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Thread: Lawful Carry of Weapons Act

  1. #1
    Regular Member sudden valley gunner's Avatar
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    Any suggestions help or comments appreciated.


    Lawful Carrying Of Weapons Act


    Purpose:

    The following bill comes in response to violations by local governments of RCW 9.41.300, the Preemption Statute, and also in response to incidents of harassment by law enforcement aimed at people who lawfully carry weapons, especially those who carry pistols openly. It is aimed at addressing illegal conduct by public officials.


    Findings:

    The right to carry a firearm for protection in Washington State is protected from government impairment by Article 1 Section 24 of the Washington State Constitution; RCW 9.41.300, the Preemption statute; and RCW 9.41.050, which requires a Concealed Pistol License to carry a pistol concealed, but not to carry a firearm openly.

    The right of United States citizens to keep and bear arms is likewise a fundamental civil right protected by the Bill Of Rights in the United States Constitution.

    Despite these protections, several counties and localities in Washington State have enacted restrictions on lawful carrying of firearms on non-secured public premises, in direct violation of RCW 9.41.300.

    Furthermore, persons who lawfully carry weapons, especially those who carry pistols openly, have faced unjustified scrutiny, harassment, and sometimes threats from law enforcement and public officials. Some of these incidents have involved police officers drawing guns on people who have broken no laws and done nothing to warrant alarm, thus endangering lives without justification of any kind. This behavior is especially inexcusable considering that every law enforcement agency in the state has been made aware of the lawful nature of carrying weapons either openly, or concealed with a license.

    The law provides for situations in which stops, detentions, and searches are acceptable. In the Terry v. Ohio decision, the United States Supreme Court ruled that the Fourth Amendment prohibition on unreasonable searches and searches and seizures in not violated when a police officer stops a suspect on the street and searches him without probable cause to arrest, if the police officer has a reasonable suspicion that the person has committed, is committing, or is about to commit a crime. This reasonable suspicion must be based on “specific and articulable facts” and not merely upon an officer’s hunch. In Washington State however, this guideline is frequently violated by officers who seek to harass and intimidate people who lawfully carry firearms, especially openly.

    The Legislature finds that RCW 9.41.300 and RCW 9.41.050 should be amended to provide penalties under law for public officials who violate those sections to the detriment of a citizen’s fundamental civil right to carry a weapon for protection.


    Lawful Carrying Of Weapons Act

    BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:


    SECTON 1:

    RCW 9.41.300 is amended as follows:

    (1) The state of Washington hereby fully occupies and preempts the entire field of firearms regulation within the boundaries of the state, including the registration, licensing, possession, purchase, sale, acquisition, transfer, discharge, and transportation of firearms, or any other element relating to firearms or parts thereof, including ammunition and reloader components. Cities, towns, and counties or other municipalities may enact only those laws and ordinances relating to firearms that are specifically authorized by state law, as in RCW 9.41.300, and are consistent with this chapter. Such local ordinances shall have the same penalty as provided for by state law. Local laws and ordinances that are inconsistent with, more restrictive than, or exceed the requirements of state law shall not be enacted and are preempted and repealed, regardless of the nature of the code, charter, or home rule status of such city, town, county, or municipality.

    (2) Any public official or police officer who enacts, or fails to repeal any ordinance, rule, or other restriction in violation of Section (1), and orders, initiates, or participates in enforcement action of such ordinance or rule, shall be guilty of the crime of Abuse Of Office.




    SECTION 2:

    RCW 9.41.050, “Carrying Firearms,” is amended to include:

    (5) Any police officer or other public official who illegally arrests, detains, intimidates, or otherwise harasses a person for lawfully carrying or possessing a firearm either openly or concealed, or who orders or directs such action, with or without the intent of dissuading that person or others from exercising the lawful right to carry a weapon, when that person has committed no crime, and done nothing to warrant alarm for the safety of others, and no other reasonable cause exists for such action, shall be guilty of the crime of Abuse Of Office.




    SECTION 3:

    NEW SECTION: (1) In cases where sufficient evidence exists to prosecute violations under Section 1 (2), or Section 2 (5), the Prosecuting Attorney with jurisdiction shall file charges and prosecute. “Evidence” shall include such evidence that may be obtained by the Prosecutor from the crime victim or other private sources, as well as evidence that is obtained from police.

    (2) Any police officer or other public official found guilty under Section 1 (2), or Section 2 (5), shall be ineligible to work in law enforcement in Washington State for a period of five years from the date of conviction.


    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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    I think it kicks ass. But then I wrote most of it... One thing that didn't come through right, in Section 1, subsection 2 should be underlined since that's the new addition.

    You should be voted to be the official OCDO rep on this project.

    Oh yeah, we still need to run this past the Bellingham PD for comment too.

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    Regular Member Aryk45XD's Avatar
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    Agreed, kicks ass overall. Great job guys.

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    Regular Member sudden valley gunner's Avatar
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    One of the main things I hear from many people is that they would open carry but fear of the local Police stops them from carrying.

    KShmadeka gets all credit for drafting this up.
    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)

  5. #5
    Regular Member Bobarino's Avatar
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    send it on to Pam Roach. she may even introduce it. i think she's the only one that would.

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    Regular Member 5jeffro7's Avatar
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    fifth paragraph under findings....

    ....search and seizure IS not violated....

    is needs to be substituted for in

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    You run into a separation of powers issue whenever the legislature attempts to compel the executive (the prosecuting attorney) to prosecute someone.

    Also, as written, the statute would criminalize non-action, if the council members refused to repeal a preempted ordinance. This is very disfavored in the law, which typically only criminalizes affirmative acts, not failures to act.

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    If it criminalizes police enforcement of pre-empted acts, it would probably be sufficient. Then the city/county government would be under pressure from the police department to change the laws.

