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Thread: Federal Court Rules Open Carrying Disorderly

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    Forgive me if this was already posted. I could not find it with the search feature here.

    http://www.georgiacarry.org/cms/2010...ng-disorderly/



    Not good. :X

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    WTF? I open carry all the time. Noone panics. Noone has called police. I have bumped into officers and they are not even concerned. These judges are insane.

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    BROKENSPROKET wrote:
    WTF? I open carry all the time. Noone panics. Noone has called police. I have bumped into officers and they are not even concerned. These judges are insane.
    I can only think this is something that gets turned over since there is a plethora of evidence/history to the contrary.

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    How can you win an argument if you don't cite any authority? Looks like a new attorney is needed.



    Plaintiff asserts that the Village of West Milwaukee and the City of Chilton violated his Fourth and Fourteenth Amendment rights by failing to timely return the firearms that the officers seized as evidence. However, this contention fails because plaintiff does not meaningfully develop a legal argument in support of it. Plaintiff asserts that the municipalities are liable for wrongful retention of his property, but he does not argue the point or cite any authority

    Don

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    wow............

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    CommonMan101 wrote:
    Forgive me if this was already posted. I could not find it with the search feature here.

    http://www.georgiacarry.org/cms/2010...ng-disorderly/



    Not good. :X
    Too Bad! This seems in contradiction to current case law already established under Lund vs Salt Lake City. Although I do recognize the court did have a different set of local laws to consider as part of the ruling. Footnote 9 reads:


    "By itself, mere possession of a firearm in public is not unlawful and may well represent the exercise of a fundamental constitutional right guaranteed by the Second Amendment to the United States Constitution and Article I, § 6 of the Utah Constitution (recognizing 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,” subject to the power of the Legislature to define the “lawful use of arms.”). See District of Columbia v. Heller, 128 S. Ct. 2783, 2799 (2008) (“There seems to us no doubt, on the basis of both text and history, that the Second Amendment conferred an individual right to keep and bear arms.”); see also Utah Code Ann. §§ 76-10-500 to 530 (2003 & Supp. 2008) (Utah Firearms Act).Salt Lake City’s asserted governmental interest in its police officers’ response to a report of a “man with a gun” in a public park cannot be weighed in isolation from this oft-emphasized public policy. In that context, there may well be more individual constitutional rights at stake than the Fourth Amendment freedom from unreasonable searches and seizures."




    Or Matthew A St John Vs Alamagordo police dept:


    "Moreover, Mr. St. John's lawful possession of a loaded firearm in a crowded place could not, by itself, create a reasonable suspicion sufficient to justify an investigatory detention. For example, in
    United States v. Ubiles, 224 F.3d 213 (3rd Cir. 2000), the Third Circuit found that an individual's lawful possession of a firearm in a crowded place did not justify a search or seizure. In Ubiles, officers seized Ubiles during a crowded celebration after they received a tip that he was carrying a gun. Id. at 214. Officers did so even though no applicable law prohibited Ubiles from carrying a firearm during the celebration. Id. at 218. Holding that the search violated Ubiles' Fourth Amendment rights, the court noted that the situation was no different than if the informant had told officers "that Ubiles possessed a wallet . . . and the authorities had stopped him for that reason." Id. Nor, the court continued, could the officers rely on the fact that Ubiles possessed the weapon while in a crowd. Id. at 219. "[Otherwise], citizens farming under the open skies of Washington or Vermont would generally have greater Fourth Amendment protections than their compatriots bustling to work in Manhattan or Boston. As a general proposition of constitutional law, this cannot be so . . . . " Id."

    It also goes on to quote:

    "Relying on well-defined Supreme Court precedent, the Tenth Circuit and its sister courts have consistently held that officers may not seize or search an individual without a specific, legitimate reason. See Terry, 392 U.S. at 21; Fuerschbach,439 F.3d at 1204-6 (holding that a seizure without a reasonable suspicion of criminal activity "would violate the most minimal Fourth Amendment standard"); Jones v. Hunt, 410 F.3d at 1228 ("Where no legitimate basis exists for detaining [an individual], a seizure is plainly unreasonable."); Duran, 904 F.2d at 1378 ("If there is one irreducible minimum in our Fourth Amendment jurisprudence, it is that a police officer may not detain an individual simply on the basis of suspicion in the air. No matter how peculiar, abrasive, unruly or distasteful a person's conduct may be, it cannot justify a police stop unless it suggests that some specific crime has been, or is about to be, committed or that there is an imminent danger to persons or property."); see also Lawrence Rosenthal, Second Amendment Plumbing after Heller: Standards of Scrutiny, Incorporation, Well-Regulated Militias, and Criminal Street Gangs, 41 Urb. Law. 1, 37 (2009) (“When applicable law does not ban carrying a firearm, however, the Fourth Amendment does not permit a stop-and-frisk regardless of any indication that a suspect is armed or potentially dangerous because there is no indication that the suspect is violating the law.”)."

    http://www.examiner.com/x-2782-DC-Gun-Rights-Examiner~y2009m9d9-Federal-judge-rules-police-cannot-detain-people-for-openly-carrying-guns



    Looks to me like the judge in the OP got it wrong.

