North Carolina Woman Arrested For Unloaded Open Carry

Tacitus42 · Oct 23, 2013

http://www.christophercantwell.com/2013/10/22/north-carolina-woman-arrested-for-unloaded-open-carry/

Police arrived on the scene as she was on her way home. They saw the weapon, called for backup, and then surrounded Tabytha with their guns drawn. “They were screaming ‘PUT THE ******* GUN DOWN!‘”, “There were 7 cops cars” Tabytha told me in our telephone interview, which lasted a little over half an hour. Tabytha said she put the weapon down immediately, and told her dog to go home.

https://www.youtube.com/watch?v=FycfprWHEBc

Grapeshot · Oct 23, 2013

The lady has been victimized twice - once by the perps and then by the police. See a Ka-ching in her future.

She has made one big mistake IMO though - loose lips and all that:

"She’s afraid the thefts might go from small things like bicycles and skateboards to bigger things like four wheelers and jet skis. She says “If you come in my house, I’m not calling the police, I’m going to kill you”, and if the police in Iredell county are more concerned with arresting gun owners than vandals and thieves, then let’s not be surprised if that’s exactly what ends up happening.
http://www.christophercantwell.com/2013/10/22/north-carolina-woman-arrested-for-unloaded-open-carry/

Please mam, learn to say that you'll do all in your legal power to STOP them.

REDFIVE48 · Oct 23, 2013

This one is bad as we typically tout GATTTOP as an add on charge when they are actually doing something crazy, but here we have true example of it being used to suppress OC. I hope this goes through the system and sets precedent so we don't have to ever fear this crap anymore.

Big settlement and lots of clarification to LE would be a really good resolution. Hopefully she doesn't plea this to something else to make it all go away.

Sir Diealotz · Oct 23, 2013

That's just wrong! I hope she receives a rather hefty settlement. $$$

WalkingWolf · Oct 23, 2013

After her case is thrown out, I hope she sues and gets a nice settlement. That said she needs to keep her big mouth shut, and NOT carry a unloaded firearm.

mekender · Oct 23, 2013

If there is no case law regarding the carry of rifles (I am not aware of any) then this MAY be a valid charging of the GATTOP law... The key is going to be "in a manner to cause terror to the people" and will likely revolve around HOW and WHY she was carrying it.

If she was carrying it in her hand, then it is certainly a valid charging... If she was carrying it slung in the front with her hands on it, then probably so... Slung over the shoulder with the barrel up or down, maybe not.

BUT...

If during the arrest and subsequent interviews she stated to the police that she was carrying it in order to intimidate or otherwise let the neighborhood know she meant business, then it is also likely a valid charge.

Without the full arrest report, we wont know though.

MKEgal · Oct 23, 2013

This is ridiculous.
Completely believable, but ridiculous.

“They told me, technically, you didn’t do anything illegal, but because they got a flood of phone calls in a matter of two minutes that they had to arrest me for something”

So they know she didn't break a law,
it's not even a real law,
the cops don't expect it to stick,
but they arrest her anyway just because they can, just to show her that law-abiding people are not welcome in that neighborhood.

“Go armed to the terror of the people” was the charge, and if you look through the statutes of North Carolina, or Iredell County, or the City of Statesville, where the mother of two lives, you won’t find anything of the sort. The charge is a 40+ year old “common law” misdemeanor, that basically equates to you having something, that someone, somewhere, was at some time, afraid of.
...
The elected legislature never voted on this “law” it’s just “the law” because some guy in a robe said it was, nearly half a century ago.

And in that picture of the complaint:

"defendant named above unlawfully and willfully did suspect walked down the street with unloaded firearm"

If I lived in the area, I'd organize people to take nightly walks through the neighborhood, OC, until the neighbors get the idea that it's not illegal and the cops are the ones getting in trouble when they hassle citizens.

Grapeshot · Oct 23, 2013

mekender said:
If there is no case law regarding the carry of rifles (I am not aware of any) then this MAY be a valid charging of the GATTOP law... The key is going to be "in a manner to cause terror to the people" and will likely revolve around HOW and WHY she was carrying it.

If she was carrying it in her hand, then it is certainly a valid charging... If she was carrying it slung in the front with her hands on it, then probably so... Slung over the shoulder with the barrel up or down, maybe not.

