Arrest and Dismissal of Disorderly Conduct Charges for Open Carry

[Statkowski]

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IN OTHER WORDS, CAN A BUSINESS OWNER MANDATE CONCEALEMENT AS A CONDIDITON OF ALLOWING FIREARMS TO BE CARRIED? The question was raised by a very knowledgeable individual in law enforcement and poses a rather unique area for discussion.

Since the bearing of arms is a constitutionally-guaranteed right, can a business owner mandate concealment as a condition of allowing a cross or Star of David to be worn around one's neck, since freedom of religion is another constitutionally-guaranteed right?

 

[Leverdude]

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Statkowski wrote:

IN OTHER WORDS, CAN A BUSINESS OWNER MANDATE CONCEALEMENT AS A CONDIDITON OF ALLOWING FIREARMS TO BE CARRIED? The question was raised by a very knowledgeable individual in law enforcement and poses a rather unique area for discussion.

Since the bearing of arms is a constitutionally-guaranteed right, can a business owner mandate concealment as a condition of allowing a cross or Star of David to be worn around one's neck, since freedom of religion is another constitutionally-guaranteed right?

A better starting point if we are talking constitutionality is how can a state mandate a permit for ALL carry and not infringe on the Federal constitution as well in CT's case as the state constitution?

As far as what a business owner can & cannot do, if they own the building their rights should be equal in every way to those of a homeowner. That being the case a person should be within their rights to restrict religious symbolism or refuse entry to anybody for any reason. If they do not own the building or premises then I'd say they have to abide by the owners wishes on such matters.

I may not agree with a persons racial, religious or firearms views, but what or who they permit on their property is not my concern.

We, I think, need to address this idea that a private business that serves the public is somehow a public place, its not. Public places, buildings & property are funded by the public thru taxes & such.

If a place only wants to cater to whites or blacks or Jews or Christians or Muslims or armed or unarmed patrons its within their rights as I see things.

 

[gogodawgs]

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Leverdude wrote:

Statkowski wrote:

IN OTHER WORDS, CAN A BUSINESS OWNER MANDATE CONCEALEMENT AS A CONDIDITON OF ALLOWING FIREARMS TO BE CARRIED? The question was raised by a very knowledgeable individual in law enforcement and poses a rather unique area for discussion.

1) Since the bearing of arms is a constitutionally-guaranteed right, can a business owner mandate concealment as a condition of allowing a cross or Star of David to be worn around one's neck, since freedom of religion is another constitutionally-guaranteed right?

A better starting point if we are talking constitutionality is how can a state mandate a permit for ALL carry and not infringe on the Federal constitution as well in CT's case as the state constitution?

2) As far as what a business owner can & cannot do, if they own the building their rights should be equal in every way to those of a homeowner. That being the case a person should be within their rights to restrict religious symbolism or refuse entry to anybody for any reason. If they do not own the building or premises then I'd say they have to abide by the owners wishes on such matters.

I may not agree with a persons racial, religious or firearms views, but what or who they permit on their property is not my concern.

3) We, I think, need to address this idea that a private business that serves the public is somehow a public place, its not. Public places, buildings & property are funded by the public thru taxes & such.

If a place only wants to cater to whites or blacks or Jews or Christians or Muslims or armed or unarmed patrons its within their rights as I see things.

1) To point one above; this is a very insightful point. Wearing a religious object is a passive display of your religious beliefs. This type of speech is allowed with only the strictest scrutiny to ban it from view. Even from private businesses of public accommodation.

2)No, a home and a business are very different. Business are open to the public and your home is not. Zoning, permits, purpose are all very different regarding this issue. The SC has ruled on 'public accommodation' and that your 1A rights still exist and have only the smallest limitations. For example, you may not walk through the business and interfere with customers and the business while gathering signatures or practicing your faith, but you may (under most circumstances) stand outside the business and conduct those activities.However, most any passive religiousor speech expression is allowed short of expressions deemed illegal and constitutional, i.e. obscenity.

3) This is where court decisions will be decided in the next decade concerning firearms. The SC has made many rulings regarding the 1st Amendment and places of 'public accommodation.' i.e. places that are private but open to the public. You stated above that it is not a 'public space', you will find you are wrong. The SC has ruled that your 1A rights are valid but with some limitations. I think that the SC will make decisions similar to the 1A when it comes to 'bearing arms' in places of public accommodation. The passive wearing of a holstered handgun will be legal, but the removal of that firearm will be forbidden except in cases of self defense.

