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Thread: Manifests intent / warrants alarm

  1. #1
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    Does anyone know the date (or at least the year) when open carry was officially defined as insufficient cause for alarm?

    RCW 9.41.270
    (1) It shall be unlawful for any person to carry, exhibit, display, or draw any firearm, dagger, sword, knife or other cutting or stabbing instrument, club, or any other weapon apparently capable of producing bodily harm, in a manner, under circumstances, and at a time and place that either manifests an intent to intimidate another or that warrants alarm for the safety of other persons.

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    I don't recall the year, but IIRC, it was State vs Casad.
    I am the person responsible for myself, my wife and my son. I take that VERY seriously.

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    State Researcher Bill Starks's Avatar
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    Washington APPEALS Court - State Vs Casad:

    The statute does not and, under the Constitution, cannot prohibit the mere carrying of a firearm in public. Therefore the Court finds that the officers at the time of the initial contact had no reasonable articulable suspicion that any criminal activity was occurring.


    His case started in Nov 2005 with the arrest. The Respondent's brief was completed on Feb 7 2007.

    state vs. Casad: http://forum.nwcdl.org/index.php?act...=downfile;id=9

    Brief: http://www.courts.wa.gov/content/Bri...respondent.pdf


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    NavyLT wrote:
    State vs. Casad is an unpublished opinion, and, therefore can't be considered "official".
    Hey... educate me a little. What makes it unpublished? You can read it, so its been published of sorts, does it have to be in some particular "Law Book" or something like that?

    Also, is that something that could be re-visited? Could it be published in the future?

    So, as of right now, State vs Casad has absolutely no legal standing?
    I am the person responsible for myself, my wife and my son. I take that VERY seriously.

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    Regular Member Lammo's Avatar
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    tyguy808 wrote:
    I don't recall the year, but IIRC, it was State vs Casad.
    The Casad case was decided in 2007 but, sadly, it is an unpublished decision. Unpublished decisions have no precedential valueand cannot be cited to any court as authority in subsequent cases. Having said that, if I were an attorney representinga client charged with violating RCW 9.41.270, I would evaluate my client's case using the language of the Casad case and I would use that language in any brief I filed with the court.

    In Casad, the trial court ruled that Casad was unlawfully detained and suppressed the two rifles and the drugs he was found to be carrying. The State appealed arguing that the stop was lawful to investigate a violation of RCW 9.41.270. The Court of Appeals applied the six factorsoutlined in State v. Spencer, 75 Wash.App. 118, 876 P.2d 939,(Div. 1, 1994),and found that under the circumstances presented it was not reasonable to conclude Casad was violating RCW 9.41.270. The stop was therefore unlawful and the trial court's decision was affirmed.

    The Spencer factors are: (1) the type of neighborhood in which the weapon was carried; (2) the time of day; (3) the urban environment; (4) the manner in which the weapon was carried; (5) the size and type of weapon; and (6) whether the weapon had a visibly attached clip.

    Of course, we all know that a "clip" is a magazine. Spencer included this factor because the court decided that and AK-47 with a visibly attached "clip" was "visibly loaded". Must have had X-ray vision as the case does not state that the magazine was made of clear or smoke plastic. There is also this troubling language in Spencer:

    "Any reasonable person would feel alarmed upon seeing, on a residential street at night, a man carrying a visibly loaded AK-47 assault rifle in an assaultive manner. This alarm would be intensified if the man was walking briskly with his head down and avoiding eye contact with passers-by, as Spencer was doing. Furthermore, our conclusion that Spencer's conduct warranted alarm is supported by the kinds of people who were alarmed in this case, including several firefighters, a police officer, and a passing motorist."

    I don't know how you can be regarded as acting in an "assaultive manner" if you are walking with your "head down and avoiding eye contact" -- I guess I'm just not enough of a panty wetter.

    FWIW, I can guesswhy the court decided not to publish Casad:

    1) Casad was a convicted felon who had not had his firearm rights restored, and

    2) In addition to being a felon in possession of a firearm, Casad was alsoin possession of acontrolled substance without a prescription.

    Not exactly your poster child for Open Carry now, is he.
    IAALBIAAFTDPASNIPHCBCALA
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    Regular Member Lammo's Avatar
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    tyguy808 wrote:
    NavyLT wrote:
    State vs. Casad is an unpublished opinion, and, therefore can't be considered "official".
    Hey... educate me a little. What makes it unpublished? You can read it, so its been published of sorts, does it have to be in some particular "Law Book" or something like that?

    Also, is that something that could be re-visited? Could it be published in the future?