BUT...

If during the arrest and subsequent interviews she stated to the police that she was carrying it in order to intimidate or otherwise let the neighborhood know she meant business, then it is also likely a valid charge.

Without the full arrest report, we wont know though.

Correction: Without the full facts we won't know.

Keep in mind that laws are generally written to restrict (make illegal) something. The absence of a law restricting carry of a long gun leaves it legal.

mekender · Oct 23, 2013

Grapeshot said:
Correction: Without the full facts we won't know.

Keep in mind that laws are generally written to restrict (make illegal) something. The absence of a law restricting carry of a long gun leaves it legal.

100% agree, but GATTOP follows with well-established precedent for the limitations on other rights in regards to restricting time, place and manner of exercise. And in this case it appears that is what is being tested.

You are right that we do not have the "full facts" and frankly, from looking at the website posted by the OP and other stories on it, I do not consider that to be a reliable, primary source. We have to be careful not to jump on the bandwagon of defending someone who appears to have suffered injustice before we find out if indeed that person was a benevolent actor in the situation. Case in point, the recent arrest of the nutbag up in NY that was building bombs "for" Keith Richards.

Don't get me wrong, I am intently curious about this incident as it is the first time I have seen GATTOP charged as a solo charge. But without more information, I am not ready to hoist the flag of freedom and start yelling "Shall not be infringed" on the courthouse steps.

Jamesm760 · Oct 23, 2013

Am I the only one that noticed the big grin on her face? Almost like she knows whats in the near future.. $$$$$$

WalkingWolf · Oct 24, 2013

GATTOP can be charged with a tire iron, it is not specific to firearms. The important part is going with the intent to terrorize, and so far the courts seem to believe just the act of carrying is NOT GATTOP.

moonie · Oct 25, 2013

Not that I agree with the position but couldn't it be argued that since it was unloaded she was not using it for her protection but carried it to cause terror, even if it was to terrorize the bad guys?

Again, I do not agree with that position just pointing out her possible motives. I do hope she receives a very large settlement.

BrianB · Oct 25, 2013

Not a big fan of the concept of charging people with unpublished (or obscurely published) common law crimes. I feel this is tantamount to "secret laws" and the public is not on fair notice as to what constitutes criminal conduct.

The Model Penal Code addresses an ignorance defense to a criminal charge in 2.04(3)(a):

(3) A belief that conduct does not legally constitute an offense is a defense to a prosecution for that offense based upon such conduct when:

(a) the statute or other enactment defining the offense is not known to the actor and has not been published or otherwise reasonably made available prior to the conduct alleged; or

Of course the MPC is not law - but it "has played an important role in standardizing the codified penal laws of the United States"[SUP]1[/SUP] and I feel is a good reference point for topics like this.

I believe that under the due process provisions of the 5th and 14th amendments no criminal penalty can be imposed without fair notice that the conduct is forbidden. Though I couldn't say where I learned it, that concept of requisite fair notice of prohibited conduct for crimes is something I have always understood to be fundamental to our system of law.

I'm not an attorney -- nowhere close -- but (as most of us have) I've put more effort into understanding the law than the average person. I have a bookshelf full of expensive books from WestLaw and LexisNexis. In short, I've put more effort into understanding my legal responsibilities than the law could ever expect a person to do. And despite that, I'll be darned if I can find any reference materials that would allow me to familiarize myself with any common law crimes in my state (or any other for that matter). I can find the statute that declares the common law to be in force here (in Florida) to the extent that it is "not inconsistent with the Constitution and laws of the United States and the acts of the Legislature of this state", but not much beyond that. There's plenty of publications available relating to common law application in matters of equity/laches -- and I think that's what most people think of when they think of common law -- equitable (civil) law, not crimes.

Unlike the readily available statutes of any state, details of common law crimes appear to be generally unavailable. I'm sure I'm missing something here. There's no way the public can be expected to know all of the crimes ever invented by any British court (or king) for all the centuries of cases and controversies up to July 4, 1776 (the cutoff for applicability of British common law here).

If there is a compendium of common law crimes, please do share the title. My bookshelf apparently has a hole in it that I never knew was there.

