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Is Maine going consitutional carry?

boyscout399

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Imagine this scenario, I'm wandering outside a storefront with my cell phone looking for a good signal, not really paying attention to what is going on around me. I'm stopped by a police officer that says something like, "Sir, please pay attention, you almost stepped in that open man hole," or, "Sir, you seem lost, can I give you directions?" Now, how should I respond to this? Normally, in polite society, I'd thank the officer for his/her concern and continue on. But with a law requiring I inform a police officer that I am armed did this interaction trigger the need to inform? What if I stopped and engaged the officer to ask for directions to a place with Wi-Fi that is nearby? Suppose while I was doing this a car rear-ended another nearby and the police officer asked if I was injured and/or if I had seen what had happened? That is an interaction with a police officer, but bringing up the fact that I am armed does not seem to be relevant to the conversation and would likely only confuse the officer on why I would mention it.
§ 2003-A. Duty to inform law enforcement
When an individual who is carrying a concealed handgun pursuant to the authority of this chapter first comes into contact with any law enforcement officer of this State or its political subdivisions or a federal law enforcement officer during the course of any arrest, detainment or routine traffic stop, that individual shall immediately inform that law enforcement officer of the fact that the individual is carrying a concealed handgun.


Note, during the course of arrest, detainment, or traffic stop.

In your scenario, you would not be required to inform because you are not detained. It's a consensual encounter.
 

boyscout399

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On 28 MAY - Senate Roll Call #102 passed the bill. It was release, as amended to the house on 29 MAY. On 04 June the house passed it and sent it to the governor. Unless the governor specifically vetoes it, after 10 days without the governor's signature it becomes enacted.
The Maine legislature says it was sent back to the Senate and the Senate put it on the Special Appropriations table. My understanding is that meant it needed one more procedural vote by Appropriations Committee before being sent to the Governor. I could be wrong here. I don't know the inner workings and the documents are hard to read and interpret.
http://legislature.maine.gov/LawMakerWeb/summary.asp?ID=280055116
 

IA_farmboy

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[/B]Note, during the course of arrest, detainment, or traffic stop.

In your scenario, you would not be required to inform because you are not detained. It's a consensual encounter.
Let's go back to my scenario of where I'm talking to a police officer to get directions to a coffee shop and there is a fender bender nearby. The officer tells me, "Stay here" and then checks on the people in the vehicles to see if everyone is okay. After that the officer returns to me, takes out a notepad, and then asks me what I saw. At some point this conversation changed from a consensual encounter to my being detained as a witness, or did it?

Another possible situation. I'm standing on the street corner waiting for the crosswalk light to change. A purse snatcher comes running around the corner, collides with me, and we both fall to the pavement. Seconds later a pair of police officers come around that same corner and cuff us both, as the victim gave only a rough description of the suspect and both me and the suspect match the description. In that process my weapon is discovered and taken from me. At this point I was lawfully arrested, assuming I was set free within a reasonable amount of time. Could I be charged for not informing the officer that I was armed?

This law is designed so that only the law abiding can be charged. The purse snatcher could not be charged under this law because he was an actual suspect in a crime, anything he says can be held against him. I was merely an innocent bystander that was arrested in the confusion. We can split legal hairs if you like on whether this law is constitutional, or violates the First, Second, Fourth, or Fifth Amendment. Either way this is a bad law and needs to go. As pointed out this provision may have been needed to convince some fence sitting legislators to vote in favor of the bill but that does not mean the duty to inform part of the law should remain.

Someone might be able to convince me this duty to inform is constitutional but I cannot be convinced that it is a good law. It boggles the mind how someone thought up a duty to inform, where do ideas like this come from?
 

utbagpiper

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There is a right to remain silence.

There is no obligation to speak so your right is the right of silence.
Maybe in some Libertobia or rights theory class that is true. Here in the real world, there are sometimes requirements to speak.

Some jurisdictions have a duty to ID yourself under various circumstances. A defendant's enumerated right to compel you to testify in court certainly over-rides your supposed "right" not to open your mouth.

