Legally carrying a weapon is a crime
wait, does that count as Arson?
Look, I dislike guns. I dislike them a lot. I don’t believe that people kill people, rather that guns – the objects from which projectiles are discharged at a high rate of velocity, thereby permitting them to enter the bodies of individuals, causing fatal damage to bodily organs – kill people. I’d rather there weren’t any, or at the very least, we had stringent gun control laws.
But do you know what I dislike more? Stupid laws and even stupider interpretation of laws that criminalize perfectly legal conduct. Somehow, despite my strict personal opposition to guns, it is still legal to carry a licensed firearm in Connecticut. In public. Openly.
Yet, for some reason, the state’s “top criminal justice official” – a made up title if I ever heard one – wouldn’t recommend it. Why, you might logically ask, is it not a good idea? For the same reason that photographers across the country are being arrested for videotaping police encounters with civilians: because no one knows the law (see also this post by Balko on an issue similar to the one in the instant post).
I’m not making this shit up.
Mike Lawlor, already featured in one post today for his sage legal prognostications, offers up another:
“In almost every situation you can imagine this happening in, it qualifies as breach of peace,” he said. “If you walk into a restaurant with a gun it’s almost by definition a breach of peace.”
That results in an arrest and sets in motion a chain of events that usually results in the revocation of an issued pistol permit, he said. And that’s the way it should be, Lawlor said. Anyone who walks into a McDonalds plainly carrying a firearm either intends to alarm people or is irresponsible, he said.
“Almost by definition”? Oh, really? Challenge Accepted! Here‘s the relevant Breach of Peace statute:
(a) A person is guilty of breach of the peace in the second degree when, with intent to cause inconvenience, annoyance or alarm, or recklessly creating a risk thereof, such person: (1) Engages in fighting or in violent, tumultuous or threatening behavior in a public place; or (2) assaults or strikes another; or (3) threatens to commit any crime against another person or such other person’s property; or (4) publicly exhibits, distributes, posts up or advertises any offensive, indecent or abusive matter concerning any person; or (5) in a public place, uses abusive or obscene language or makes an obscene gesture; or (6) creates a public and hazardous or physically offensive condition by any act which such person is not licensed or privileged to do. For purposes of this section, “public place” means any area that is used or held out for use by the public whether owned or operated by public or private interests.
Openly carrying a licensed weapon into a public place doesn’t fit subsections (1), (2), (3), (4), (5) or (6). You know what that means? It’s not, by definition, a breach of peace. But maybe he was tired from all that prognostication and encountered a “slip of the tongue”. Maybe what he meant was “Creating a Public Disturbance”. Contrived Challenge Accepted! Here‘s the statute:
(a) A person is guilty of creating a public disturbance when, with intent to cause inconvenience, annoyance or alarm, or recklessly creating a risk thereof, he (1) engages in fighting or in violent, tumultuous or threatening behavior; or (2) annoys or interferes with another person by offensive conduct; or (3) makes unreasonable noise.
I’m no legal scholar, but I see three strikes there. Yerrrrout! (I don’t…just…don’t ask.)
What Lawlor is essentially saying is that one shouldn’t legally carry a legal, licensed firearm in public, which one legally can do, because cops are stupid and don’t know that law and you’ll get falsely arrested for perfectly legal activity. So he’s doing you a public service, really. It’s like telling people not to walk around with large, brown plastic glasses and a 70s pornstar mustache because people may mistake you for a child molester and then you’ll get arrested and whatnot.
But, you might protest, it’s only Lawlor, a former legislator and now a bureaucrat. That’s not evidence of anyth-:
When asked in a phone interview last week if people are allowed to openly carry firearms with a permit, state police spokesman Lt. J. Paul Vance said, “Good question.”
“Does it frighten people? Yes,” he said. “There is no standard quick answer to this question.”
-Oh. Notice how he quickly answers the question “yes” and then says there’s no standard quick answer. This is dangerous because it’s indicative of a “winging it” style of policing. “Arrest first; find crime later” seems to be the motto. And we all know what happens once you get trapped in the quagmire that is the criminal justice system.