    So, as of right now, State vs Casad has absolutely no legal standing?
    Short answer, the judges writing the decision decide, statute below.

    Sometimes one side or the other will move to publish, not usually granted IIRC. Published opinions are the only ones that make it into the printed books of official reports. IIRC all Supreme Court opinions are published. You can get the unpublishedCourt of Appeals opinionsat the Courts website for about 90 days. Through the magic of Lexis and Westlaw we can access older unpublished opinions without having to physically go through the court files.

    RCW 2.06.040 Panels — Decisions, publication as opinions, when — Sessions — Rules.

    The court shall sit in panels of three judges and decisions shall be rendered by not less than a majority of the panel. In the determination of causes all decisions of the court shall be given in writing and the grounds of the decisions shall be stated. All decisions of the court having precedential value shall be published as opinions of the court. Each panel shall determine whether a decision of the court has sufficient precedential value to be published as an opinion of the court. Decisions determined not to have precedential value shall not be published. Panels in the first division shall be comprised of such judges as the chief judge thereof shall from time to time direct. Judges of the respective divisions may sit in other divisions and causes may be transferred between divisions, as directed by written order of the chief justice. The court may hold sessions in cities as may be designated by rule.

    The court may establish rules supplementary to and not in conflict with rules of the supreme court.

    IAALBIAAFTDPASNIPHCBCALA
    Don't be so open minded that your brains fall out. (John Corapi, The Black Sheep Dog)
    Outside of a dog, a book is a man's best friend. Inside of a dog it's too dark to read. (Groucho Marx)

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    Sooooo.... do we even HAVE anything to officially define open carry as NOT being sufficient to meet the conditions for warranting alarm?

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    Regular Member Lammo's Avatar
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    3/325 wrote:
    Sooooo.... do we even HAVE anything to officially define open carry as NOT being sufficient to meet the conditions for warranting alarm?
    That's the bummer deal about Casad not being published. I just did another quick scan of the opinion and this line jumped out at me: "It is not unlawful for a person to responsibly walk down the street with a visible firearm, even if this action would shock some people."

    That would be beautiful if it were published - - too bad Casad was so "unsympathetic". If anybody gets jacked up for violatingRCW 9.41.270 due to true, responsible, casual open carrywe need to make sure they know about Casad and use the language from it. Just because you can't cite it as authority doesn't mean you can't put it to good use.


    IAALBIAAFTDPASNIPHCBCALA
    Don't be so open minded that your brains fall out. (John Corapi, The Black Sheep Dog)
    Outside of a dog, a book is a man's best friend. Inside of a dog it's too dark to read. (Groucho Marx)

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    Lammo wrote:
    3/325 wrote:
    Sooooo.... do we even HAVE anything to officially define open carry as NOT being sufficient to meet the conditions for warranting alarm?
    That's the bummer deal about Casad not being published. I just did another quick scan of the opinion and this line jumped out at me: "It is not unlawful for a person to responsibly walk down the street with a visible firearm, even if this action would shock some people."

    That would be beautiful if it were published - - too bad Casad was so "unsympathetic". If anybody gets jacked up for violatingRCW 9.41.270 due to true, responsible, casual open carrywe need to make sure they know about Casad and use the language from it. Just because you can't cite it as authority doesn't mean you can't put it to good use.

    Thank you Lammo, for injecting some sense into the argument about the use of Casad. It seems that some people think that since it wasn't published, it doesn't exist, or that the reasoning used is somehow off limits. Of course, ever since some Harvard progressive got the legal community to accept case law over The Constitution, things have been getting stranger and stranger.

    At one time, long long ago, we used to bounce things off The Constitution to determine merit. Now it's a giant ''he said - she said'' of previous opinions, rather than looking to The Constitution itself. Thomas Jefferson's fears of the consequences of an unchecked judiciary were increased exponentially (were he alive still) by this maneuver. Roscoe Pound, I believe, is the name of the progressive who authored this nonsensical injection of politics into the judiciary.

    MD

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    Regular Member sudden valley gunner's Avatar
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    From my understanding Open Carry has always been the right and lawful in this state. Since not listed as illegal it is legal.

    I think that this law is actually a good one although misinterpreted by some. Just like a knife or a baseball bat or any other item that could be used to threaten or intimidate it should be and is illegal to use your firearm to do the same unless the situation, e.g. a crime being committed, warrants it.

    I don't think when this was written it was meant to be directed at open carry but wrongful use of displaying your weapon.
    I am not anti Cop I am just pro Citizen.