The enumerated, recognized, constitutional right is not to incriminate yourself. And as others have pointed out, in order to formally invoke this right, you must communicate that your doing so. Simply not answering questions is not sufficient to trigger the protection that forces cops to stop asking questions.

Charles
 

utbagpiper

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This law is designed so that only the law abiding can be charged.
You give the lawmakers too much credit.

The only "design" in most of these types of provisions is to allay some irrational concern. But that irrational fear is sometimes the difference between a yes or no vote in the legislature. So you get what you can this year and then come back to improve it in the future.

As others have pointed out, this duty to inform imposed no new requirements on permit holders. It is a cost incurred only by those who choose to carry without a permit. Thus, the law makes a huge step forward while giving up NOTHING that currently exists. That is an unmitigated win in politics.

Someone might be able to convince me this duty to inform is constitutional but I cannot be convinced that it is a good law. It boggles the mind how someone thought up a duty to inform, where do ideas like this come from?
I don't think anyone is going to argue that the duty to inform is a good law, or what anyone here would want. It seems it was the cost of getting permit-free carry.

The question is, is it better to have permit-free carry with a duty to inform, or to not have permit-free carry?

Under the totality of the circumstances as I understand them, I believe this law is a huge win with nothing surrendered in exchange. The RKBA community didn't get everything we might have hoped for, but what we got (or hope to get soon) is huge and we gave up nothing we currently have.

Charles
 
Last edited:

boyscout399

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I don't think anyone is going to argue that the duty to inform is a good law, or what anyone here would want. It seems it was the cost of getting permit-free carry.

The question is, is it better to have permit-free carry with a duty to inform, or to not have permit-free carry?

Until the totality of the circumstances as I understand them, I believe this law is a huge win with nothing surrendered in exchange. The RKBA community didn't get everything we might have hoped for, but what we got (or hope to get soon) is huge and we gave up nothing we currently have.


Charles
Well said. People, we gave up NOTHING and got ALMOST everything we hoped for. Should we have said "screw it, if I can't get everything than I don't want anything."??? This is a happy occasion.
 

IA_farmboy

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You give the lawmakers too much credit.
Perhaps.

The question is, is it better to have permit-free carry with a duty to inform, or to not have permit-free carry?
I disagree, that's not the question at all. I'm not sure how to phrase the question in twenty words or less. Here's one attempt to put the question into words, where do ideas like a duty to inform come from and how does this provision in the law serve the public good?

I'm not saying that this duty to inform should be cause for the bill to not become law, I'm just trying to wrap my head around how a duty to inform is supposed to convince the hoplophobes to vote in favor of the bill, how the powers that be intend to enforce this law, and how this is not a violation of our right to silence. I know that SCOTUS ruled that a person is supposed to intentionally invoke their right to silence before shutting up but that is a bad opinion bound to be reheard, as pointed out in the dissent it is illogical to assume that a person lacking legal counsel is going to know the "magic words" to say to protect their right to silence.

What happens if a person fails to inform a police officer? What would be the charge? What punishment could be imposed if convicted? I expect this law to be just like the hundreds of other gun laws on the books, it will be rarely or never enforced, if charged then a plea deal will be offered to drop it to a fine, and if the accused wants to take it to court the prosecution will drop the charge. It is highly unlikely one will ever see a courtroom due to being charged with failing to inform a police officer that they are lawfully armed, that is my prediction. Even so this will sit on the books for potentially decades before it is quietly removed by a future law and/or a court rules it unenforceable because some prosecutor had visions of a higher office and needed to show a history of being "tough on crime" ignoring advice to continue playing by the gun grabbers playbook.
 

sudden valley gunner

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Yea statist judges ruling in favor of rights infringers....it is a ridiculous twist....to be silent you must speak up!

No matter what the state says rights are rights, to me they simply don't disappear because rulers pass a positive law requiring one to surrender rights. Its akin to being robbed at gun point.
 

boyscout399

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What happens if a person fails to inform a police officer? What would be the charge? What punishment could be imposed if convicted?
Simply reading the bill would give you the answer to your question.

1. If the officer discovers it, they would issue a ticket.
2. The charge would be a violation of this chapter. This is a civil, not a criminal violation.
3. The punishment would be a $100 fine.
 