The simple solution, of course, is to make it illegal to openly carry a weapon in public:
Lawlor, a former lawmaker, said that personally he was no fan of guns but said he wasn’t inclined to have a discussion in the legislature over changing the law. It would be a difficult sell for gun rights activists, who he conceded raise some valid points. If taking out a gun is illegal under any circumstances, why would people carry them, he asked.
He said he prefers the way the law is written now, where it is on the gun owner to behave responsibly.
“You want to have a gun? Fine, but you have to accept the responsibility that goes with it.”
Funny that he exhorts gun owners to behave responsibly, but doesn’t care about the illegality of the arrests that ensue from that responsible, legal, behavior.
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about 6 months ago
A little too facile. A guy walks into a Dunkin Donuts, which is naturally filled with on-duty cops, openly carrying a weapon. No one says a word, because they have no clue whether he’s licensed or not, and no reason to assume that he isn’t licensed.
The guy then blows away all the cops.
He wasn’t licensed.
The problem with open carry in states where people don’t ordinarily walk around armed and with guns exposed is that there would be no way to distinguish the lawful man with gun and the criminal. So do the cops stop the licensed carry guy, or let the armed criminal shoot up the place? That’s the question that defies an easy answer.
about 6 months ago
I agree with you there, but that’s not exactly the situation I’m writing about. Approach the guy, ask him if he has a license, and if he does, leave him alone. You don’t arrest him for doing something perfectly legal.
As FL Cop says, if there’s a guy with a gun intent on shooting someone it’s not going to matter if he’s carrying openly or not.
The question raised is, what do the cops do when they come across someone who is carrying a perfectly legal weapon, with a permit, as allowed by the laws of CT?
about 6 months ago
We’ve seen the vids of the guy lawfully carrying, stopped by cops to check it out. These are set ups, intended to test the point, whether a person lawfully exercising a right is going to be stopped and made to prove he’s lawful.
Arrest for doing so because it upsets the sensibilities of Muffy and Biff is obviously wrong for the reasons you state. And I’m not arguing the merit of walking around with a gun on display, which I see as idiotic (though Joel would have seen differently). But if not arrested, then what? If it’s a right, then he shouldn’t be bothered. But then, how do we distinguish the lawful guy from the unlawful guy?
What’s interesting is that FL Cop is willing to give the carry guy the benefit of the doubt. I can’t imagine a single cop in NY or CT doing the same. Not one.
about 6 months ago
That’s a valid point and I’m not sure there’s an answer to that: do we err on the side of “caution” and illegally arrest people or do we assume that people are carrying legally and run the risk of not being able to prevent violence before it happens – although the latter occurs anyway.
I thought of Joel while writing this post and again when you posted your first comment – welcome back, by the way – and it made me sad. Now I’m sad again.
about 6 months ago
Your Dunkin Donuts assassin would be better off driving his car into the shop. He’d kill more of the policemen, and have a better chance of surviving himself.
Automobiles are much deadlier than guns.
about 6 months ago
@shg
In the case you propose, the unlicenesed shooter would likely be just as deadly if he had concealed the weapon. In fact he would likely be even more effective, with the element of surprise that a concealed weapon would provide. At least if he carries the weapon out in the open, his actions will likely be observed more closely, as his threat potential would be obvious.
Your armed criminal anaogy at the end is just as misguided. Concealed or not, you are just as armed and just as deadly.
I assume everyone is armed.
about 6 months ago
While I am in awe of your mastery of the obvious, perhaps the analogy would make greater sense to you if you were to consider it in light of the point of the post, the distinction between lawful and unlawful open carry, rather than the effectiveness of shooting cops in Dunkin Donuts.
A subtle distinction, I realize, but the sort of thing that makes issues worthy of discussion.
Assuming you’re actually a cop, what would you do if you see a fellow walking about with a visible weapon? If your answer is that you would stop and demand verification that his possession is lawful, how do you square that with the fact that a person lawfully entitled to do so has a right not to be molested by every cop who comes along?
Or do you place your interest in safety above his right to freely exercise his right to open carry?
about 6 months ago
I was commenting the proposed scenario, sorry if it hurt your feelings, but it is not a fraught with complex conflict as you may see. The person in the donut shop is just exercising their rights, until there is a reason to think otherwise.
