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Thread: Further Concerns on Colorado's "Disorderly Conduct" laws. Menacing, as well.

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    Further Concerns on Colorado's "Disorderly Conduct" laws. Menacing, as well.

    Ok, this is the state-specific nuts and bolts of the more nation-wide thread.

    Again, this grew out of concerns raised by a conversation earlier this afternoon (well, Friday) with a law enforcement officer in the Colorado Springs Police Department. The officer made several comments, a couple of which I found misguided:

    1. He indicated that an OCer could be charged with "disorderly conduct." When pressed, he stated that whether or not one was charged would be dependent upon the "totality of the circumstances."

    2. He indicated the amount of "alarm" one created would be considered a factor.

    3. While he never mentioned "menacing," I did stumble across several references to "menacing" while searching for state-specific information on "disorderly conduct."

    Research for this issue begins with C.R.S. 18-9-106 - Disorderly Conduct.

    Adjunct to this is a comment made by a former LEO approximately 18 months ago involving the same issue. That individual stated that I should CC so that I don't risk being charged with "disorderly conduct." My train of thought is "How can the peaceable carry of a legal firearm by a law-abiding citizen ever be misconstrued as "alarming" much less "disorderly conduct?"

    In resolving this, I'd like to explore the concept of what it means to be "alarming." Is it simply what's subjectively perceived by an individual? If so, I could easily argue that anyone countering my 2nd Amendment Right to Keep and Bear Arms is "alarming" to me, particularly after having spent the last 20 years serving my country in the United States Military under a pre-requisite oath of office requiring allegiance to the U.S. Constitution and its Amendments, including the 2nd.

    Or are there more objective criteria, those involving "reasonable man" tests? In other words, the introduction of a ladybug to a crowd by opening one's hand may very well be alarming to one individual in the crowd. However, if that individual wigs out, is the 9-yr-old who was showing off the ladybug guilty of "alarming" the other and therefore culpable of disorderly conduct? Of course not! If anything, the individual who flips out is reacting abnormally with respect to the population at large. They're the one who needs help. If you really want to charge someone with disorderly conduct, charge them. The kid is just being a kid.

    Similarly, if I OC at, say, IHOP for 18 months, and the most "disturbed" reaction by any employee or restaurant patron is nothing more than a second glance, that pretty much sets the tone, the societal norm, with respect to what should be used as a basis for the reasonable/rational man test.

    Next, imagine an individual who spots me returning to my table after using the restroom, and calls 911. The cops arrive, the individual states they were "alarmed" at the sight of my firearm, and asks that charges be filed. Upon learning I have a concealed carry permit, the police "advise" me to put the firearm in my bag. I refuse, stating that OC is my right under Colorado State Law. In response, they charge me with "disorderly conduct" as per what the local LEO told me this afternoon.

    Really???

    I don't think so! Oh, it may come down the pike this way, but I don't think it would ever fly in the courts.

    Let's take a detailed look at the law:

    18-9-106. Disorderly conduct.

    (1) A person commits disorderly conduct if he or she intentionally, knowingly, or recklessly:

    (a) Makes a coarse and obviously offensive utterance, gesture, or display in a public place and the utterance, gesture,
    Nothing an IHOP breakfast would cause so far.

    ...or display tends to incite an immediate breach of the peace;
    Again, if someone wigs out, I'd argue they're the ones breaching the peace. Consider a mouse running across the floor of the restaurant. Cause for alarm? Not really, but if someone jumps up and starts screaming about it, they, not the mouse, bears the predominant responsibility for breaching the peace.

    or (b) (Deleted by amendment, L. 2000, p. 708, 39, effective July 1, 2000.)
    Well, this is good news, as this was one of the measures to which I objected. I suspect it was deleted because the courts found it unconstitutional.

    (c) Makes unreasonable noise in a public place or near a private residence that he has no right to occupy; or
    Nope, not yet...

    (d) Fights with another in a public place except in an amateur or professional contest of athletic skill; or
    Nope, not yet...

    (e) Not being a peace officer, discharges a firearm in a public place except when engaged in lawful target practice or hunting; or
    Nope, not yet...

    (f) Not being a peace officer, displays a deadly weapon, displays any article used or fashioned in a manner to cause a person to reasonably believe that the article is a deadly weapon, or represents verbally or otherwise that he or she is armed with a deadly weapon in a public place in a manner calculated to alarm.
    Bingo! However, the key part of this is "in a manner calculated to alarm." It is not, as the police officer insinuated, something which alarms another. They have to prove that by OCing in IHOP, I'd calculated OCing to cause alarm.

