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Definition of CC

dale59911

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May 22, 2014
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Montana
A question came up on the interpretation of the Montana definition of concealed, which is different than most states.

"Concealed weapon" means any weapon mentioned in 45-8-316 through 45-8-318 and 45-8-321 through 45-8-328 that is wholly or partially covered by the clothing or wearing apparel of the person carrying or bearing the weapon

The question here is the "partially". Another state shooters forum discussed the switch from concealed to open carry by pulling up your shirt, tucking it under the grip of the handgun when they go from places that allow open carry but not concealed. Some of the examples shown were using IWB holsters. With an In the Waist Band holster, the firearm is always partially covered by the clothing since it is shoved down inside your jeans.

I have an LEO friend that tells me this would always still be considered concealed in Montana. Any thoughts or case history on this?
 

slapmonkay

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A question came up on the interpretation of the Montana definition of concealed, which is different than most states.

"Concealed weapon" means any weapon mentioned in 45-8-316 through 45-8-318 and 45-8-321 through 45-8-328 that is wholly or partially covered by the clothing or wearing apparel of the person carrying or bearing the weapon

The question here is the "partially". Another state shooters forum discussed the switch from concealed to open carry by pulling up your shirt, tucking it under the grip of the handgun when they go from places that allow open carry but not concealed. Some of the examples shown were using IWB holsters. With an In the Waist Band holster, the firearm is always partially covered by the clothing since it is shoved down inside your jeans.

I have an LEO friend that tells me this would always still be considered concealed in Montana. Any thoughts or case history on this?

The simple of it is, its a gray zone.

If I recall correctly, Montana uses a reasonable person standard in determining whether the weapon is concealed or not. Ill try and find the a case that I think I am recalling that from. However, I don't recall any case law that specifically calls out the use of IWB holster.

Of note, I have also heard several times of an email to the AG office asking clarification if an IWB Open Carry would be considered partially concealed or openly carried and the reply was that it would be considered openly carried and not concealed. However, I personally have not seen this email to confirm its contents.

While its not directly related, Its also good to remember that conceal carry laws are only relevant while within the boarders of an incorporated city. See MCA 45-8-317 for conceal carry exceptions, specifically (i).

MCA 45-8-317 said:
(i) a person who is outside the official boundaries of a city or town or the confines of a logging, lumbering, mining, or railroad camp or who is lawfully engaged in hunting, fishing, trapping, camping, hiking, backpacking, farming, ranching, or other outdoor activity in which weapons are often carried for recreation or protection;
 
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dale59911

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May 22, 2014
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Montana
The simple of it is, its a gray zone.

If I recall correctly, Montana uses a reasonable person standard in determining whether the weapon is concealed or not. Ill try and find the a case that I think I am recalling that from. However, I don't recall any case law that specifically calls out the use of IWB holster.

Of note, I have also heard several times of an email to the AG office asking clarification if an IWB Open Carry would be considered partially concealed or openly carried and the reply was that it would be considered openly carried and not concealed. However, I personally have not seen this email to confirm its contents.

While its not directly related, Its also good to remember that conceal carry laws are only relevant while within the boarders of an incorporated city. See MCA 45-8-317 for conceal carry exceptions, specifically (i).

Thanks for the info. I would love to get a copy of that email. I will have to repost on another forum because I put out some incorrect information regarding this.
 

dale59911

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I actually ended up sending an inquiry to the MT AG....I asked the question pretty specifically so I will see whether we get a specific answer or legal tap dancing. :banghead:
 

DCR

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Partially is the key

Without going to Black's Law Dictionary to further parse the word (which would invariably lead to further nebulous terms like "substantially" or "in part," "noticeably," "significantly" and the like), and having researched the question in other states, we always teach that "anything less than fully exposed is concealed" because, given the vagueness of the statute, it is enough to give an officer probable cause to contact, cite, and/or arrest. I know, it seems unfair, but this is how the prosecutors and judges seem to be going the past few decades, and unless and until the legislature makes it crystal clear, it's likely a losing battle to go against that interpretation.

Problem is, police and sheriff associations, and prosecuting attorney associations, as well as private corrections industries, lobby state legislatures to keep the terms vague to ensure they have the broadest discretion possible to "better do their jobs." Lesson: be careful who you vote for; keep voting for the same party and people, and you will keep getting the same.

