is in the act of committing or is attempting to commit a public offense and may demand his name, address and an explanation of his actions.

Enacted by Chapter 15, 1980 General Session

Technically, they can't even ask you for ID during a "terry stop" if you are walking around a public place. All you are required to tell them is your name, address and what you are doing there. After that, keep your mouth shut and just ask if you are free to go and if you have committed some type of crime over and over until they get the point that your aren't some kind of ignorant pawn for them to push around. Get their names and then contact their department heads to file an official complaint if you feel they acted in a manner requisite to conduct unbecoming an officer or if they violated your rights in any way. You should not feel threatened or fearful of those whom you have sanctioned with your tax dollars to protect you from the real bad guys. At least that is how I see it anyway. An OCer should not be "scared" or "worried" that they might have an ever-so-dreaded LOE encounter. It shouldn't be that way, but sadly it still is for most.

Kevin

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Cite please for police not being able to demand an ID document.

(Many of us know whether the statement is true.Some even know the finer points, for example, whether police can demand an ID under penalty of law if the statute is written one way versus another. The reason for the cite is so any new readers can confirm for themselves whether the information is true.)

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House Bill 78 adds a clause to 76-10-506 that specifically states that Open Carry is authorized. Since Open Carry is legal by default because it is not declared illegal, I do not see a reason for this type of language. It does include some revisions that clean up some confusing language in the law so, in the words of O'Reilly, "What say you?""

SERIOUS problem. Open Carry is "constitutional" (Govt shall not infringe...) under the US and States Constitutions. All firearms laws are unconstitutional that prohibit posession anywhere.

ITs about the right to have ones posessions, not about firearms. What theyve done is seize your property, then "graciously given it back to you".

It is EXTREMELY bad when law usurps that right like Utah 76 has, then the State pretends to have the authority to ALLOW you to open carry. The problem is that this law is usurping the Constutional Rights and subverting them under law, where they can tamper with it at will.

Previous 76-10-505 read:

" 76-10-505. 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, unless:
(i) the vehicle is in the person's lawful possession; or
(ii) the person is carrying the loaded firearm in a vehicle with the consent of the person lawfully in possession of the vehicle;
(b) on a public street;... "

They cant do that. That shreds the Constitution(s).

HB 78 DOES NOT fix the problem because they have still subverted the Constitutions and are taking hold on the matter in law. It only appears to solve the problem. Yes its now "legal" to OC, but possession is not/should not be "legal." It should not be illegal either. Law should have no hold on the question (except for reckless, assault etc - harming another person) and thats not about a posession called a firearm, thats about assault.

Take a look (like I am now before a trip to NV) at Oregon, Idaho and Nevadas laws. Not a word about open carry / street /vehicle. These states are "hands off".

Im SHOCKED that Utah, with the large population of LDS have ignored the Constitutions especially recalling the history of the LDS being persecuted and killed in the Midwest.

I see this has not passed yet. I hope you all flood the Legislature with letters.

EDIT. I just searched bills that passed last year (2009) and found this:

http://le.utah.gov/ASP/RelatedBill/similar.asp?scode=03071&Year=2009

" 76-10-505. Carrying loaded firearm in vehicle or on street.
69 (1) Unless otherwise authorized by law, a person may not carry a loaded firearm:
70 (a) in or on a vehicle[;], unless:
71 (i) the vehicle is in the person's lawful possession; or
72 (ii) the person is carrying the loaded firearm in a vehicle with the consent of the
73 person lawfully in possession of the vehicle;
74 (b) on [any] a public street; or"

Theres a juicy escape....

" 74 (b) on [any] a public street; or" "

The word "any" means exactly that, prohibited on ALL streets.

The word "a" is a definite article which refers to one particular street. WHICH ONE?
Since that is not specified, it is too vague to enforce. Does "street" include a sidewalk? Last I checked people didnt drive on sidewalks. At least I hope not...

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Citizen wrote:

LovesHisXD45 wrote:

They aren't supposed to take your gun unless they arrest you for something anyway. If they just take off with your gun, even if they cite you for an infraction, then they are in violation of state law and need to be dealt with legally asap. Keep your digital recorders going constantly. I can't pound that sentiment enough.

77-7-17. Authority of peace officer to take possession of weapons.
A peace officer who finds a dangerous weapon pursuant to a frisk may take and keep it until the completion of the questioning, at which time he shall either return it if lawfully possessed, or arrest such person.

Enacted by Chapter 15, 1980 General Session

Opinion enforcement beware! Also keep in mind that they cannot even approach you and stop you without cause to believe that you have and/or are in the commission of a crime, period!