 

[virginiatuck]

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Statkowski wrote:

IN OTHER WORDS, CAN A BUSINESS OWNER MANDATE CONCEALEMENT AS A CONDIDITON OF ALLOWING FIREARMS TO BE CARRIED? The question was raised by a very knowledgeable individual in law enforcement and poses a rather unique area for discussion.

Since the bearing of arms is a constitutionally-guaranteed right, can a business owner mandate concealment as a condition of allowing a cross or Star of David to be worn around one's neck, since freedom of religion is another constitutionally-guaranteed right?

A State or Federal Constitution expresses the duties, powers, and limitations of a Government. It does not guarantee one's rights in the "real world." Laws enacted by those Governments can, and do, apply to the people.

"The right to swing my fist ends where the other man's nose begins."
-- Oliver Wendell Holmes, Jr.

We have no right to use another's private property without their express or implied permission. Their permission may be granted on a discretionary basis. Fundamentally, one needs not have or give any reason to eject you from their property. They are only limited if there is a Federal or State law against it. This page at LegalZoom is a good read, though does not cite all of its sources. The California Unrah Civil Rights Act is much more broad, in who it protects, than the Federal Civil Rights Act.

The United States Civil Rights Act of 1964 provides for injunctive relief from discrimination or segregation on the ground of race, color, religion, or national origin in places of accommodation which affect interstate commerce or which is supported by State action.[1] Reconstruction-era civil rights laws regarding private persons and organizations were held unconstitutional by the Supreme Court in the Civil Rights Cases of 1883; Congress did not have that power under the 14th amendment. The Civil Rights Act of 1964 used Congress' power under the Interstate Commerce Clause and was upheld by the Supreme Court in Heart of Atlanta Motel v. United States.

As far as the Star of David goes, the answer to your question depends on whether the establishment fits the definition in 42 USC 2000a(c); or if there is an applicable State law that would prohibit such a requirement. Simply concealing the Star of David wouldn't be good enough for a true bigot, though.

As for people who OC, they are not protected by Federal Civil Rights law; but I wonder if California's Civil Rights Act would protect those who wear firearms. Does Connecticut have a Civil Rights Act, too?

Discrimination against people who openly carry firearms is bigotry, in my opinion. Still, I can almost sympathize with an owner who would watch 5 customers leave if he allows one OC'er. I leave you with another Holmes quote:

"The mind of the bigot is like the pupil of the eye: the more light you shine on it, the more it will contract."
-- Oliver Wendell Holmes, Jr.


edit: About California's law protecting those wearing a firearm, I suppose it wouldn't since it's been ruled in Ca. that a business could lawfully require that gang or club members remove their "colors."

 

[gogodawgs]

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virginiatuck wrote:

Discrimination against people who openly carry firearms is bigotry, in my opinion. Still, I can almost sympathize with an owner who would watch 5 customers leave if he allows one OC'er. I leave you with another Holmes quote:

"The mind of the bigot is like the pupil of the eye: the more light you shine on it, the more it will contract."
-- Oliver Wendell Holmes, Jr.

I am sure at one point a business that allowed one black would see five white customers leave. However, over time we have seen these opinions tolerated and even modified and changed. While the bigotry still exists it has become less common in the public sphere and only the most extreme bigot avoids businesses that serve blacks today.

I see the open carry of a holstered handgun very much the same. In today's culture we see Peet's coffee openly discriminating against open carry. Starbuck's and most other national businesses allow the practice where allowed by law. Therefore, citizen's are becoming familiar and accustomed to the practice. Stereotype's are being broken down. A decade from now, it will be more readily acceptable, but there will be a fight to achieve the normalcy of the sight of the holstered handgun.

 

[Leverdude]

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gogodawgs wrote:

2)No, a home and a business are very different. Business are open to the public and your home is not. Zoning, permits, purpose are all very different regarding this issue. The SC has ruled on 'public accommodation' and that your 1A rights still exist and have only the smallest limitations. For example, you may not walk through the business and interfere with customers and the business while gathering signatures or practicing your faith, but you may (under most circumstances) stand outside the business and conduct those activities.However, most any passive religiousor speech expression is allowed short of expressions deemed illegal and constitutional, i.e. obscenity.

3) This is where court decisions will be decided in the next decade concerning firearms. The SC has made many rulings regarding the 1st Amendment and places of 'public accommodation.' i.e. places that are private but open to the public. You stated above that it is not a 'public space', you will find you are wrong. The SC has ruled that your 1A rights are valid but with some limitations. I think that the SC will make decisions similar to the 1A when it comes to 'bearing arms' in places of public accommodation. The passive wearing of a holstered handgun will be legal, but the removal of that firearm will be forbidden except in cases of self defense.