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    CommonMan101 wrote:
    Forgive me if this was already posted. I could not find it with the search feature here.

    http://www.georgiacarry.org/cms/2010...ing-disorderly
    well, arguably disorderly, and officer wold get qualified immunity anyway - not a good decision, but not a definitive ruling that OC is disorderly either

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    The original thread is thirteen month old and four pages long, contains the link URL to the decision and discussion with the attorney of record.

    http://opencarry.mywowbb.com/forum57/24545.html

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    This needs to be appealed and the arguments heard.

    This cannot be left to stand.

    If so it will definately be a huge step backwards for this movement.

    It may not seem like it now but in time it will be simply an in for LEO to harass OCers.

    Maybe arguing for an unfair hearing is in order.

    I find it hard to believe that Monroe would sit there and not argue the case.

    I think it was more of a case where the judge ignored the facts and went a long with the other side simply because he hand his hand caught in the pockets of the defendants and made it hard to........ "WAVE." If you know what I mean.

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    I don't remember, are these judges elected or appointed?

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    wow..... makes me lose more faith in our justice system and society as a whole.

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    Like Doug said, major discussion was already taking place here: http://opencarry.mywowbb.com/forum57/24545.html

    It's hard tokeep track of stuff whendiscussion gets fragmented between a number of different topics.

    I will say this here; that I think that this overbroad reading of DC will hurt more than just OC. This gives officers free reign to arrest anyone for almost anything that someone could possibly find disorderly. The case may be thrown out by the DA but the officer still would have had his probable cause to search and sieze anything in your immediate vicinity and go on a fishing expedition to find anything else that could possibly be construed as "illegal".

    This is the problem with any law that takes into account "reasonable" or "reasonable person". It's ambiguous and allows judges to legislate from the bench. It's no doubt that every judge believes himself/herself to be a reasonable person when; in fact, many of them are far from it.

    Not only do we need to change the gun laws in this state but we need a clear and concise definition of Disorderly Conduct. Still, it's worth being said that openly carrying a weapon should have been found as "protected conduct" under the current DC statute anyway being that we are gauranteed that right by our state constitution.
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    J.Gleason wrote:
    This needs to be appealed and the arguments heard.
    not necessarily - to some extent we win just by bringing civil litigation - and civil litigation is not easy - note how the judge interposed the doctrine of qualified immunity as an alternative ground to dismiss the suit -an appeal would have to overcome2 trial court rulings - and further, when bringing the litigtion in a federal court, which must look at state law, federal courts appear to not want to consture state law for the state - I realize this seems unfair, but this is our justice system - and we win by simply engaging it to bring scrutiny on the state officials.

    PS. One of things I noted was the allegation in the opinion that Plaintiff became upset when asked to leave a store - this is one theme that keeps coming up when open carriers get into legal trouble - when asked to leave private properly, you need to immediately leave, and leave with a smile on your face. Do open carriers understand the public-private distinction in our law? They need to ASAP.

    You are carrying a gun - anything you say or do will be used against you in the worst light - and the words twisted to indicate a refusal to leave or loitering or that you were causing a disturbance or worse - one man in Ohio protested leaving a fast food restaurant and claimed to be trying to give out a pamphlet to the manager - she turned around and said he swore at her and put his hand on his gun - apparently his criminal charge is lingering - had he just nicely said, "Oh, OK, I'm leaving, have a nice day" things might have turned out differently.

    And this touching the gun thing is another theme now recurring in the Washington scary carry case ongoing - it has been said here many times that discreet open carry is the goal - you should arrange yourself to never touch your gun, and keep your pocket and wallet items accesible such that you do not have to appear to touch your gun when reaching for these items - and carry somthing in your carry hand, keys, newspaper, cup of coffee - then its much more difficult to be accused of touching your gun while in public - the security cameras will show as much and possible witnesses accusing you will be confronted with the reality that you had somthing else in your carry hand so its likley they are mistaken.

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    I see your points, but won't this decision also set a precident? Setting the movement back once these over zealous LEO's start citing for DC simply because they can.

