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Thread: Prosecutors planning to charge man in open-carry case

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    http://www.columbian.com/news/2010/mar/30/prosecutors-planning-charge-man-open-carry-handgun/

    Prosecutors planning to charge man in open-carry handgun case

    By Bob Albrecht
    Columbian staff writer

    Tuesday, March 30, 2010


    Vancouver, WA — In a case being closely watched by open-carry gun advocates nationwide, the Vancouver City Attorney’s Office said Tuesday it plans to proceed with its case against a man who was ticketed March 19 for wearing an openly displayed pistol outside an Albertsons shopping center.

    Kurk Kirby, 26, of Vancouver was carrying a total of 35 rounds — including those loaded in the holstered .45-caliber gun and in two magazine clips — when he was ticketed for the crime of unlawful display of a weapon.

    A follow-up investigation into the incident initiated by the city attorney’s office led to the formal charges against Kirby, said Kevin McClure, a supervising prosecutor.

    “We are going forward with the prosecution of the case,” McClure said.

    A notice of appearance filed on behalf of Kirby by Vancouver attorney Christopher Dumm is effectively a not-guilty plea.

    The trial against Kirby is scheduled to begin at 8:30 a.m. May 12.

    “Mr. Kirby and I are obviously disappointed by this decision,” said Dumm, who noted the case has received attention from open-carry advocates. “I’ll probably have to save my arguments for the courtroom.”

     Dumm has advised Kirby not to discuss the case in which a conviction could carry a sentence of up to one year in jail and a $5,000 fine.

    Police say Kirby made no menacing statements or gestures to anyone while he was at the strip mall at 5000 E. Fourth Plain Blvd. He simply stood around near stores for 10 to 15 minutes before someone called 911, according to a Vancouver Police Department report.

    Kirby told officers that he was within his rights to carry the gun, the report said.

    “Washington is an open-carry state,” Dumm previously told The Columbian. “The police deserve my respect and they have it, but nobody is perfect and mistakes are made.”

    The Vancouver police report says officers were called to the strip mall shortly after 4 p.m. March 19, because a store owner had watched Kirby standing around wearing his gun. The man told police he called 911 because he was concerned for his customers, including several small children.

    Three officers approached the supermarket and saw Kirby outside, wearing a skin-tight T-shirt that didn’t cover the large holstered gun.

    The report said the officers contacted him, and one took the gun and extra ammo magazines from him.

    The Springfield Armory XP pistol had a round in its chamber and several more in the magazine snapped into its handle. More cartridges were in the two extra magazines, for a total of 35, the report said.

    “I asked Kirby why he needed to ‘open carry,’ ” an officer reported. “He said he needed to in case he was attacked. I asked if he felt he was going to be attacked today, and he said ‘no’ but maybe tomorrow he would be,” the officer said.

    Kirby’s wife, Dawn Kirby, walked up and told officers she was wearing a concealed gun and had a permit for it, the report said.

    Checking computers for the minivan the Kirbys arrived in, officers learned that the pair had staged an open carry the day before at Westfield Vancouver mall, the report said. It said that security officers had escorted them from the mall and reported they had been “belligerent.”

    After receiving a copy of the ticket, Kirby “said he did not understand what the ‘big deal’ was because he had gone to about 10 different stores in the last several months with his gun in plain view and no one had ever complained,” the report said.

    Kirby didn’t mention being told to leave the mall the day before, police said.

    Bob Albrecht: 360-735-4522 or bob.albrecht@columbian.com.

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    glock23 quoted the article:
    ...Kirby told officers that he was within his rights to carry the gun, the report said...

    ...“I asked Kirby why he needed to ‘open carry,’ ” an officer reported. “He said he needed to in case he was attacked. I asked if he felt he was going to be attacked today, and he said ‘no’ but maybe tomorrow he would be,” the officer said.

    ...After receiving a copy of the ticket, Kirby “said he did not understand what the ‘big deal’ was because he had gone to about 10 different stores in the last several months with his gun in plain view and no one had ever complained,” the report said...

    Kirby didn’t mention being told to leave the mall the day before, police said.
    "Everything you say can and will be used against you..."