IA_farmboy

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This law does not require a person to confess to violating the law. It requires the person to inform the cop that a person IS obeying the law. That being said, I believe there is a huge 4th Amendment issue here...which I will bring up in a moment....
Here's another potential 4th Amendment issue. Police stops a person that they believe to be armed, perhaps the person has been known to be armed, perhaps the police see what they believe to be a print of a firearm on the clothing. The person is not armed but the police ask if the person is armed. The person responds with a blank stare, a polite request to be on their way, a less than polite request to be on their way, or a flat out "No, officer." The officer either does not believe the denial of being armed, or takes the refusal to answer as an admission of guilt. The person is arrested, handcuffed, and searched under the charge of refusal to notify. Don't think this can't happen? I believe it can and it has in places with similar laws.

What happens now? Is this a lawful arrest? Can the unarmed person be charged for not notifying the officer that they are in fact unarmed? What if something incriminating is found? Can that be held against the person? If the person answered truthfully to the question but the officer did not believe the person then an arrest is made, search performed, and say a bag of pills was found. Is that fruit of the poisoned tree?

The only way I believe this law can be enforced is by violating our 4th Amendment rights.

Here's a question that just came to mind, what if a person informs an officer that they are armed when they are not? Why would anyone do that? Well, some people are just not right in the head.

It appears that NavyLCDR and I came to the same conclusion but just took a different path to get there.

I will again emphasize that a person that is not lawfully carrying a concealed weapon cannot be compelled to notify an officer of being armed. I can see someone twisting this law to enable police to stop and frisk anyone they choose, it might not happen but I suspect it could.

Another issue with the law, and a lot of laws on firearms really, is that we're just exchanging one piece of paper for another. Anyone armed will have to carry identifying papers that can prove who they are, their age, and potentially their status as a member of the military. Put another way it appears the burden of proof lies on the armed citizen that they are lawfully armed if stopped by a police officer.

I don't want to sound like I'm a complete downer, this law is still a HUGE step forward. I'm just pointing out that there is still a long way to go.
 

boyscout399

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Here's another potential 4th Amendment issue. Police stops a person that they believe to be armed, perhaps the person has been known to be armed, perhaps the police see what they believe to be a print of a firearm on the clothing. The person is not armed but the police ask if the person is armed. The person responds with a blank stare, a polite request to be on their way, a less than polite request to be on their way, or a flat out "No, officer." The officer either does not believe the denial of being armed, or takes the refusal to answer as an admission of guilt. The person is arrested, handcuffed, and searched under the charge of refusal to notify. Don't think this can't happen? I believe it can and it has in places with similar laws.

What happens now? Is this a lawful arrest? Can the unarmed person be charged for not notifying the officer that they are in fact unarmed? What if something incriminating is found? Can that be held against the person? If the person answered truthfully to the question but the officer did not believe the person then an arrest is made, search performed, and say a bag of pills was found. Is that fruit of the poisoned tree?

The only way I believe this law can be enforced is by violating our 4th Amendment rights.

Here's a question that just came to mind, what if a person informs an officer that they are armed when they are not? Why would anyone do that? Well, some people are just not right in the head.

It appears that NavyLCDR and I came to the same conclusion but just took a different path to get there.

I will again emphasize that a person that is not lawfully carrying a concealed weapon cannot be compelled to notify an officer of being armed. I can see someone twisting this law to enable police to stop and frisk anyone they choose, it might not happen but I suspect it could.

Another issue with the law, and a lot of laws on firearms really, is that we're just exchanging one piece of paper for another. Anyone armed will have to carry identifying papers that can prove who they are, their age, and potentially their status as a member of the military. Put another way it appears the burden of proof lies on the armed citizen that they are lawfully armed if stopped by a police officer.

I don't want to sound like I'm a complete downer, this law is still a HUGE step forward. I'm just pointing out that there is still a long way to go.
Why are they stopping him in the first place? Being armed is not a crime. They can't stop him merely because he's armed. This is a 4th Amendment violation at the outset. There's even circuit court precedent on this now(6th Circuit Northrup v. Toledo Police Dept. and 4th Circuit United States v Black). Has nothing to do with the new statute in Maine. What if scenarios are countless and really serve no purpose.
 