Wulf.45 · Oct 26, 2013

BrianB said:
Not a big fan of the concept of charging people with unpublished (or obscurely published) common law crimes. I feel this is tantamount to "secret laws" and the public is not on fair notice as to what constitutes criminal conduct.

The Model Penal Code addresses an ignorance defense to a criminal charge in 2.04(3)(a):

Of course the MPC is not law - but it "has played an important role in standardizing the codified penal laws of the United States"[SUP]1[/SUP] and I feel is a good reference point for topics like this.

I believe that under the due process provisions of the 5th and 14th amendments no criminal penalty can be imposed without fair notice that the conduct is forbidden. Though I couldn't say where I learned it, that concept of requisite fair notice of prohibited conduct for crimes is something I have always understood to be fundamental to our system of law.

I'm not an attorney -- nowhere close -- but (as most of us have) I've put more effort into understanding the law than the average person. I have a bookshelf full of expensive books from WestLaw and LexisNexis. In short, I've put more effort into understanding my legal responsibilities than the law could ever expect a person to do. And despite that, I'll be darned if I can find any reference materials that would allow me to familiarize myself with any common law crimes in my state (or any other for that matter). I can find the statute that declares the common law to be in force here (in Florida) to the extent that it is "not inconsistent with the Constitution and laws of the United States and the acts of the Legislature of this state", but not much beyond that. There's plenty of publications available relating to common law application in matters of equity/laches -- and I think that's what most people think of when they think of common law -- equitable (civil) law, not crimes.

Unlike the readily available statutes of any state, details of common law crimes appear to be generally unavailable. I'm sure I'm missing something here. There's no way the public can be expected to know all of the crimes ever invented by any British court (or king) for all the centuries of cases and controversies up to July 4, 1776 (the cutoff for applicability of British common law here).

If there is a compendium of common law crimes, please do share the title. My bookshelf apparently has a hole in it that I never knew was there.

Technically, she is guilty of GATTOP, if it was not slung in any manner. If she was just carrying it in hand, then I can see it as a stand alone charge. We don't know the details, but she did state her intent, which wasn't bright. Especially unloaded, showing she had no defensive capacity to use it, her intent can be proven to "terrorize" in a court of law by any competent attorney.

As to the MPC and ignorance as a defense of a common law charge, I've never actually considered that, but I will have to look into it. It would be a tough sell to get it upheld or considered by a judge, as it would effectively upset modern day courts and they would be aware of the repercussions of such a ruling. I commend your ingenuity!

Grapeshot · Oct 26, 2013

Wulf.45 said:
Technically, she is guilty of GATTOP, if it was not slung in any manner. If she was just carrying it in hand, then I can see it as a stand alone charge. We don't know the details, but she did state her intent, which wasn't bright. Especially unloaded, showing she had no defensive capacity to use it, her intent can be proven to "terrorize" in a court of law by any competent attorney.

As to the MPC and ignorance as a defense of a common law charge, I've never actually considered that, but I will have to look into it. It would be a tough sell to get it upheld or considered by a judge, as it would effectively upset modern day courts and they would be aware of the repercussions of such a ruling. I commend your ingenuity!

Technically and pointedly the lady is guilty of absoluely nothing. Charges being brought does not equate to guilt.......first there is a trial.

Even here on OCDO, where we are not bound by Blackstone's Rule of Law, we do not make decisive quantum leaps into the unknown and sell it as a completed verdict. We observe, discuss, cite, and frown on knee-jerk reactions. We learn and educate.

Wulf.45 · Oct 26, 2013

Grapeshot said:
Technically and pointedly the lady is guilty of absoluely nothing. Charges being brought does not equate to guilt.......first there is a trial.

Even here on OCDO, where we are not bound by Blackstone's Rule of Law, we do not make decisive quantum leaps into the unknown and sell it as a completed verdict. We observe, discuss, cite, and frown on knee-jerk reactions. We learn and educate.

+1.

Improper choice of words. Good call

BrianB · Oct 27, 2013

Wulf.45 said:
As to the MPC and ignorance as a defense of a common law charge, I've never actually considered that, but I will have to look into it. It would be a tough sell to get it upheld or considered by a judge, as it would effectively upset modern day courts and they would be aware of the repercussions of such a ruling. I commend your ingenuity!