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    glock23 wrote:
    Checking computers for the minivan the Kirbys arrived in, officers learned that the pair had staged an open carry the day before at Westfield Vancouver mall
    I don't get this part!

    Is LE tracking law abiding citizen activities? They had on thier computer the information that someone had an activity planned?

    Or are they refering to theircomputer showed a case or incident# of the run in with mall security the day before and matched the plate #?
    Im proudly straight. I'm free to not support Legalization, GLBT, Illegal Aliens, or the Islamization of America.

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    jbone wrote:
    glock23 wrote:
    Checking computers for the minivan the Kirbys arrived in, officers learned that the pair had staged an open carry the day before at Westfield Vancouver mall
    I don't get this part!

    Is LE tracking law abiding citizen activities? They had on thier computer the information that someone had an activity planned?

    Or are they refering to their*computer showed a case or incident*# of the run in with mall security the day before and matched the plate #?
    More than likely it showed an incident involving the plates of their van.
    "A fear of weapons is a sign of retarded sexual and emotional maturity."

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    Regular Member DEROS72's Avatar
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    So if we follow this train of thought.A brady campainer or someone from cease fire could follow you into a Starbucks or anywhere and say he's scaring me even though you have a properly holstered side arm and they will start procecuting folks.Now I'm pissed.....

    Can you imagine how bold cops are going to be with this.

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    DEROS72 wrote:
    So if we follow this train of thought.A brady campainer or someone from cease fire could follow you into a Starbucks or anywhere and say he's scaring me even though you have a properly holstered side arm and they will start procecuting folks.Now I'm pissed.....

    Can you imagine how bold cops are going to be with this.
    Exactly!

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    Regular Member DEROS72's Avatar
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    And police wonder why there is an us vrs.them mentality growing.They have no business enforcing that kind of crap.I have had to occasions where the police were called on me.In both instances ,(these were good cops) they chewed out the person calling because we were or I was within our legal rights.

    We let this stand it will get out of controll.Some of these LE are arogant liberal kiss ups that think they are gods gift and are the only ones that should be allowed to defend themselves.Yet where are they when actuall real crimes go down .I have never seen one stop a crime before it happened.

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    Regular Member DEROS72's Avatar
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    And police wonder why there is an us vrs.them mentality growing.They have no business enforcing that kind of crap.I have had to occasions where the police were called on me.In both instances ,(these were good cops) they chewed out the person calling because we were or I was within our legal rights.Also the State patrol was awesome when Facetelli tried to get us thrown out of the hearing in Olympia.They stood by the law .

    We let this stand it will get out of controll.Some of these LE are arogant liberal kiss ups that think they are gods gift and are the only ones that should be allowed to defend themselves.Yet where are they when actuall real crimes go down .I have never seen one stop a crime before it happened.

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    Regular Member Dave_pro2a's Avatar
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    I guess not having a picnic down there really caused the prosecutor to not file charges.

    Worked awesome.

    I guess, according to Workman's logic, no one should have a demonstration, picnic, or protest down there now... because it might cause the judge to find the guy guilty.

    Just saying
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    Regular Member DEROS72's Avatar
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    I'm beginning to rethink that myself....

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    I think the prosecuter was looking at it from a rock and a hard spot. On the one handI think he might know he will loose in court but if he was to drop the charges then that would encourage more people to open-carry and I dont think they want that at all. IMO I think hes taking hischances in court.

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    http://opencarry.mywowbb.com/forum55/40666-11.html

    And then there were 3 witnesses, and a few other "bumps" thrown in.


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    "The Springfield Armory XP pistol had a round in its chamber and several more in the magazine snapped into its handle. More cartridges were in the two extra magazines, for a total of 35, the report said."

    When did Microsoft team up with Springfield Armory to make a pistol? I wonder if it comes with SP3... lol.

    And why carry an almost unloaded mag? the XD carries 14+1 so if one was in the chamber then one of the mags only has 6 rounds???