So now that we have traded personal barbs, let’s try to remain civil.
If open carry is legal in the jurisdiction where this is happening, you have to assume that the person is doing so lawfully. So unless you know of other information about the person you take no action and observe. If open carry is not legal, obviously (again demonstrating my mastery) you take the appropriate action.
In short if an activity is legal, I have no interest in initiating contact with a person.
Now as far as assuming whether or not I am a cop, well that would be a safe assumption.
In Florida I would take action, as there is a reasonable suspicion that a crime has taken place (there is no open carry here, so carrying a weapon in plain sight would be the crime, concealed weapons permit or not).
It sounds like in CT I would not have any reasonable grounds to believe that a crime had taken place, based simply on the fact that I see a person carrying a legal weapon.
I would not place my safety above his right to carry, because it is his right.
Now that is based on just seeing a person. If I have cause to believe (that I can articulate, and that is reasonable) that the person may have been involved in a crime, I would have the right to stop and frisk, before interviewing, as a point of officer safety.
That would apply whether or not the person was visibly armed or not.
It sounds to me like you may be biased and expect to be harassed.
I would not condone harassment.
about 6 months ago
I’m impressed with your reply, and (again showing your mastery of the obvious) recognition that I’m biased. Few cops I know would let a fellow walk about with a gun in the open, but then, up north where I am (which is next to CT, where Gideon is), we have a long history of not like guns and finding their public display unacceptable.
However, your reaction is, in my biased view, the only proper way to handle it. Whether it’s more efficacious to conceal a weapon or display it if one was inclined to shoot up Dunkin Donuts, most officers around here would be loathe to allow a guy with a visible gun to go unmolested. However, I don’t expect to be harassed as I don’t (and won’t) carry a gun. Not my thing.
about 6 months ago
I agree with this. If I saw a man walking about with a gun in public up here in the Northeast, I’d want an officer to go over and ask that gentleman what he was doing. If it was determined that he had a valid license to carry, however, I wouldn’t want him arrested. I’d just leave the area, since guns make me uncomfortable.
The alternative is arresting him and then we might as well just outlaw guns.
about 6 months ago
Professionalism is the one true thing we have which we can hone, in an attempt to gain an advantage, whether it is professionalism in law, tactics, communication, physical condition, etc. they are all important. And in this case you must know the law, and your place in it.
By definition, as a law enforecment officer, you regularly put your safety at risk to protect the rights of others, even those who are doing things with which you may have a personal moral issue with, as they are within thier legal rights.
Conversely, I would do anything to stay safe, within my legal rights as well.
As a society we should be tempered by fear, but not driven by it.
So, if the people in a particular jurisdiction find that they do not want people to openly carry weapons, then they should work to change the law, as opposed to expecting the law enforcement officers to take unlawful actions.
about 6 months ago
You say guns kill people. On the surface, you’re right and I understand your point but I have never found it persuasive. Don’t knives / baseball bats / cars / bare fists all kill people as well if used the right way? It just seems the argument ‘guns are bad because they can kill you’ is a weak one. If you take away the gun, something else will take its place…that’s just human nature.
All of that said, open carrying IS pretty stupid. It’s hard to imagine a scenario where it’d be good for others to know you were armed. To change shg’s hypo a little, suppose you’re open-carrying in Dunkin Donuts when an armed robber comes in. Any advantage you might have had to control the situation / save someone’s life is now out the window. Not to mention that open carrying indeed tends to scare people needlessly.
about 6 months ago
I, master of the obvious (see post above
) agree 100% with Cole.
about 6 months ago
Yes, but I can’t kill you with a baseball bat at 100 feet away while you’re running in the opposite direction. Plus, the likelihood of one “act” (one shot, one swing of a bat, one stab of a knife) killing you is much greater with a gun. Look, I know, in the end, people also kill people, but if we took away the ease with which they can do it with guns, don’t you think there’d be a drop in violence?
As far the hypo, I don’t disagree that it’s stupid to do it, but that doesn’t make it illegal and certainly one shouldn’t be arrested for it.
about 6 months ago
I think differences in philosophy may prevent us from agreeing on this point. Would taking away guns reduce violence? I don’t know. My gut says no, that the nature of the violence will change but its existence will not decrease. I have no crystal ball and so I am unable to say.