    U.S. v. Minker, 350 US 179, at page 187
    "Because of what appears to be a lawful command on the surface, many citizens, because
    of their respect for what only appears to be a law, are cunningly coerced into waiving their
    rights, due to ignorance." (Paraphrased)

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    sudden valley gunner wrote:
    From my understanding Open Carry has always been the right and lawful in this state. Since not listed as illegal it is legal.

    *I think that this law is actually a good one although misinterpreted by some. Just like a knife or a baseball bat or any other item that could be used to threaten or intimidate it should be and is illegal to use your firearm to do the same unless the situation, e.g. a crime being committed, warrants it.

    I don't think when this was written it was meant to be directed at open carry but wrongful use of displaying your weapon.
    Correct on all accounts.

    Spencer was probably the defining case. I tried to contact the attorney for Casad to implore her to try getting the opinion published, but never could hook up with her via telephone.
    Ah, well.

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    Regular Member sudden valley gunner's Avatar
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    Is it too late to get it published? Maybe many of us here from this site can campaign to have it published?
    I am not anti Cop I am just pro Citizen.

    U.S. v. Minker, 350 US 179, at page 187
    "Because of what appears to be a lawful command on the surface, many citizens, because
    of their respect for what only appears to be a law, are cunningly coerced into waiving their
    rights, due to ignorance." (Paraphrased)

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    sudden valley gunner wrote:
    Is it too late to get it published? Maybe many of us here from this site can campaign to have it published?
    Alas, I believe it is.

    At this point, a couple of years down the road, it would take some considerable legal wrangling.



  14. #14
    Regular Member sudden valley gunner's Avatar
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    DARN!!!! It would really help us if it was published. Oh well such is life.
    I am not anti Cop I am just pro Citizen.

    U.S. v. Minker, 350 US 179, at page 187
    "Because of what appears to be a lawful command on the surface, many citizens, because
    of their respect for what only appears to be a law, are cunningly coerced into waiving their
    rights, due to ignorance." (Paraphrased)

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    It is easy guys, if you Open Carry your Firearm it is Legal.

    However, if you Open Carry your Firearm, lets say, after an argument, and then return angry with a Firearm, then, it could be construed as a Crime.

    Remember, this Law is a matter of 'Perception'.

    If you Carry, and you are nice, no Law is broken, however; if you Carry when angry or hostile, then, the Law is broken.

    'Perception' here, is the key to the Crime..., not merely Carry.

  16. #16
    Regular Member sudden valley gunner's Avatar
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    aadvark wrote:
    It is easy guys, if you Open Carry your Firearm it is Legal.

    However, if you Open Carry your Firearm, lets say, after an argument, and then return angry with a Firearm, then, it could be construed as a Crime.

    Remember, this Law is a matter of 'Perception'.

    If you Carry, and you are nice, no Law is broken, however; if you Carry when angry or hostile, then, the Law is broken.

    'Perception' here, is the key to the Crime..., not merely Carry.
    I still think the firearm has to be what is used to intimidate.

    If you are not openly carrying during an heated argument and then return or decide during that argument to open carry than that would be illegal. Because it shows your intent to use your weapon to influence or intimidate.

    On a side note:

    I love the video where Melanie Hain (rest in peace) was arguing with Helmke and he tried to use the argument that being armed gives you more of an advantage in an argument and would change the outcome. Melanie tells him something to the effect of I am armed now do you feel different? (paraphrasing what was said) Gotta love it.
    I am not anti Cop I am just pro Citizen.

    U.S. v. Minker, 350 US 179, at page 187
    "Because of what appears to be a lawful command on the surface, many citizens, because
    of their respect for what only appears to be a law, are cunningly coerced into waiving their
    rights, due to ignorance." (Paraphrased)

  17. #17
    Regular Member sudden valley gunner's Avatar
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    NavyLT wrote:
    sudden valley gunner wrote:
    I still think the firearm has to be what is used to intimidate.

    If you are not openly carrying during an heated argument and then return or decide during that argument to open carry than that would be illegal. Because it shows your intent to use your weapon to influence or intimidate.

    On a side note:

    I love the video where Melanie Hain (rest in peace) was arguing with Helmke and he tried to use the argument that being armed gives you more of an advantage in an argument and would change the outcome. Melanie tells him something to the effect of I am armed now do you feel different? (paraphrasing what was said) Gotta love it.
    I think what he meant to say was that is why police are armed....
    No it wasn't but it would make sense.....LOL.....
    I am not anti Cop I am just pro Citizen.

    U.S. v. Minker, 350 US 179, at page 187
    "Because of what appears to be a lawful command on the surface, many citizens, because
    of their respect for what only appears to be a law, are cunningly coerced into waiving their
    rights, due to ignorance." (Paraphrased)

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