Although it deals with regulatory rule making, and not common law crimes, last year the Supreme Court handed down a couple rulings that are somewhat on point here. The cases dealt with constitutional due process violations from federal agencies failing to provide "fair notice" of prohibited conduct. At stake were merely (admittedly large) civil fines, not criminal penalties.

It seems reasonable that if failure to provide fair notice of prohibited conduct is a due process violation in civil matters, it certainly would be in criminal matters. If the state of North Carolina can't show where these common law crimes have been published for ready consultation by the citizenry, I'd hope that these charges will be very short lived. Hopefully her attorney considers this angle of defense. It seems viable to me, but what do I know.

davidmcbeth · Oct 27, 2013

BrianB said:
Although it deals with regulatory rule making, and not common law crimes, last year the Supreme Court handed down a couple rulings that are somewhat on point here. The cases dealt with constitutional due process violations from federal agencies failing to provide "fair notice" of prohibited conduct. At stake were merely (admittedly large) civil fines, not criminal penalties.

It seems reasonable that if failure to provide fair notice of prohibited conduct is a due process violation in civil matters, it certainly would be in criminal matters. If the state of North Carolina can't show where these common law crimes have been published for ready consultation by the citizenry, I'd hope that these charges will be very short lived. Hopefully her attorney considers this angle of defense. It seems viable to me, but what do I know.

This is the same court that recently ruled that changes to the CFRs can be done simply by placing a note into the federal registry? So, keep up on the CFRs by reading the federal registry every day ~ don't worry, its only 5-10K pages per day...

We need to go back to the articles of confederation ...

razor_baghdad · Nov 3, 2013

mekender said:
If there is no case law regarding the carry of rifles (I am not aware of any) then this MAY be a valid charging of the GATTOP law... The key is going to be "in a manner to cause terror to the people" and will likely revolve around HOW and WHY she was carrying it.

I know OCDO doesn't condone OC long guns...but simply carrying you rifle in front of you instead of behind you does not constitute GATTOP. If you were to raise your weapon and point it at someone, sure, threatening manner, terror.

mekender said:
If she was carrying it in her hand, then it is certainly a valid charging... If she was carrying it slung in the front with her hands on it, then probably so... Slung over the shoulder with the barrel up or down, maybe not.

Again, I won't ever sling a long gun to make a point, but a slung long gun behind your back is as good as an unloaded firearm on your hip. How many folks practice at the range for self-defense from sling-arms?? Please respond if you do. Having a long gun slung if front of you DOES NOT constitute GATTOP. Always maintain control of your weapon by keeping at least one point of contact...ie...hand... many have learned this as part of our daily routine..but that does not constitute me "Going armed to the terror of the public". I won't be the test subject, but even the conjecture that a slung long gun is of any use in a split second decision amazes me. There are many cases of good LEO encounters with the long gun slung in front.

mekender said:
If during the arrest and subsequent interviews she stated to the police that she was carrying it in order to intimidate or otherwise let the neighborhood know she meant business, then it is also likely a valid charge.

Agree to a point. What aver happened to the 5th Amendment?? Free speech?? Right to self defense?? If you invade my property or threaten my family, I will kill you (agree the inference is that if you threaten me, I will threaten you). I hope she wins a healthy settlement and the neighbors now know she means bizness.

mekender said:
Without the full arrest report, we wont know though.

Roger that. I hope some high speed lawyer takes her case and defends her right to defend herself and her family.

Agree with Grape, guilty of nothing.

davidmcbeth · Nov 3, 2013

mekender said:
If there is no case law regarding the carry of rifles (I am not aware of any) then this MAY be a valid charging of the GATTOP law... The key is going to be "in a manner to cause terror to the people" and will likely revolve around HOW and WHY she was carrying it.

If she was carrying it in her hand, then it is certainly a valid charging... If she was carrying it slung in the front with her hands on it, then probably so... Slung over the shoulder with the barrel up or down, maybe not.

BUT...

If during the arrest and subsequent interviews she stated to the police that she was carrying it in order to intimidate or otherwise let the neighborhood know she meant business, then it is also likely a valid charge.

Without the full arrest report, we wont know though.

The common law charge is likely 4-F as statues have already been written addressing the carry of firearms which would negate any common law charge. The only thing this case is going to prove is the idiocy of the law enforcement community.

North Carolina Woman Arrested For Unloaded Open Carry

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