    There are plenty of over zealous DA's out there as well that will jump on the band wagon no matter what the AG has to say. The final say will be left to a judge.

    While AG opinions are binding to the state they are not binding to a court or a judge.

    And I cannot agree with you more on the hands off the gun issue. If a OCer has not gotten themself passed the point of having to touch the firearm then they should not OC in public until they do. It is a bad habit that needs to be broken as soon as possible.

    Your suggestion of carrying something in your strong hand is a great idea. In the event of an emergency you can always drop what is in your hand.

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    we need a clear and concise definition of Disorderly Conduct.
    What would your definition of Disorderly Conduct be? I know we all would like one but I doubt that anyone could come up with a definition that you could get even 10% of the population to agree on. Much like the definition of Pornography, "I can't tell you what it is but I know it when I see it".

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    PT111 wrote:
    we need a clear and concise definition of Disorderly Conduct.
    What would your definition of Disorderly Conduct be? I know we all would like one but I doubt that anyone could come up with a definition that you could get even 10% of the population to agree on. Much like the definition of Pornography, "I can't tell you what it is but I know it when I see it".
    You may be right in that you could never get a perfectly clear and concise definition but we could definitely make it better by rewriting it just a bit, which should also effectively eraseand then selectively incorporate the case law that goes along with the current statute.

    Here it is as stands:
    947.01 Disorderly conduct.

    Whoever, in a public or private place, engages in violent, abusive, indecent, profane, boisterous, unreasonably loud or otherwise disorderly conduct under circumstances
    in which the conduct tends to cause or provoke a disturbance is guilty of a Class B misdemeanor.
    First, let's erase the "otherwise disorderly conduct" part. That's the part where anything and everything can be considered DC.

    Which changes it to this:


    Whoever, in a public or private place, engages in violent, abusive, indecent, profane, boisterous, unreasonably loud conduct under circumstances in which the conduct tends to cause or provoke a disturbance is guilty of a Class B misdemeanor.

    Now lets add a little something from the previous case law:

    Whoever, in a public or private place, engages in constitutionally unprotectedviolent, abusive, indecent, profane, boisterous, unreasonably loud conduct under circumstances in which the conduct tends to cause or provoke a disturbance is guilty of a Class B misdemeanor.


    That keeps the burden of proof squarely on the shoulders of the state.

    Now, if it was only my opinion, I'd exempt private places from it and it would read like this:

    Whoever, in a public place, engages in constitutionally unprotectedviolent, abusive, indecent, profane, boisterous, unreasonably loud conduct under circumstances in which the conduct tends to cause or provoke a disturbance is guilty of a Class B misdemeanor unless that conduct is engaged in while exercising.

    After all, whats done in private isn't anyone elses business as long as it conforms with any other constitutionally defendable laws.
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    I think you guys are wringing your hands more than necessary about this decision. This case wasn't about what constitutes disorderly conduct in Wisconsin. A federal judge cannot make that determination unless it concerns an issue contrary to the U.S. Constitution. His opinion of whether anything Jesus did was disorderly sets no legal precedence.

    Only a Wisconsin court system judge can interpret Wisconsin law and offer a precedent setting opinion of whether certain behavior is disorderly.

    The main issue in this lawsuit was whether the search and seizure was proper.
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    Shotgun wrote:
    I think you guys are wringing your hands more than necessary about this decision. This case wasn't about what constitutes disorderly conduct in Wisconsin. A federal judge cannot make that determination unless it concerns an issue contrary to the U.S. Constitution. His opinion of whether anything Jesus did was disorderly sets no legal precedence.

    Only a Wisconsin court system judge can interpret Wisconsin law and offer a precedent setting opinion of whether certain behavior is disorderly.

    The main issue in this lawsuit was whether the search and seizure was proper.
    I'm done with the hand wringing and only offering speculative discussion at this point.

    I agree with what you are saying about the federal courts authority on the state statute but the problem still remains that because the statute is overbroad it allowed the federal judge to say that the search and seizure was proper. It gave him the loophole he needed for his activisim. I still say it's activism because it should have been considered a constitutionally protected act

    The federal judge saying that the search and seizure was proper is the major issue to me. I still think they should have retained qualified imunity but the search and seizure was definitely NOT proper.
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    Now, if it was only my opinion, I'd exempt private places from it and it would read like this:

    Whoever, in a public place, engages in constitutionally unprotectedviolent, abusive, indecent, profane, boisterous, unreasonably loud conduct under circumstances in which the conduct tends to cause or provoke a disturbance is guilty of a Class B misdemeanor unless that conduct is engaged in while exercising.