I said should be, courts have been wrong & made erroneous decisions before.
Private property is private property and how its used shouldn't have bearing on the owners rights or authority over it. If anything, since a property owner who's property is open to the public has an increased liability his authority should be greater.
Its off topic but it works the same in relation to smoking in restaurants.
Its private property & nobody has to go there. If you dont like the rules dont go.

Our courts decide in favor of control freaks all the time.

 

[gogodawgs]

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Leverdude wrote:

gogodawgs wrote:

2)No, a home and a business are very different. Business are open to the public and your home is not. Zoning, permits, purpose are all very different regarding this issue. The SC has ruled on 'public accommodation' and that your 1A rights still exist and have only the smallest limitations. For example, you may not walk through the business and interfere with customers and the business while gathering signatures or practicing your faith, but you may (under most circumstances) stand outside the business and conduct those activities.However, most any passive religiousor speech expression is allowed short of expressions deemed illegal and constitutional, i.e. obscenity.

3) This is where court decisions will be decided in the next decade concerning firearms. The SC has made many rulings regarding the 1st Amendment and places of 'public accommodation.' i.e. places that are private but open to the public. You stated above that it is not a 'public space', you will find you are wrong. The SC has ruled that your 1A rights are valid but with some limitations. I think that the SC will make decisions similar to the 1A when it comes to 'bearing arms' in places of public accommodation. The passive wearing of a holstered handgun will be legal, but the removal of that firearm will be forbidden except in cases of self defense.

I said should be, courts have been wrong & made erroneous decisions before.
Private property is private property and how its used shouldn't have bearing on the owners rights or authority over it. If anything, since a property owner who's property is open to the public has an increased liability his authority should be greater.
Its off topic but it works the same in relation to smoking in restaurants.
Its private property & nobody has to go there. If you dont like the rules dont go.

Our courts decide in favor of control freaks all the time.

There is a long history of these precedents in our common law system. While from a 'purist' view concerning private property one may feel they are 'wrong' but they are not erroneous. There are many very distinctive differences in a homeowners private property and a business owners private property. To say "how its used shouldn't have bearing on the owners rights or authority over it" is a misdirected statement. Only a purist with disregard for the public sphere would want there to be no regulation as to the business. Again, there are zoning laws, fire regulations, etc, that are very different from a residence. This cannot be denied even in your argument above you acknowledge the significant difference and assume an "increased liability." The 'smoking' argument is not only off topic, but entirely irrelevant as it deals with an active interference in the place of business. (i.e. second hand smoke effects others directly). The topic at hand is a passive display of a firearm (or religious symbol). Liability is in the discharge of firearms, not in the possesion or bearing (carry) of the firearm.

Again, the private property argument will lose as a business open to public accomodation is a long standing measure in our legal system. There are distinctive differences in properties and this cannot be ignored.

 

[Leverdude]

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Theres no peer reviewed science supporting the concept of second hand smoke being overly dangerous. Smoking has been banned for PC reasons because it stinks & makes folks uncomfortable. Uncomfortable in places they need not be. I dont smoke by the way.
Just as guns are not wanted in some places because they make folks uncomfortable and of fears of non realities. I have alot of regard for the public sphere but it works both ways. Business owners are part of the public sphere and have rights as well. If we dont like their policies we can just leave.

It is true theres different zoneing laws & regs etc, but those do not take away your rights, they define how you run a business to protect the public etc. Change businesses & often thopse regs change. None of that in any way effects who you must deal with or limits your ability to arbitrarilly deny someone entry for whatever reason. Or it shouldn't anyway.

Letting the govt force people into things is never a good thing and violating someone elses rights to excercise mine isn't something I'm interested in.

We'll just have to agree to disagree I guess on the issue of property rights.

 

[Haz.]

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"IN OTHER WORDS, CAN A BUSINESS OWNER MANDATE CONCEALEMENT AS A CONDIDITON OF ALLOWING FIREARMS TO BE CARRIED? The question was raised by a very knowledgeable individual in law enforcement and poses a rather unique area for discussion."

Its like, I cannot enter a bank in Aus. with a motorcycle helmet on. I am told by securitythatmust be removed immediately, thats the law. If not security is called and the bank tellers shut down the security screens, yet a woman, or even a man in disguise can enter a bank wearing a muslim hijab full face cover thing with only the eyes showing similar to a balaclava, and they are served no question. This hijabis legal and tolerated as a religious right.