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    olypendrew wrote:
    You run into a separation of powers issue whenever the legislature attempts to compel the executive (the prosecuting attorney) to prosecute someone.
    I see where that could be an issue... Of course the reason for that sectionis that no prosecutor will file such charges against a police officer willingly. Do you have any alternate suggestions for making sure the case gets properly charged?

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    most of this is already covered by RCW 9A.36.070 COERCION.

    All you have to do is get a gummint goon to swim against the current and actually PROCECUTE those who violate the law.

    Good luck.

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    Phssthpok wrote:
    most of this is already covered by RCW 9A.36.070 COERCION.

    All you have to do is get a gummint goon to swim against the current and actually PROSECUTE those who violate the law.
    Much of illegal police conduct is also covered under http://apps.leg.wa.gov/RCW/default.aspx?cite=9A.80.010. But that's the trick, getting it prosecuted, and that's the whole idea here. Declining to prosecute can even be considered "official misconduct" but who prosecutes the prosecutor for that? In theory I suppose the AG would, but that just makes for a nice theory. Hence the need for teeth in the law.

    One thing that might help get it moving would be if SVG had a nice bigstack of one-page reports from OC'ers about their LE encounters.

  12. #12
    Regular Member sudden valley gunner's Avatar
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    olypendrew wrote:
    You run into a separation of powers issue whenever the legislature attempts to compel the executive (the prosecuting attorney) to prosecute someone.

    Also, as written, the statute would criminalize non-action, if the council members refused to repeal a preempted ordinance. This is very disfavored in the law, which typically only criminalizes affirmative acts, not failures to act.
    So strike most of section 2)

    Is separation of powers also eliminating checks and balances, which I am a strong supporter of and why I don't think groups like IRS should be armed and have their own law enforcement agency.

    What if it was changed to where it simply made it a crime to violate these rights but didn't compel the executive to prosecute?

    After talking to Olypendrew and meeting him this last weekend I put full trust in his knowledge of the law and how he stands on certain matters.

    Edit:
    Wow the last few posts didn't show up before I wrote mine. Pssshook is right it is covered. The trick is actually getting criminal charges pressed against law breaking Law Enforcers.


    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)

  13. #13
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    In Section 1 paragraph 2, the official has to both enact or fail to repeal the ordinance that violates preemption, AND order, initiate, or participate in enforcement action. Though I suppose that part might work better if it only criminalized the enforcement of the illegal ordinance.

    If the bill doesn't somehow compel prosecutions, or provide another avenue for prosecutions, then there just won't be any prosecutions. If we can't come up with something there, then maybe some really undesirable civil penalty provision would be the way to go. Though a realcriminal prosecution would be preferable.

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    Regular Member amzbrady's Avatar
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    Once you get that thru, go fix 9.41.270 (and at a time and place that either manifests an intent to intimidate)IfI have to draw my weapon, I would hope that it would intimidate the person that has forced me to unholster, so that he wouldflee and not make me shoot. And then change(another or that warrants alarm for the safety of other persons.) Make it more concise, so that the other Brady's cant call cops when they feel intimidated outside of their gated communities.
    If you voted for Obama to prove you are not a racist...
    what will you do now to prove you are not stupid?

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    Regular Member Batousaii's Avatar
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    Something like:(1) It shall be unlawful for any person to aggressively and intentionally draw, point, or assertivelyhandle 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 victimise an innocent person, or that intentionally and willfully jeopardises the safety of other persons who are innocent in their capacities.
    ~ ENCLAVE vmc ~
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    Batousaii wrote:
    Something like:(1) It shall be unlawful for any person to aggressively and intentionally draw, point, or assertivelyhandle 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 victimise an innocent person, or that intentionally and willfully jeopardises the safety of other persons who are innocent in their capacities.
    That is as bad as what is already in place. Better an animal you know than a creature that is as bad but in a different way.

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    Regular Member Batousaii's Avatar
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    Bear 45/70 wrote:
    Batousaii wrote:
    Something like:(snip for size)
    That is as bad as what is already in place. Better an animal you know than a creature that is as bad but in a different way.
    Rather than just spitting at it, why dont you suggest something better ?
    ~ ENCLAVE vmc ~
    The Enclave is looking for patriotic motorcycle riders in Washington State who support liberty and freedom for all. ~ Check us out!
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    * " To be swayed neither by the opponent nor by his sword is the essence of swordsmanship." - Miyamoto Musashi.

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    Regular Member 1245A Defender's Avatar
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    Batousaii wrote:
    Something like:(1) It shall be unlawful for any person to aggressively and intentionally draw, point, or assertivelyhandle 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 victimise an innocent person, or that intentionally and willfully jeopardises the safety of other persons who are innocent in their capacities.
    in its "wordyness" it is kinda sloppy in getting to the point! BUT
    it is a HUGE improvement over the current 270!
    there are way more weapons of "real bad hurt and death" than just guns!
    im behind your new 270, its major BETTER!
    :celebrate :celebrate :celebrate :celebrate :celebrate
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  19. #19
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    That would probably be the subject of a separate bill, since this one is aimed at official misconduct. Though curiously, section 3 of 9.41.270 says:

    (3) Subsection (1) of this section shall not apply to or affect the following:

    (a) Any act committed by a person while in his or her place of abode or fixed place of business;

    Apparently it's legal to whip out a gun and threaten people in your home or business... should we fix that or keep it in reserve for some Brady's??? :shock:

    On the subject of separation of powers, prosecutor's refusal to charge police officers or public officials is the root of a whole lot of evil. I'm fine with the legislature requiring action of them in that regard, if it can be done. It's at least worth the attempt before we have to water the bill down.

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