    That's intent. If I OC everywhere I go, all without intent to cause alarm, it would be devilishly difficult for anyone to prove my intentions were to cause alarm.

    Enough for now. Next up, "menacing."
    Last edited by since9; 09-10-2011 at 03:36 AM.
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    Menacng

    From the C.R.S. Annotations following 18-106-1:

    The actus reus of felony menacing is "placing another person in fear of imminent serious bodily injury by the use of a deadly weapon", an act more specific than the actus reus of disorderly conduct with a deadly weapon, which is displaying a deadly weapon in an alarming manner in a public place.
    To digest, is OCing a properly-holstered firearm "alarming?" No, as it does not pass any reasonable/rational man test. Brandishing without any justified reason for doing so could be considered alarming. OCing by itself, however, cannot be legally construed as alarming. Therefore, any charge of disorderly conduct levied against OC in and of itself will not withstand scrutiny in the courts.

    Menacing requires even more aggravating action, such as pointing a firearm at another individual without lawful reason for doing so. A holstered firearm cannot be considered as "menacing," any more than a kitchen knife laying within arm's reach on a counter top could be considered "menacing."

    So, in summary, can OCing in Colorado EVER be legally described as "alarming?" No, as it does not pass the rational/reasonable man test.

    Can OCing every be legally described as "disorderly conduct?" No, as it's not alarming.

    Can OCing ever be legally described as "menacing?" No, as a properly-holstered firearm is not communicating any "imminent serious bodily injury by the use of a deadly weapon."

    Bottom line: If an LEO in Colorado uses (misuses, in my book) terms such as "disorderly conduct" or "menacing" in a manner calculated by them to attempt to curb your right to keep and bear arms, they are being deceptive. Intentionally? Perhaps not. Perhaps it's merely ignorance. Regardless, it's still wrong for them to do so.

    Carry on.
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    Echoed. It's about intent. They can "charge" you with anything. Whether it will stick or how long it will take to be dropped and make you miserable is another question. There's a difference between peaceably OCing and glaring and grumbling at everyone while waggling your hip with a gun on it at them.

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    Regular Member Beau's Avatar
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    I absolutely agree that you can be charged with disorderly conduct. It is unfortunate that LEO would misinterpret the law in this manner but it happens. The charge would obviously not hold up but it would be a waste of time.
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    Regular Member JamesB's Avatar
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    Quote Originally Posted by Beau View Post
    I absolutely agree that you can be charged with disorderly conduct. It is unfortunate that LEO would misinterpret the law in this manner but it happens. The charge would obviously not hold up but it would be a waste of time.
    Sadly, in my experience, there seem to be a lot of officers who either don't know the laws or don't care about them. Their theory is simply get 'em off the streets and let em tell it to a judge.

    This has led to a lot of legal fees being paid for no reason.

    Again, this only from my personal experience.

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    Quote Originally Posted by JamesB View Post
    Sadly, in my experience, there seem to be a lot of officers who either don't know the laws or don't care about them. Their theory is simply get 'em off the streets and let em tell it to a judge.

    This has led to a lot of legal fees being paid for no reason.

    Again, this only from my personal experience.
    The real problem is that the vast majority of Disorderlies for OCing are not brought to trial. Either charges are dropped or someone is buffaloed into pleading guilty to a lesser included charge. If the same were to happen to me I would not allow the DA to drop charges. Not without a legal agreement in place to stop all such conduct within his jurisdiction by all departments and all courts. I would really aim for such an agreement by the AG and all STATEWIDE LEO's and courts. The state would also end up paying my lawyers.
    I won't be wronged, I won't be insulted, and I won't be laid a hand on. I don't do those things to other people and I require the same of them.

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    Regular Member Gunslinger's Avatar
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    There is no included lesser charge in Disorderly Conduct. It is the bottom of the barrel and used when nothing else fits. In CO, in the situations Since opines, it would not stick and I don't believe ever be charged in El Paso or any other non-PDR of Denver County. The remedy is filing suit for malicious prosecution if the cop was an ******* and trumped up the charge. Not easy, but can be done. I have about zero concern in EP County, but an interesting discussion.