77-7-15. Authority of peace officer to stop and question suspect -- Grounds.
A peace officer may stop any person in a public place when he has a reasonable suspicion to believe he has committed or is in the act of committing or is attempting to commit a public offense and may demand his name, address and an explanation of his actions.

Enacted by Chapter 15, 1980 General Session

Technically, they can't even ask you for ID during a "terry stop" if you are walking around a public place. All you are required to tell them is your name, address and what you are doing there. After that, keep your mouth shut and just ask if you are free to go and if you have committed some type of crime over and over until they get the point that your aren't some kind of ignorant pawn for them to push around. Get their names and then contact their department heads to file an official complaint if you feel they acted in a manner requisite to conduct unbecoming an officer or if they violated your rights in any way. You should not feel threatened or fearful of those whom you have sanctioned with your tax dollars to protect you from the real bad guys. At least that is how I see it anyway. An OCer should not be "scared" or "worried" that they might have an ever-so-dreaded LOE encounter. It shouldn't be that way, but sadly it still is for most.

Kevin

Click to expand...

Cite please for police not being able to demand an ID document.

(Many of us know whether the statement is true.Some even know the finer points, for example, whether police can demand an ID under penalty of law if the statute is written one way versus another. The reason for the cite is so any new readers can confirm for themselves whether the information is true.)

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lol... Read 77-7-15 again. The language makes the concept "implied".

Kevin

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This also goes along with it. It never actually says that you must provide a document showing your identity. There are, however, legal consequences for lying about your identification.

76-8-301.5. Failure to disclose identity.
(1) A person is guilty of failure to disclose identity if during the period of time that the person is lawfully
subjected to a stop as described in Section 77-7-15:
(a) a peace officer demands that the person disclose the person's name;
(b) the demand described in Subsection (1)(a) is reasonably related to the circumstances justifying the stop;
(c) the disclosure of the person's name by the person does not present a reasonable danger of self-incrimination
in the commission of a crime; and
(d) the person fails to disclose the person's name.Failure to disclose identity is a class B misdemeanor
(2).

77-7-2. Arrest by peace officers.
A peace officer may make an arrest under authority of a warrant or may, without warrant, arrest a person:
(1) (a) for any public offense committed or attempted in the presence of any peace officer; and
(b) as used in this Subsection (1), "presence" includes all of the physical senses or any device that enhances the
acuity, sensitivity, or range of any physical sense, or records the observations of any of the physical senses;
(2) when the peace officer has reasonable cause to believe a felony or a class A misdemeanor has been committed
and has reasonable cause to believe that the person arrested has committed it;
(3) when the peace officer has reasonable cause to believe the person has committed a public offense, and there is
reasonable cause for believing the person may:
(a) flee or conceal himself to avoid arrest;
(b) destroy or conceal evidence of the commission of the offense; or
(c) injure another person or damage property belonging to another person; or
(4) when the peace officer has reasonable cause to believe the person has committed the offense of failure to
disclose identity under Section 76-8-301.5.

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Capn Camo wrote:

They cant do that. That shreds the Constitution(s).

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Well, maybe it will shred the US Constitution after the 2A is held to be incorporated against the states. As of now, the US Constitution may be silent on what Utah can do.

The Utah Constitution specifically allows the legislature to define the lawful use of arms, which can be construed to include the lawful manner of carry.

In any case, this sort of "BUT THEY CAN'T DO THAT!" complaint is counterproductive. They are doing that. Sure it'd be nice if we could just say "Well, roll all that crap back right now!" and have it happen, but that's not how the system works. You don't like the law? You think it's unconstitutional? (I do!). You have two choices:

First, you can work through the legislative process to fix it. Big, sweeping changes don't happen that way. Instead, you nibble away at the problem, one bite at a time. Nibbling is slow, unpleasant and difficult, but it works. The anti-gunners know that, because that's how they got us where we are. Now we've woken up and are nibbling back and eventually we'll get there.

Second, you can work through the judicial process to fix it. But, again, big, sweeping changes rarely happen that way. The courts try really hard to keep their rulings narrow and focused on the case at hand, and to find the ruling that has the LEAST impact on the status quo, consistent with the situation and the law. As a result, working through the courts is also a slow, unpleasant and difficult process, and looks a lot like nibbling, too, although sometimes you can set precedents that knock down a large swath of laws. After Heller, if we can get the 2A incorporated against the states, bunches of laws in places like Illinois will fall. We're many, many steps away from challenging things like Utah's ban on permitless loaded carry.

Well, I guess there are a couple of other choices:

Third, you can whine about how the law is unconstitutional, while the anti-gunners work on nibbling away at your rights some more. That's what we did for a long time. It's a bad idea.