Let’s give you the benefit of a doubt and say that violence would decrease. The question is now an “at what cost” question. Some people will feel giving up guns to reduce violence is a small price to pay…others will feel the cost is great. And the process of how an individual assesses the costs/benefits is so rooted in personal experience/values/philosophies that it becomes a debate that cannot be resolved.
With respect to the open-carry hypo I mentioned, we agree 100%. I didn’t intend to suggest one should be arrested for it so that’s a communication failure on my part.
about 6 months ago
If you can make that shot with a typical handgun, you are a damned good shot or your target is VERY unlucky. Handguns are far less lethal that the media has lead us to believe. I’ve had cases where the victim was shot a half-dozen times in the torso with a medium caliber handgun round and lived to testify; and cases where the victim was hit once in an artery with a .22 pistol and bled to death. When police study their own use of guns, they find most shootings take place at 0 to 10 feet, and over half the shots fired miss due to movement, stress, bad lighting, etc. — that’s not to say that handguns are not dangerous, but particularly as a defense attorney, you need a realistic idea what they can, and can’t do.
For most folks, the difference in time to draw and fire a gun from an open holster vs. a concealed one is so small as to have almost no tactical effect, and the person using the concealed holster has the element of surprise.
In Mass, it is accepted wisdom among licensed gun owners that it is illegal to openly carry (the statute is quite vague on this point), and that even if it isn’t technically illegal, in most places outside a gun show, shooting range, or gun store, it is likely to result in a “man with a gun” call to 911 and the responding officers will find some vaguely worded statute like breach of peace or creating a public nuisance to bust you on. Even if dismissed, the cost and annoyance of the arrest is a significant deterrant. Add to that that the Mass carry permit is issued at the discretion of the police and can be revoked at any time if they decide the holder is not “suitable”. (There is court review, but it is expensive and rarely successful.)
I had a former client (who gave me permission to tell his story) who had a valid Mass license to carry. He had a revolver in a shoulder holster under his jacket while carrying a pizza to his car. Wind blew the jacket open. Cop happened to be nearby and saw it. Cop gave him a verbal warning to be more careful, and wrote up a report. His chief decided he was no longer suitable and pulled his carry permit. After much litigation and expense, he got it back.
Moral is that laws against open carry can cause all sorts of havok for law-abiding folks who have a wardrobe malfunction.
A number of cases talking about concealed non-firearms weapons — knives, blackjacks, etc., complain that concealment does not allow the public to see that the person is armed and act accordingly. That would seem to be decent logic for allowing open carry of firearms on the same permit that allows conceled carry, with the folks who abuse it by ALSO disturbing the peace or being a public nusiance being charged with those offenses.
about 6 months ago
London would seem to provide counter evidence to the ideal that a total ban on citizens having guns reduces violence.
Getting to the Dunkin Donuts scenario — what would happen if the guy walking in to rob the place found that every adult customer had a weapon?
about 6 months ago
If you promote the concept of cops harassing a legal open carry to ask about license, why do you not also demand cops stop vehicles or anyone just to be sure of their intent?
Throw Terry out the window. No reason to articulate a crime.
Would also demand the verification by the gestopo for a person with a dog on a leash too? Dogs are dangerous too.
about 6 months ago
Some thoughts by other states’ appellate courts on why open carry is preferable to concealed carry:The purpose of statutes governing offenses of carrying a concealed weapon and carrying a firearm without a license is to compel persons who carry such weapons to so wear them about their persons that others who come in contact with them might see that they are armed and dangerous persons, who are to be avoided in consequence. Watkins v. State, 304 Ga.App. 78, 695 S.E.2d 394 (2010)Purpose of concealed weapon statute is to compel persons to carry weapons in such a manner as to put those with whom they deal on notice, so that they can govern themselves accordingly. Ross v. State, 255 Ga.App. 462, 566 S.E.2d 47 (2002)Policy underlying prohibition against concealed weapons is based on protection of those persons who may come into contact with weapon bearer; if weapon is not concealed, one may take notice of weapon and its owner and govern oneself accordingly, but no such opportunity for cautious behavior or self-preservation exists for one encountering bearer of concealed weapon. State v. Newsom,, 563 N.W.2d 618 (Iowa 1997)There are more cases in the same vein, but these are relatively recent decisions.
about 6 months ago
After Heller and McDonald finding that the Keep part of the Second is a personal right, wouldn’t that also apply to the Bear part? It seems like this is more than just an issue of statutory fit, but whether or not individuals are being singled out for exercising a constitutional right.