Haz.

 

[gogodawgs]

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Leverdude wrote:

Theres no peer reviewed science supporting the concept of second hand smoke being overly dangerous. Smoking has been banned for PC reasons because it stinks & makes folks uncomfortable. Uncomfortable in places they need not be. I dont smoke by the way. I agree that the reasons are PC and there is no science behind secondhand smoke, however, you admit that the smell and the smoke itself comes into contact with another human being.

Just as guns are not wanted in some places because they make folks uncomfortable and of fears of non realities. I have alot of regard for the public sphere but it works both ways. Business owners are part of the public sphere and have rights as well. If we dont like their policies we can just leave. Yes we can leave and yes they have rights. And when it comes to the Bill of Rights there is a balancing that takes place. In order for rights to be denied strict scrutiny must be established.

It is true theres different zoneing laws & regs etc, but those do not take away your rights, they define how you run a business to protect the public etc. Change businesses & often thopse regs change. None of that in any way effects who you must deal with or limits your ability to arbitrarilly deny someone entry for whatever reason. Or it shouldn't anyway. So you admit that they 'do not take away your rights.' Which is inclusive of the business and the patron in the sphere of public accommodation.

Letting the govt force people into things is never a good thing and violating someone elses rights to excercise mine isn't something I'm interested in. Agreed that it is never a good thing but passively wearing a religious symbol or holstered firearm is not violating someone's rights.

We'll just have to agree to disagree I guess on the issue of property rights.

You may disagree, but there is a long historical trail in our courts (common law) regarding these issues concerning many 1st Amendment issues, there are more intricacies but I have tried to give an overview of how there are differences.

 

[Leverdude]

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I agree that the reasons are PC and there is no science behind secondhand smoke, however, you admit that the smell and the smoke itself comes into contact with another human being.

So what? If they dont like it they need not come onto the private property in question. There is no requirement to enter a smoky bar or resturant and no justification to ignore the owners rights to do as he pleases, within the law, on his property. Tobacco is legal so if a person allows it on their property that is the end of discussion, if his/her rights matter.

Yes we can leave and yes they have rights. And when it comes to the Bill of Rights there is a balancing that takes place. In order for rights to be denied strict scrutiny must be established.

A person forbidding the carrying of firearms on private property is not denying anyone's right to do anything. You have no right to be there and he/she has a right to dictate what goes on on their property, again, as long as its legal, they can allow or disallow whatever they choose. We dont have to go there. As I said earlier, you seem to want your rights to outweigh the rights of others. I dont. My right to carry a gun does not outweigh another persons property rights and if they choose to not permit guns in their store, bar, restaurant etc I just wont go.

Strict scrutiny applies to legislation, not business practices, and strict scrutiny is not applied to every infringement of every right. Should be but its not.

So you admit that they 'do not take away your rights.' Which is inclusive of the business and the patron in the sphere of public accommodation.

I admit that zoneing laws etc dont remove your rights. That gets back to liability. You increase your liability by inviting the public into an establishment to make a living. Time has shown that there are certain things that should be required of businesses for the saftey of customers. However that has nothing to do with allowing or dissallowing guns or smoking. It has to do with lighting, exits, parking. Not who or what they permit inside the place.

If its ok to ban smoking in a business for no reason other than it makespeople uncomfortable then what makes a gun different if it makes people, or the owner, uncomfortable? It sets a very bad precedent IMO. A business owner can ban tobacco if he chooses, just like he can say no guns allowed. But the govt mandateing either is wrong just as the govt mandateing that you must allow either would be wrong.

Agreed that it is never a good thing but passively wearing a religious symbol or holstered firearm is not violating someone's rights.

Not in every situation no. But if a property owner were to forbid religous symbolism or firearms on THEIR private property and the govt said they could not, at that point their rights are being violated.

You may disagree, but there is a long historical trail in our courts (common law) regarding these issues concerning many 1st Amendment issues, there are more intricacies but I have tried to give an overview of how there are differences.

Yup,
theres also a long history in our courts of infringements of the second amendment as well. One does not justify the other. Since some courts have found that Illinois ban on carry is ok does that make it so? What of NYC? Their laws were challenged in court many times yet they stand, does that make them right?
I do not like having my rights ignored & watered down and dont expect that property owners should have theirs ignored or watered down so that I can excercise mine against their will on their private property.