Fourth, you can build a bunker and wait for the revolution. And if it comes, hope like hell that what you get out the other side is half as good as what we have now.

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I agree with most every thing swillden wrote. But I want to comment on one item specifically:

swillden wrote:

The Utah Constitution specifically allows the legislature to define the lawful use of arms, which can be construed to include the lawful manner of carry.

I

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This is certainly the case the antis would like to make. But let's look at Art 1, Sec 6 in its entirety.

Article I, Section 6. [Right to bear arms.]
The individual right of the people to keep and bear arms for security and defense of self, family, others, property, or the state, as well as for other lawful purposes shall not be infringed; but nothing herein shall prevent the Legislature from defining the lawful use of arms.

Now, a fundamental concept of constitutional and even statutory law is that we are not writing or reading poetry here. EVERY word has meaning and a different meaning from other words. If the drafters of legislation wanted to convey the same meaning, they'd have used the same word.

So let's look this over. "The individual right of the people to keep and bear arms ...shall not be infringed." That means the State of Utah does not get to infringe the ownership (keep) NOR possession (bear) of arms.

The legislature is empowered only to "defin[e] the lawful use of arms."

So what is "use"? Is it synonymous with "keep and bear" or "own and carry"? I would argue no.

Try this mental test. Do you own and car keys? When did you last USE those car keys? Where are those keys right now?

A very common set of answers to these questions would be:

Yes, I own a car and also own a set of keys to unlock and operate that car.

I last used those keys when driving my car to work this morning. Or maybe even, I last used those keys 20 minutes ago to help cut the tape and open a package I received.

At this very moment, those keys are in my pocket, purse, or briefcase, or maybe sitting on my desk.

This mental exercise demonstrates the clear differences between merely possessing or carrying an item, and actually using that item.

Of course, our current laws do not fully respect this view of our State Constitution. My goal is to move ever closer toward that full respect with whatever we can pass in any given year. But when questions of what the Utah constitution does or does not allow come up, I try to make clear that I do not believe the constitution gives the people an un-infringable right to carry arms in one phrase, and then takes that right away by giving the legislature power to limit the peaceful carrying of arms before we even reach the end of the sentence.

Charles

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Check out the tripe being spewed by teh media.

http://www.deseretnews.com/article/705359364/Guns-could-be-easily-brandished-under-proposed-law.html

The proposal officially allows Utahns to openly carry firearms and inform others that they are carrying a gun, not currently illegal, but not codified in law. The bill only applies to individuals who have concealed weapons permits.

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SGT Jensen wrote:

Check out the tripe being spewed by teh media.

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If the liberal media (I think that is now a redundancy) is not upset with or horrified at legislation dealing with guns, the odds are pretty good it is bad legislation.

There are three things to do:

1-Call, email, or fax Rep Sandstrom for running this bill. Ask nothing of him, make no suggestions, just tell him thank you and ask if there is anything you can do to help.

2-Contact your own State Rep and Senator and the Governor and ask each of them to support this bill.

3-Mark your calendar for Tuesday, March 23rd from 7:00 to 9:00 pm. Attend the political caucus for the party of your choice (you might give some thought to attending for the incumbent party in your area regardless of how well that party represents all of your views) and either get elected as a county and/or State delegate or support solid pro-RKBA people for those positions.

Don't worry too much about the media. They don't like guns, and haven't for as long as I can recall. We've had 15 years of growing success despite them.

Charles

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While I can certainly appreciate Rep. Sandstrom's work, I think I have to agree with Sam. This, to me, sounds unnecessary and might even confuse things further if it passes as written.

First of my concerns is...

(1) An individual who is not prohibited from doing so by federal or Utah state law may:
(a) openly carry a firearm;

There is nothing in this language that states permit holders may carry openly. I know it is implied, but there will be officers and institutions holding fast to the belief that a permit requires concealment.

Second concern. When did the legislature start telling us what we can do? :? This law will lead some to believe that we did not have this right before the legislature decided it so. I believe laws like these lead us on a slippery slope of permissiveness.

Third concern. If passed as written, how difficult would it be for someone to add the word NOT after may, while doing some "concealed firearm law housekeeping"? Even the modifications being made in HB0214 are troubling to me.

I know it's a long shot, but I believe the best way to handle our firearm law woes would be to repeal 76-10-504, and adopt an Alaska style carry. I know that is not likely to happen any time soon, but a guy can dream, right?

(ETA... I will still never understand the text formatting of WowBB. :X )

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SGT Jensen wrote:

I know it's a long shot, but I believe the best way to handle our firearm law woes would be to repeal 76-10-504, and adopt an Alaska style carry. I know that is not likely to happen any time soon, but a guy can dream, right?