IA_farmboy

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Why are they stopping him in the first place? Being armed is not a crime. They can't stop him merely because he's armed. This is a 4th Amendment violation at the outset. There's even circuit court precedent on this now(6th Circuit Northrup v. Toledo Police Dept. and 4th Circuit United States v Black). Has nothing to do with the new statute in Maine. What if scenarios are countless and really serve no purpose.
The person could be stopped for a number of reasons, only now with this law a person can be fined for failure to inform. Failing to inform would be nearly impossible to prove but courts tend to take the word of the police officer over that of the suspect. Even if a person is able to argue out of having to pay the fine they'd have to be inconvenienced by having to go to court. Even if someone broke no law, informed the officer as required, a zealous officer could still write a citation forcing the person to either pay the fine or appear in court.

Getting back to why a person might be stopped, I have a few ideas:
- Public intoxication (I don't know about Maine but in Iowa we have some seriously messed up public intox laws, anyone can be caught up with this here.)
- Appearing too young to be armed (I've been accused of looking much younger than my age, at least no one asks me for ID to see an R-rated movie any more but I do get carded for buying alcohol)
- Suspected of carrying where not permitted. (Federal gun free school zone law still requires a permit to carry within sight of a school, also restaurants can require disarming before entering if posted)
- Jaywalking
- Littering
- Loitering
- Any of a number of minor violations

I've seen how hoplophobes have been exceedingly creative in "interpreting" seemingly innocent laws on weapons into a means to oppress. I've learned my history and am telling others about it so that perhaps we will not be doomed to repeat it.

I recall seeing a court case recently that said that police can stop a person only on the basis of being armed. I've did some searching but I haven't found it yet.
 

boyscout399

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The person could be stopped for a number of reasons, only now with this law a person can be fined for failure to inform. Failing to inform would be nearly impossible to prove but courts tend to take the word of the police officer over that of the suspect. Even if a person is able to argue out of having to pay the fine they'd have to be inconvenienced by having to go to court. Even if someone broke no law, informed the officer as required, a zealous officer could still write a citation forcing the person to either pay the fine or appear in court.

Getting back to why a person might be stopped, I have a few ideas:
- Public intoxication (I don't know about Maine but in Iowa we have some seriously messed up public intox laws, anyone can be caught up with this here.)
- Appearing too young to be armed (I've been accused of looking much younger than my age, at least no one asks me for ID to see an R-rated movie any more but I do get carded for buying alcohol)
- Suspected of carrying where not permitted. (Federal gun free school zone law still requires a permit to carry within sight of a school, also restaurants can require disarming before entering if posted)
- Jaywalking
- Littering
- Loitering
- Any of a number of minor violations

I've seen how hoplophobes have been exceedingly creative in "interpreting" seemingly innocent laws on weapons into a means to oppress. I've learned my history and am telling others about it so that perhaps we will not be doomed to repeat it.

I recall seeing a court case recently that said that police can stop a person only on the basis of being armed. I've did some searching but I haven't found it yet.
I'll approach this line by line:

- Public intoxication - If a person is detained for suspicion of public intox, then the officer believes they are breaking the law and the person must inform... Solution: Don't look or be intox in public.
- Appearing too young to be armed - If the officer has a reason to believe you are breaking the law, he may detain you and you must inform if carrying. Solution: Inform as the law requires, nothing else. Burden is on officer to prove you're too young, not on you to prove you're old enough. They can't cite without probable cause.
- Suspected of carrying where not permitted. - The default status is not illegal carry. See the circuit cases I quoted earlier. They must assume you have the permit if they have no reason to believe otherwise. They can't stop you for that and that alone. In a restaurant that serves alcohol and is posted to prohibit firearms, then you're breaking the law by carrying there. Solution: Don't carry in bars where firearms are not allowed.
- Jaywalking - Officer has reasonable suspicion of crime if he sees you jaywalk. You must inform. Solution: Don't jaywalk.
- Littering - Officer has reasonable suspicion of crime if he sees you litter. You must inform. Solution: don't litter
- Loitering - Public or private property? IIRC the supreme court has ruled that laws against loitering on public property are invalidated (Chicago v Morales)
- Any of a number of minor violations - If the officer has reasonable suspicion of the violation and is able to point out specific articulable facts that give him such suspicion, then he can detain you, and you're required to inform.