Responding to shq and FL Cop, I live in Kentucky, so seeing people with guns is commonplace. What bothers me is shq’s shift of the burden to the individual to prove they are up to no good. This is the kind of thing we fight daily. The police don’t get to f*** with you unless there is reasonable suspicion to suspect that person is engaged in criminal conduct. The fact that guns make you nervous is insufficient to justify a stop, just like a lot of folks are made nervous by black people or Republicans (I admit my bias).
Also, people have been killing people and then writing about it since Homer. Perhaps we should outlaw literature and pretty women.
about 5 months ago
The kind of hypotheticals that shg is coming up with are hilarious from the perspective of an Arizona resident. We have LONG had full and total acceptance of open carry here, even among the police. I have repeatedly been on my way to or from the range, and stopped at a convenience store or fast food restaurant while armed with a loaded pistol on my hip when police officers entered the establishment. Just as is the case with strangers or cashiers, the only attention I will garner from them, if any at all, is the kind of conversation common among enthusiasts of any hobby, “what kind of gun is that? Oh yeah? How many rounds you got? Really? Cool! You do any competitions? Uh huh. Well, I got a so and so, and I like to shoot at such and such…” Cops really CAN be cool with and respect the 2nd Amendment. There’s a mantra for cops here in Arizona, “criminals don’t wear holsters.” And so, if they see a guy with a rig of any kind, even if it’s supposed to be concealed, but the guy’s shirt is riding up or whatever, they assume he’s a good guy. It’s the dude with a pistol hanging out of the waistband of his sweatpants or jutting out of a coat pocket they tend to worry about. But even then, it’s not an occasion for a felony stop, just a careful interaction. And you know what? This still ain’t the wild, wild west with gunfights all the time. As Robert Heinlein pointed out, “an armed society is a polite society.”
about 5 months ago
“Not to mention that open carrying indeed tends to scare people needlessly.”
No, no it doesn’t. It is VERY common here in Arizona, and not just in the sticks. Even in super-blue Pima county, people understand that it is legal. Once the culture is established and people come to accept it, the only folks who get perturbed are Californians, or other out-of-state snowbird types. And they’ll get a quick lesson in the law from the 911 operator if they try and call it in. “Ma’am, this is Arizona, it is not illegal to carry a firearm openly.” I’ve even done it on the city bus, which I have verified with the authorities is completely legal.
about 5 months ago
“A well regulated militia being necessary to the security of a free State, the right of the People to keep and bear arms shall not be infringed.”
“infringedpast participle, past tense of in·fringe (Verb)
1. Actively break the terms of (a law, agreement, etc.): “infringe a copyright”.
2. Act so as to limit or undermine (something); encroach on: “infringe on his privacy”.
What is so hard to understand folks? Even the tiniest transgression regarding the Second Amendment interferes with the my Constitutional Right to own and carry a gun.
about 5 months ago
A gun is a tool and has no function unless it has an operator. A gun does not kill just as a pencil does not misspell words nor is the spoon responsible for someone being fat. It’s the operator of these tools that are responsible. I grow sick and tired of all the gun haters who point out the bad while ignoring the protection guns provide. Americans have a 2nd Amendment right to carry firearms to protect themselves from the criminal element in society. Also, we have enough gun-control laws that criminals ignore daily. More laws only affect those who abide by the laws. Criminals tend to disobey laws. Look at the nightly news to see where I draw this conclusion.
about 5 months ago
“The simple solution, of course, is to make it illegal to openly carry a weapon in public:”
Simple, but in your country unconstitutional. The right to bear arms is guaranteed by the second amendment; the right to bear arms, not just to own them.
about 3 months ago
There are some dated Amendments to the Constitution. Maybe the 2nd is one of them…maybe not. But I am glad to see from this comment thread that the 1st is alive and well.