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Too much of a long shot. It would be nice, but I think the better approach is to continue poking small holes in the restrictions until the result is threadbare to the point of silly. At that point it'll be easier to say "Look, this law doesn't actually do anything and just creates confusion and potential problems for law-abiding gun owners; let's just get rid of it."

The tortoise wins the race while the hare is sleeping off his big push.

As for the idea that someone could insert a "NOT" and reverse the meaning of the statute as part of "housekeeping"; that's why we must remain vigilant.

Your point about how it should, perhaps, be clarified with respect to permit holders is a good one. Here's a suggestion: How about you propose the language you'd like to see? We can fiddle with it as a group and, when we're happy with the result, propose it to our representatives.

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utbagpiper wrote:

Of course, our current laws do not fully respect this view of our State Constitution.

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I actually agree with your interpretation, Charles. I was just pointing out that it may not be as clear-cut an issue as we'd like to believe. I think it IS fairly clear, but there's just enough room for antis to argue the point, which makes the constitutional argument less of a slam dunk.

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LovesHisXD45 wrote:

Citizen wrote:

Cite please for police not being able to demand an ID document.

(Many of us know whether the statement is true.Some even know the finer points, for example, whether police can demand an ID under penalty of law if the statute is written one way versus another. The reason for the cite is so any new readers can confirm for themselves whether the information is true.)

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lol... Read 77-7-15 again. The language makes the concept "implied".

Kevin

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"Implied" is not "technically". Also, just because it is not explicit in this statute does not mean it is not covered in another statute.

I'll give you a hint. Have a look at a US Supreme Court case called Hiibel vs 6th Judicial District Ct. In the text of that case, the author cites two other cases, Brown vs Texas, and Kolender vs Lawson. Read those cases, too, and you will be further up to speed on your 5A rights as still recognized by the government in regard to identity demands by police than most police know, based on what I've seen and read.

You do have to watch out for tricky state statutes that satisfy Kolender by authorizing a cop to demand an ID document if the person has one in his possession. I have seen at least one of those as a state statute--there may be more.

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Citizen wrote:

LovesHisXD45 wrote:

Citizen wrote:

Cite please for police not being able to demand an ID document.

(Many of us know whether the statement is true.Some even know the finer points, for example, whether police can demand an ID under penalty of law if the statute is written one way versus another. The reason for the cite is so any new readers can confirm for themselves whether the information is true.)

Click to expand...

lol... Read 77-7-15 again. The language makes the concept "implied".

Kevin

Click to expand...

"Implied" is not "technically". Also, just because it is not explicit in this statute does not mean it is not covered in another statute.

I'll give you a hint. Have a look at a US Supreme Court case called Hiibel vs 6th Judicial District Ct. In the text of that case, the author cites two other cases, Brown vs Texas, and Kolender vs Lawson. Read those cases, too, and you will be further up to speed on your 5A rights as still recognized by the government in regard to identity demands by police than most police know, based on what I've seen and read.

You do have to watch out for tricky state statutes that satisfy Kolender by authorizing a cop to demand an ID document if the person has one in his possession. I have seen at least one of those as a state statute--there may be more.

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This may be so, but in this specific case of a terry stop, according to statute, one may satisfy the requirements of providing identification simply by stating their name, address and an explanation of their actions. I have played out many scenarios in my head of how to handle such an encounter, and I have my bases covered.

If the officer asks for ID, then I will immediately respond with questions as to why I'm being stopped. If he/she cannot quantify their lawful purpose for the stop and a justifiable reason for asking me for visible ID (license etc...), then I will not provide it to them, period. If they ask if I have ID on me, I would simply remain silent. They cannot search me for anything without grounds. Silence is not an admission of guilt or self incrimination and cannot be used as RAS for further investigation or any illegal searches or seizures. Even if you have a concealed weapon on you, and they find it during a frisk, assuming they have RAS that you are a danger to them or others (77-7-16), you don't have to provide your CCW permit to validate your right to conceal it, even if they ask for it. Tell them to confirm your status with dispatch using the name and address you provided to them. You are not required to carry your permit with you to legally conceal a sidearm.

The moral of the story is: if you are stopped by the law in public and questioned, be polite, satisfy the requirements of 77-7-15 after validation of RAS for the stop, and keep your mouth shut if you feel they are acting illegally or harassing you in any way, shape or form. Keep your digital recorder going. Comply with their physical demands, but make it clear that you are doing it against your will and that anything they do is without your consent. If you are a dork and actually doing something bad and got caught, then you will suffer the consequences of your stupidity. If you are just an OCer getting harassed by the law, then it will come back to bite them in the rear end in a way they will not soon forget.

Kevin