This isn't rocket science here. Yes, people can be stopped for multiple reasons and if you don't inform, then you will be fined. Why would you be fined? Because you broke the damn law!!! Arguing that it's impossible to prove in court, no different than speeding tickets generally... It's the officers word against yours, yet time and again, they're upheld.

As to your zealous officer comment. Again, no different than an overzealous officer accusing you of speeding, or jaywalking, or littering, or any other number of various civil infractions. With no witnesses, the courts generally side with the officer. What's your recourse? Bring it to the brass, file complaints, etc. No different than the other offenses an "overzealous" officer can commit against the public. Generally in my experiences, officers aren't making up crimes, and if they do, they're quickly discovered and removed.

You're talking about a small minority of officers acting OUTSIDE the law. This law neither adds to or removes any power from those types of officers. That's an entirely different discussion.
 

IA_farmboy

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I did some more searching and I think the case I'm thinking of might be Northrup v. Toledo, I think this case is actually the appeal to the case I'm thinking of. Why was he stopped? Because he was armed. But being armed is not a crime you say? Doesn't matter, he was still stopped, questioned, handcuffed, and searched. What concerns me is that this duty to inform is going to cost the state and its citizens a lot of money because some police officer is going to stop someone even though they were lawfully armed and cite the person for failure to inform to give some sort of justification for the stop. The only people that are going to win on this are the lawyers.

Will disposing of the duty to inform rectify this? Not entirely. Without the possible reward of getting at least a failure to inform citation out of an encounter a police officer is less likely to confront people. Without a fine hanging over someone's head it would be much easier for someone stopped to just shrug off the 4th Amendment violation and forget it even happened.

Is it possible my fears would never come to pass? Absolutely, as I said before this law is quite likely to be one one of thousands that are never enforced. It is also possible that some police chief will get a wild hair and think it would be a good idea to have every armed person stopped to make sure they are not a prohibited person. Anyone that tries to inform an officer of their rights is more likely to get a citation, meaning having to pay the fine or take the time to appear in court.

I write all of this and forget that the bill hasn't actually become law yet. It seems this is more a matter of "when" than "if" given the votes in the legislature and what the governor has said. How soon can we expect to hear if this has become law?
 

boyscout399

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I recall seeing a court case recently that said that police can stop a person only on the basis of being armed. I've did some searching but I haven't found it yet.
I think you're getting it backwards. Recent Cases of Black v US in the 4th Circuit from 2013 and Northrop v Toledo Police Dept. from 2015 in the 6th Circuit both say that carrying a firearm where legal does not give rise to reasonable suspicion of crime and is not valid as a reason to detain or frisk someone.
 

boyscout399

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I did some more searching and I think the case I'm thinking of might be Northrup v. Toledo, I think this case is actually the appeal to the case I'm thinking of. Why was he stopped? Because he was armed. But being armed is not a crime you say? Doesn't matter, he was still stopped, questioned, handcuffed, and searched. What concerns me is that this duty to inform is going to cost the state and its citizens a lot of money because some police officer is going to stop someone even though they were lawfully armed and cite the person for failure to inform to give some sort of justification for the stop. The only people that are going to win on this are the lawyers.

Will disposing of the duty to inform rectify this? Not entirely. Without the possible reward of getting at least a failure to inform citation out of an encounter a police officer is less likely to confront people. Without a fine hanging over someone's head it would be much easier for someone stopped to just shrug off the 4th Amendment violation and forget it even happened.

Is it possible my fears would never come to pass? Absolutely, as I said before this law is quite likely to be one one of thousands that are never enforced. It is also possible that some police chief will get a wild hair and think it would be a good idea to have every armed person stopped to make sure they are not a prohibited person. Anyone that tries to inform an officer of their rights is more likely to get a citation, meaning having to pay the fine or take the time to appear in court.