    Malicious prosecution is a common law intentional tort, while like the tort of abuse of process, its elements include (1) intentionally (and maliciously) instituting and pursuing (or causing to be instituted or pursued) a legal action (civil or criminal) that is (2) brought >>>>>>>>>>>>>>>>>without probable cause and (3) dismissed in favor of the victim of the malicious prosecution>>>>>>>>>>>>>>>>. In some jurisdictions, the term "malicious prosecution" denotes the wrongful initiation of criminal proceedings, while the term "malicious use of process" denotes the wrongful initiation of civil proceedings.
    Last edited by Gunslinger; 09-13-2011 at 12:56 PM.
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    Regular Member hermannr's Avatar
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    what you need in CO is what we already have in WA, that is a published state high court oninion that the holstered carry of a firearm is not "an intentional alaming display".

    As already stated, the problem is getting a charge that far down the legal path. Very expensive to all involved. (especially here where there is a specific law that says a governmental entity that falsely procecutes, gets to pay for the defence.

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    Quote Originally Posted by hermannr View Post
    what you need in CO is what we already have in WA, that is a published state high court oninion that the holstered carry of a firearm is not "an intentional alaming display".
    That would be nice, particularly as most apartment rental contracts include verbiage prohibiting OC if others find it "alarming." Something in stone that states a properly-holstered firearm is not to be considered "alarming" would go a long way, both for renters as well as for those who frequent establishments with similar mindsets.
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    Regular Member hermannr's Avatar
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    Quote Originally Posted by since9 View Post
    That would be nice, particularly as most apartment rental contracts include verbiage prohibiting OC if others find it "alarming." Something in stone that states a properly-holstered firearm is not to be considered "alarming" would go a long way, both for renters as well as for those who frequent establishments with similar mindsets.
    You do know when they give you that rental contract for you to sign, you have the legal RIGHT to cross off anything you do not like, and if they insist, you just say, "no, I crossed that out because I will not live by that, if you will not initial the crossout, I will not sign the contract" (and be prepared to walk, but in todays rental housing environment, I'll bet you won't have to walk.)

    Most rental contracts are purchased at the stationary store, not written by a particular housing outfits lawyer. You can cross out ANYTHING you do not like, initial and date it (and cross out and initial on their copy too) then have their property manager initial the cross out(s) (on both his copy and yours), and whatever was crossed out is no longer binding on either of you.
    Last edited by hermannr; 09-18-2011 at 03:38 PM.

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    Regular Member OldCurlyWolf's Avatar
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    Quote Originally Posted by hermannr View Post
    You do know when they give you that rental contract for you to sign, you have the legal RIGHT to cross off anything you do not like, and if they insist, you just say, "no, I crossed that out because I will not live by that, if you will not initial the crossout, I will not sign the contract" (and be prepared to walk, but in todays rental housing environment, I'll bet you won't have to walk.)

    Most rental contracts are purchased at the stationary store, not written by a particular housing outfits lawyer. You can cross out ANYTHING you do not like, initial and date it (and cross out and initial on their copy too) then have their property manager initial the cross out(s) (on both his copy and yours), and whatever was crossed out is no longer binding on either of you.
    Do you have the Law Reference where that opinion is published? I believe it would be in NW Vol. xxx , Pg.xxx or Pacific Vol. XXX, Pg. XXX. It would be handy to be able to cite the reference, even if it is not Colorado. The leasing agents probably would not have a clue.
    I won't be wronged, I won't be insulted, and I won't be laid a hand on. I don't do those things to other people and I require the same of them.

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    Quote Originally Posted by hermannr View Post
    You do know when they give you that rental contract for you to sign, you have the legal RIGHT to cross off anything you do not like, and if they insist, you just say, "no, I crossed that out because I will not live by that, if you will not initial the crossout, I will not sign the contract" (and be prepared to walk, but in todays rental housing environment, I'll bet you won't have to walk.)
    I did so, crossing out several items, and was prepared to walk, but they said, "no, we'll agree to these terms" and signed me on. They even renewed my lease contract under the same terms in 2010, so I commenced final move-in procedures, including spending thousands of bucks gathering goods from all over and having them moved there, only to discover that unilateral landlord/lesee contract termination is legal and darn well nigh without question here in Colorado.

    I also learned that in our state either leasee or leasor may terminate without cause without recourse by the other party.
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