 

[Rich B]

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This is a good and worthwhile discussion to have gentlemen, but this has little or nothing to do with the topic of the thread.

I was never asked to leave by the owner and there was no signage. I also advised him of his right immediately upon him making contact.

Good conversation, but is this really the place to have it?

 

[Leverdude]

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My apologies Rich.

I'm unclear on something though, did they drop the disorderly charge in the end or do you need to go to court yet?

At any rate, thanks for what your doing and I'm glad it worked out well.

 

[Rich B]

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As the title says, the case was dismissed. I was falsely arrested. Hopefully the State's Attorney will do the right thing and pursue charges against Mr. Vanaham who was the only one to act in a criminal manner that night.

 

[Leverdude]

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Wouldn't the officers actions have to be illegal too, I'd call false arrest a crime & I'd think cuffing & detaining someone for no reason a bigger crime than yelling at someone. Both people were ignorant of the law but one gets paid to know whats legal & whats not.

 

[Rich B]

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Leverdude wrote:

Wouldn't the officers actions have to be illegal too, I'd call false arrest a crime & I'd think cuffing & detaining someone for no reason a bigger crime than yelling at someone. Both people were ignorant of the law but one gets paid to know whats legal & whats not.

Right. That is why I filed a wrongful arrest complaint and that is why we are putting the word out. I would think most attorneys would be chomping at the bit for this case. I will keep my ear to the ground. One enthusiastic legal beagle and this could go far...

 

[PT111]

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I haven't read everything available on this but it does appear to me that rather than a false arrest in this case the police actually arrested the wrong person. Maybe not too different that if the police are called to break up a fight and only arrest one person who turns out not to be the one who started it. As far as I see it there was a law broken that night, just they arrested the wrong person.

This brings up a question that I am never clear on and that is the definition of "false arrest" I see it used quite often and sometimes even when it seems quite unlikely such as a person found not-guilty of a crime after all the "proper" procedures were followed. One instance was that many people called for O J Simpson to sue for false arrest after he was turned loose. I understand how in some cases it definately should apply and some is shouldn't in my opinion but there seems to be a very big grey area between the two.

 

[Leverdude]

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OJ's different, there was a crime committed & he did it. In Rich's case there was no crime committed by him or even supposedly committed by him. He was arrested for doing something legal. He did it, just wasn't against the law.

 

[PT111]

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Leverdude wrote:

OJ's different, there was a crime committed & he did it. In Rich's case there was no crime committed by him or even supposedly committed by him. He was arrested for doing something legal. He did it, just wasn't against the law.

Not quite. In Rich's case there was an accusation that a crime was committed, however we now know that one was not by Rich. I would say that a crime was committed by his accuser. Let's say you report your car stolen and accuse a certain person of doing it. That person is arrested but it is found to be that the car was never stolen and you had given the person permsion to drive it. Would that be false arrest? I know a little different but still.

Now to the OJ case. [flame suit on] Technically it has never been proven that a crime was committed by ayone. Two people were killed but what if they were killed in self-defense. Then no crime would have been committed. [flame suit off] I know and you know that it dind't happen that way but can we be absolutely sure?

 

[Leverdude]

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PT111 wrote:

Leverdude wrote:

OJ's different, there was a crime committed & he did it. In Rich's case there was no crime committed by him or even supposedly committed by him. He was arrested for doing something legal. He did it, just wasn't against the law.

Not quite. In Rich's case there was an accusation that a crime was committed, however we now know that one was not by Rich. I would say that a crime was committed by his accuser. Let's say you report your car stolen and accuse a certain person of doing it. That person is arrested but it is found to be that the car was never stolen and you had given the person permsion to drive it. Would that be false arrest? I know a little different but still.

Now to the OJ case. [flame suit on] Technically it has never been proven that a crime was committed by ayone. Two people were killed but what if they were killed in self-defense. Then no crime would have been committed. [flame suit off] I know and you know that it dind't happen that way but can we be absolutely sure?

At the risk of derailing Rich's thread again I feel a need to point out that the initial call to police was not about disorderly conduct. It was about open carry of a handgun which isn't a crime if you have a permit. In the other case people were definitely murdered and apprehending the most likely suspect is the correct next move.
Since they responded to the call about Rich the only thing they can do IMO legally was to insure he had a permit & go away. By arresting him for not braking any law they commited a bigger crime, again IMO than any conceivable verbal abuse.
I'v been yelled at before & not felt victimized, but getting arrested in public, handcuffed & taken away for doing something I'v jumped thru hoops to be able to do would surely leave me feeling wronged.