I write all of this and forget that the bill hasn't actually become law yet. It seems this is more a matter of "when" than "if" given the votes in the legislature and what the governor has said. How soon can we expect to hear if this has become law?
This case determined that the officer BROKE THE LAW in detaining and searching Mr. Northrup. The officer himself is now civilly liable. The OFFICER is getting sued personally because the OFFICER broke the law. He gets no qualified immunity because he violated the constitution and effected and unlawful arrest.

"It is also possible that some police chief will get a wild hair and think it would be a good idea to have every armed person stopped to make sure they are not a prohibited person." That would be a violation of the 4th Amendment as determined by both of the cases I previously cited. No different than a police chief getting a bug up his butt and deciding he's going to stop every motorist to check their driver's license. Not permissible.

"because some police officer is going to stop someone even though they were lawfully armed and cite the person for failure to inform to give some sort of justification for the stop." That would be a violation of the 4th Amendment if they were stopping them JUST because they were armed. If they're stopping for another reason and the person doesn't inform, then they can be cited for that because they BROKE THE LAW. No different than them stopping you for speeding and then discovering you have no car insurance and citing you for that as well...

What's the solution? If you're stopped and you're carrying concealed without a permit, INFORM THE OFFICER! It's not a huge incomprehensible burden dude. You're arguing all these what ifs and stuff. What if the cop is breaking the law? What if the police chief is directing the cops to break the law? Dude, if the cops are bad, there's much worse they could do than issue a $100 fine. They could kill you and bury your body in the woods. They could throw you in jail without trial for years like they did to a guy in New York who just killed himself. They could arrest you and accuse you of assaulting them. Your argument is a straw man argument.
 

boyscout399

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I write all of this and forget that the bill hasn't actually become law yet. It seems this is more a matter of "when" than "if" given the votes in the legislature and what the governor has said. How soon can we expect to hear if this has become law?
I'm slightly unclear about the bill's next steps. Right now it was passed by the house and senate and is in Concurrence (meaning they both passed the same wording).

This is the last action:

Last Senate Action6/4/2015 - On motion by Senator VALENTINO of York PLACED ON THE SPECIAL APPROPRIATIONS TABLE pending ENACTMENT , in concurrence.

I'm unsure if this means that the special appropriations committee needs to finalize it before it goes to governor, of if this means that it's on the governor's desk awaiting signature, then it goes to appropriations.

If its awaiting governor since 6/4, then the 18th is 10 business days and it would be enacted with or without his signature. I'm patiently awaiting Thursday. If the Governor signs or vetos before then, we'll know earlier. I think Thursday is the latest we should know.
 

IA_farmboy

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You're talking about a small minority of officers acting OUTSIDE the law. This law neither adds to or removes any power from those types of officers. That's an entirely different discussion.
I see our posts crossed and I think I addressed most of this already so I'll try to be brief.

The examples I gave were reasons why someone might be stopped, not necessarily implying that the person was armed at the time or that the person did commit the crime they are accused of. Yes, entering a restaurant while armed when a notice is posted is unlawful but a police officer is not likely to know that a bulge on the belt is not a firearm but is in fact an insulin pump until the person is searched. A person may walk past some litter and an officer may stop and ask that they pick up "their" trash, had that happen to me.

This bill has a lot of "ifs", "ands", and "therefores" making this more complex than it should be. People are required to inform of a concealed weapon unless they have a permit. People under 21 cannot carry concealed unless they are in the armed forces. And so on. The bill as written originally was so clean and then some hoplophobes, and the governor, made it complicated. This complication makes it much easier for someone to unintentionally violate the law and/or make it more difficult to give a defense in court.

Lastly, yes, this does nothing to prevent officers from acting outside of the law. The problem I see is that it can embolden officers and empower unlawful actions because of the amendments added to gather favor from legislators and the governor. Seems to me that this could have been avoided by not asking for the governor's signature and just allow it to become law without it. The governor didn't say he'd veto the law, just that he would not sign as it was.

A side note: You say "a small minority of officers" but I've heard otherwise. As you said, that is entirely a different discussion.
 
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