    After all, whats done in private isn't anyone elses business as long as it conforms with any other constitutionally defendable laws.
    So if someone comes over to you house and starts cussing and all of that stuff and you try to run the off but they won't leave or shut up, then they can't be arrested for Disorderly Conduct. What could you charge them with, tresspassing, disturbing the peace.......?

    We also have to look as the definition of public place as several have posted that only government property is public property and everything else is private.

    W also need definitions for boisterous, profane, indecent abusive and violent. :?

    And we haven't even started on constitutionally unprotected

    It gets more confusingwith everypost.

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    PT111 wrote
    We also need definitions for boisterous, profane, indecent abusive and violent. :?

    sounds just like a good night of sex to me

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    Shotgun wrote:
    I think you guys are wringing your hands more than necessary about this decision. This case wasn't about what constitutes disorderly conduct in Wisconsin. A federal judge cannot make that determination unless it concerns an issue contrary to the U.S. Constitution. His opinion of whether anything Jesus did was disorderly sets no legal precedence.

    Only a Wisconsin court system judge can interpret Wisconsin law and offer a precedent setting opinion of whether certain behavior is disorderly.

    The main issue in this lawsuit was whether the search and seizure was proper.
    The Federal Judge doesn't make law in WI, but this case is a strong indicator of what cops can get away with. Now they know that arresting for someone for open carrying a handgun will not result in a civil rights violation.

    I disagree that the case was about the search.Adan gave them permission for the search and due to the DC charge they had PC to perform a search of the vehicle.

    This case was about the right to bear arms in WI. The judge failed when hesigned the orderfor summary judgement to the defendants. I'm sorry to say, but the right to bear arms in WI is non-existant if the federal court didn't rule for the plantiff. Police can now charge and arrest anyone who carries openly with no fear of damages in civil rights lawsuits.I hope they can afford to appeal, while they wait McDonald v Chicagocould decidethere is a right to bear arms.

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    The Federal Judge doesn't make law in WI, but this case is a strong indicator of what cops can get away with. Now they know that arresting for someone for open carrying a handgun will not result in a civil rights violation.
    Not true. What this means is that a case at the district level heard by Judge Adelman will not result in a civil rights violation.

    The precedent is not binding, its a poorly written decision, the decision is not published. Another federal district judge even in the same district is free to decide differently. An appellate court, the same.

    This case was about the right to bear arms in WI.
    only in the most tangential of contexts

    I'm sorry to say, but the right to bear arms in WI is non-existant if the federal court didn't rule for the plantiff.
    Again, you are categorically wrong (though I may cut you a little slack on this one because you aren't familiar with Wisconsin's state constitution) Wisconsin's state constitution guarantees us the right to keep and bear arms for security, self defense, hunting, recreation and any other lawful purpose.

    You are drastically misrepresenting this decision.
    www.wisconsincarry.org Wisconsin Carry, Inc. is not affiliated with opencarry.org or these web forums. Questions about discussion forum policy or forum moderation should be directed to the owners of opencarry.org not Wisconsin Carry, Inc.

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    Wisconsin Carry, Inc. - Chairman wrote:
    The Federal Judge doesn't make law in WI, but this case is a strong indicator of what cops can get away with. Now they know that arresting for someone for open carrying a handgun will not result in a civil rights violation.
    Not true. What this means is that a case at the district level heard by Judge Adelman will not result in a civil rights violation.

    The precedent is not binding, its a poorly written decision, the decision is not published. Another federal district judge even in the same district is free to decide differently. An appellate court, the same.

    This case was about the right to bear arms in WI.
    only in the most tangential of contexts

    I'm sorry to say, but the right to bear arms in WI is non-existant if the federal court didn't rule for the plantiff.
    Again, you are categorically wrong (though I may cut you a little slack on this one because you aren't familiar with Wisconsin's state constitution) Wisconsin's state constitution guarantees us the right to keep and bear arms for security, self defense, hunting, recreation and any other lawful purpose.

    You are drastically misrepresenting this decision.

    It isn't binding, but now we know and cops know that at least one federal judge doesn't give a damn about your right to carry a handgun in WI. Apparently your constitution means nothing because as the judge stated, "The Supreme Court has never held that the Second Amendment protects the carrying of guns outside the home. See District of Columbia v. Heller, 128 S. Ct. 2783, 2816-17 (2008). And nothing in Article I, § 25 of the Wisconsin Constitution authorizes a person to openly carry a firearm undercircumstances in which such conduct is likely to alarm others." What good is your Constitution if you can carry, but not if some could likely be alarmed?