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    RCW 9.41.270 says nothing about round count to be allowed or disallowed. Nor does it say anything about the number of magazines carried; not even the number of clips. As a matter of fact there are a whole bunch of terms not found in RCW 9.41.270: Here's a partial list of phrases, words, or terms that are not there.

    appropriate (appropriate is used 10 times in RCW 9.41 but never to describe the behavior of armed citizens)
    brandishing (brandish or brandishing is not anywhere in RCW 9.41)
    causes alarm
    causes ("causes" is not found anywhere in RCW 9.41)
    concealed or any definition thereof (except in .270 (2) loss of concealed pistol license for violation and conviction of (1))
    holster or any discussion thereof (not in any part of RCW 9.41)
    making people nervous
    safe (safety is never used in the context of devices on firearms)
    scaring people ("scare" or "scaring" is not to be found anywhere in RCW 9.41)
    shock or shocked is nowhere to be found in RCW 9.41
    the right to be unafraid
    the right to be free from fear

    I say the above because I believe that the PA is trying the case in the court of public opinion.

    MD

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    Well said Duck. I agree with you.
    "A fear of weapons is a sign of retarded sexual and emotional maturity."

    "though I walk through the valley in the shadow of death, I fear no evil, for I know that you are by my side" Glock 23:40

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    + 1 Duck.
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    ASAP to avoid any further confusion.........

    First comes smiles, then lies. Last is gunfire.

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    1) Pass out jury nullification flyers outside the courthouse. They won't press charges, because they have to show the jurors the actual case law that proves that jury nullification is "real" and lawful. They'll also like to get you out of their hair, so they may realize that it is not in the public's best interest to continue with the kangaroo court.
    2) Mount a phone and fax campaign to the prosecutors office of WA state citizens that feel that it is not in their (and the public's) good to go forward with the charges, and explain why.

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    cynicist wrote:
    1) Pass out jury nullification flyers outside the courthouse. They won't press charges, because they have to show the jurors the actual case law that proves that jury nullification is "real" and lawful. They'll also like to get you out of their hair, so they may realize that it is not in the public's best interest to continue with the kangaroo court.
    2) Mount a phone and fax campaign to the prosecutors office of WA state citizens that feel that it is not in their (and the public's) good to go forward with the charges, and explain why.
    They would declare a mistrial, and hold you in contempt of court

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    They would declare a mistrial, and hold you in contempt of court
    Not if you just do it outside the court. They may declare a mistrial is they can prove something wrong in happened in the trial, but they don't want to risk poisoning all the other victimless crime prosecutions by supporters passing out fliers around the time of the next trial.
    It's been done before, and they've filed charges of jury tampering, but they couldn't figure out a way to show the jury the evidence (fliers about jury nullification, its legal precedent, its use in American history, what the Founders said about it, and why the prosecutor and judge don't want you to know about it) and still convince them to convict of jury tampering.

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    DEROS72 wrote:
    .Some of these LE are arogant liberal kiss ups that think they are gods gift and are the only ones that should be allowed to defend themselves..
    Because conservative police officers wouldn't do such a thing right? Most LEO's that I have met that are against civilians carrying handguns are conservative bible-thumpers.

    Yes, you did say "some." Are you saying then that "most" are conservatives?


    I don't mind watching the OC-Community (tea party 2.0's, who have hijacked the OC-Community) cannibalize itself. I do mind watching OC dragged through the gutter. OC is an exercise of A Right. I choose to not OC; I choose to not own firearms. I choose to leave the OC-Community to it's own self-inflicted injuries, and eventual implosion. Carry on...

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    antispam540 wrote:
    cynicist wrote:
    1) Pass out jury nullification flyers outside the courthouse. They won't press charges, because they have to show the jurors the actual case law that proves that jury nullification is "real" and lawful. They'll also like to get you out of their hair, so they may realize that it is not in the public's best interest to continue with the kangaroo court.
    2) Mount a phone and fax campaign to the prosecutors office of WA state citizens that feel that it is not in their (and the public's) good to go forward with the charges, and explain why.
    They would declare a mistrial, and hold you in contempt of court
    It's a small town. It'd be easy to mail a flyer about jury nullification to almost all the residents.