Invariably the next question in class is "what about a holster, then?" Interestingly, there's an old case in Idaho, in which the dissent (unfortunately, the losing opinion) explores this question, and asserts that the whole point of concealed weapon statutes is to target the nefarious guy who's trying to hide a weapon so it can go undetected, enabling him to use it to further his evil ends. A hip holster, though, is worn outside the body, and where it is the choice and practice of law enforcement and others who "have nothing to hide," is not considered "concealed" for purposes of the statute. This is the better reasoning, and likely would be adopted by a judge and/or jury (unless the jury instruction excludes it-but that's another topic for another thread) in a concealed weapons case.

So, in the spirit of open carry and this forum, I'll reiterate my conclusion to be safe: Anything less than fully exposed is concealed.
If you're going to OC, be "loud and proud" in your accessories (not demeanor, though!)
And if you want to avoid any court problems, get your CCW...that way, when you OC, you're at least protected from a BS charge and the cost of asserting your innocence. While I understand that many object as a matter of principle to "licensure" to exercise a Constitutional right, and to the .gov having you on a "list," the reality is that the price of principle may be high unless and until the "us vs. them" mentality and training in law enforcement is eradicated.
 
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MONTANA1899

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Montana
Open Carry Reply from MT AG ?

I actually ended up sending an inquiry to the MT AG....I asked the question pretty specifically so I will see whether we get a specific answer or legal tap dancing. :banghead:
Did you receive a reply from MT AG ? If so, what was the answer ? In writing or verbal ?
 

Maverick9

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Mid-atlantic
Get one of those shower slippers that is clear heavy duty plastic and duct tape it to your belt, toe-side down. Win-Win. Cheap, durable and transparent; bonus, duct-tape.
 

Grapeshot

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I actually ended up sending an inquiry to the MT AG....I asked the question pretty specifically so I will see whether we get a specific answer or legal tap dancing. :banghead:

Did you receive a reply from MT AG ? If so, what was the answer ? In writing or verbal ?

I doubt that he got a response from the Attorney General. The AG represents the state and generally only answers questions from state officials.
 

DCR

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Exactly.

I doubt that he got a response from the Attorney General. The AG represents the state and generally only answers questions from state officials.

Spot on.

And Tim Fox is an extremely busy man. But he is a gun guy, FWIW (long time family friend).

Here's how you get around it: since the AG represents the state of Montana, contact your local legislator (state level representative or senator), explain that there's an ambiguity as to what is "concealed," and urge them to request an AG opinion on the subject.

TIP: Make your query to your legislator in writing (not email, a phone call, or a personal face-to-face meeting (unless you're close personal friends)).

NOTE: Many state AG's have differing levels of "opinions," e.g., "informal letters," "informal opinions," and "formal opinions." Understand that a "formal opinion," if there is such a designation in MT, will involve significant research by deputies, review and refinement by supervisors, and ultimate signature by Mr. Fox. Find out if MT does have differing levels of opinion, because if so, a formal one will take a lot of time and work, and your legislator won't get an answer quickly.

Good luck and Godspeed.
 

davidmcbeth

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I doubt that he got a response from the Attorney General. The AG represents the state and generally only answers questions from state officials.

AGs have duel roles .. they represent that state and also represent the people (even individually if appropriate).
 

dale59911

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May 22, 2014
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Montana
I apologize for not responding.....I did not get an answer from the AG of Montana but I have just submitted a request, in writing as suggested through my State representative. If I do get an answer I will post it.
 

Damaboo

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Sep 5, 2015
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Kalispell, Montana
Gun in soft case

The simple of it is, its a gray zone.

If I recall correctly, Montana uses a reasonable person standard in determining whether the weapon is concealed or not. Ill try and find the a case that I think I am recalling that from. However, I don't recall any case law that specifically calls out the use of IWB holster.

Of note, I have also heard several times of an email to the AG office asking clarification if an IWB Open Carry would be considered partially concealed or openly carried and the reply was that it would be considered openly carried and not concealed. However, I personally have not seen this email to confirm its contents.

While its not directly related, Its also good to remember that conceal carry laws are only relevant while within the boarders of an incorporated city. See MCA 45-8-317 for conceal carry exceptions, specifically (i).

I'm assuming because of the wording of what a Concealed Carry is in Montana, a gun in a handled soft case would not be considered concealed which means you could carry into a place as if open carry?
 
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