    Anyone who tries to bring a 1983 suit for open carry is going to be met with resistance when trying to find an attorney. No attorney will take a potential loser on contingency. People who wish to bring a 1983 suit using their own money will look at this and have to consider that losing $10k+ on a suit may not be worth it.

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    I am afraid that right now appealing this decision is probably not even on the mind of Mr. Gonzalez. I think he has other more pressing concens.

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    kwikrnu wrote:
    Wisconsin Carry, Inc. - Chairman wrote:
    The Federal Judge doesn't make law in WI, but this case is a strong indicator of what cops can get away with. Now they know that arresting for someone for open carrying a handgun will not result in a civil rights violation.
    Not true. What this means is that a case at the district level heard by Judge Adelman will not result in a civil rights violation.

    The precedent is not binding, its a poorly written decision, the decision is not published. Another federal district judge even in the same district is free to decide differently. An appellate court, the same.

    This case was about the right to bear arms in WI.
    only in the most tangential of contexts

    I'm sorry to say, but the right to bear arms in WI is non-existant if the federal court didn't rule for the plantiff.
    Again, you are categorically wrong (though I may cut you a little slack on this one because you aren't familiar with Wisconsin's state constitution) Wisconsin's state constitution guarantees us the right to keep and bear arms for security, self defense, hunting, recreation and any other lawful purpose.

    You are drastically misrepresenting this decision.

    It isn't binding, but now we know and cops know that at least one federal judge doesn't give a damn about your right to carry a handgun in WI. Apparently your constitution means nothing because as the judge stated, "The Supreme Court has never held that the Second Amendment protects the carrying of guns outside the home. See District of Columbia v. Heller, 128 S. Ct. 2783, 2816-17 (2008). And nothing in Article I, § 25 of the Wisconsin Constitution authorizes a person to openly carry a firearm undercircumstances in which such conduct is likely to alarm others." What good is your Constitution if you can carry, but not if some could likely be alarmed?

    Anyone who tries to bring a 1983 suit for open carry is going to be met with resistance when trying to find an attorney. No attorney will take a potential loser on contingency. People who wish to bring a 1983 suit using their own money will look at this and have to consider that losing $10k+ on a suit may not be worth it.
    Kwik, You are way off base in your assumptions. The ruling in that rights violation case will have absolutely no bearing on anything happening in this state. I have a feeling Adelmen created a situation that will come back and haunt him over and over.

    Exercising your rights is not disorderly! Nor is having tattoo's, long hair, piercings or anything else that is a protected right.

    If the anti O-C cops use that ruling to continue on their campaign of harrassment against O-C'ers, they will only end up on the wrong side of the courtroom too.

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    http://www.columbian.com/news/2010/m...ears-in-court/



    It was a perfunctory court appearance on a much larger debate.

    Kurk Kirby, cited while carrying a handgun in a Vancouver Albertsons grocery store on March 19, made his first appearance Wednesday in Clark County District Court. The hearing was to schedule a trial date, but Kirby, 26, of Vancouver waived his right to a speedy trial.

    Judge Kelli Osler set a review hearing for July 19, at which time a trial date will be set.
    Kirby, dressed in a sleek tan suit and openly smiling for a TV cameraman and photographer, did not make a statement to the judge.

    When approached by a reporter, he declined comment, saying his attorney advised him against speaking to the media.

    Kirby is charged with unlawfully carrying a weapon, a gross misdemeanor punishable by up to one year in jail and a $5,000 fine.

    Last month, Kirby’s attorney, Christopher Dumm, entered a not guilty plea on his client’s behalf.

    It is legal to carry a firearm openly in the state of Washington, but prosecutors with the Vancouver city attorney’s office filed the charge — which makes it unlawful to display a weapon in a manner “that either manifests an intent to intimidate another or warrants alarm” — based on witness observations.

    Witnesses, including two men who have concealed weapons permits, told police Kirby looked like “Wyatt Earp, ready to draw.” Witnesses also said he was “giving everyone the eyeball with his hand on the gun,” according to police reports.

    Police reports indicate that officers spotted Kirby outside the store, wearing a skin-tight T-shirt that didn’t cover the large holstered gun. The Springfield Armory XP pistol had a round in its chamber and several more in the magazine snapped into its handle. More cartridges, totaling 35, were in the two magazines.

    Initial reports stated 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 for 10 or 15 minutes before someone called 911.

    But further investigation found witnesses who said they felt Kirby was “going into the draw position,” according to police reports.

    Kirby told responding officers he was within his rights to carry the gun openly, reports said. He also has a concealed weapons permit.

    The case has drawn attention of people nationwide on both sides of the open-carry debate, including advocates on OpenCarry.org.

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