    That would be a free, educational service, about a very real and established Right.
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    Dave_pro2a wrote:
    antispam540 wrote:
    cynicist wrote:
    1) Pass out jury nullification flyers outside the courthouse. They won't press charges, because they have to show the jurors the actual case law that proves that jury nullification is "real" and lawful. They'll also like to get you out of their hair, so they may realize that it is not in the public's best interest to continue with the kangaroo court.
    2) Mount a phone and fax campaign to the prosecutors office of WA state citizens that feel that it is not in their (and the public's) good to go forward with the charges, and explain why.
    They would declare a mistrial, and hold you in contempt of court
    It's a small town. It'd be easy to mail a flyer about jury nullification to almost all the residents.

    That would be a free, educational service, about a very real and established Right.

    Huh? Vancouver? 163,000 and Clark County nearly 500,000????

    Live Free or Die!

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    Did I ever mention that I have had many wonderful conversations (and am on a first name basis) with Iloilo Jones?

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    Regular Member Dave_pro2a's Avatar
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    gogodawgs wrote:
    Dave_pro2a wrote:
    antispam540 wrote:
    cynicist wrote:
    1) Pass out jury nullification flyers outside the courthouse. They won't press charges, because they have to show the jurors the actual case law that proves that jury nullification is "real" and lawful. They'll also like to get you out of their hair, so they may realize that it is not in the public's best interest to continue with the kangaroo court.
    2) Mount a phone and fax campaign to the prosecutors office of WA state citizens that feel that it is not in their (and the public's) good to go forward with the charges, and explain why.
    They would declare a mistrial, and hold you in contempt of court
    It's a small town. It'd be easy to mail a flyer about jury nullification to almost all the residents.

    That would be a free, educational service, about a very real and established Right.

    Huh? Vancouver? 163,000 and Clark County nearly 500,000????
    So Clark County has fewer residents than Seattle. Fewer residents than Portland.

    ::shrug:: I've done mass mailings in places that size (and much larger), it's easy and not too expensive.

    You would use a data purchasing services to drill it down to residents most likely toactually serve onJury Duty, based on age, employment, tax bracket, credit, education, et cetera. Just find the archetype citizen that the DA likes to have on a jury (there really is one), determine a few key characteristics of that archetype, and buy data for that archetype. Ordetermine the characteristicsof a person that the DA does not like on a jury, and filter those characteristicswhen buying data.

    In other words, you can skip all the Spanish speaking illegal immigrants, everyone over 70, anyone with incomes below 20k, anyone with a graduate degree, etc. Wouldn't those first two items eliminate half of Vancouver (j/k)

    I'm a business man. I make money. I look for creative, legal solutions to problems.

    Expense and man-hours can often be controlled with little effort. I already gave one example of that, i.e. data purchasing. Another example would be to have all the information crunched, and the mailings printed and prepared, in a less expensive location (think India). Another example would be to form a legitimate 501c3 (it isn't that hard or expensive), even if it's only going to exist for a short period of time. Then use that501c3 to get non-profit mailing rates, which can save you 40% off regular postage rates. To reduce postage rates even more, use a postcard format, becauseit's almost half the cost of mailing aenvelope.

    Think outside the box, get creative, find loopholes, and use money as a tool.

    If I felt motivated to hand out truthful and legal literature in front of a court house, and a judge tried to lock me up, then yes I'd spend 5-10k on doing a direct mail campaign just for spite (and fun). I've done worse for less


    "I'm just a no-account screed-peddler" Dave Workman http://goo.gl/CNf6pB

    "We ought to extend the [1994] assault weapons ban" George W Bush

    "The Bush Administration declared a permanent ban today on almost all foreign-made semiautomatic assault rifles." George Bush Sr, New York Times on July 8, 1989

    "I support the Brady bill and I urge the Congress to enact it without delay." Ronald Regan.

    "Guns are an abomination." Richard Nixon

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    I don't understand why people are promoting jury nullification in this instance. The implication is that there is some law that the OCer violated. However, from what I read, it's not the law that's at controversy, it's the actions of the OCer (did he have his hand on his pistol?).

    If this took place in a state like New York or Texas, then it would seem like jury nullification would be a more appropriate strategy to pursue.

    If people promote jury nullification, doesn't that imply that all open carry is illegal? What am I missing?

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