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2014 Disorderly conduct bill

10K views 37 replies 13 participants last post by  Utah_patriot 
#1 ·
#27 ·
legalheat said:
Charles, was this an attempt to get personal? I don't know you and you may very well be a 2A rockstar (Alan Gura using a UCC pseudonym?) but I'd be glad to publicly disclose financial contributions to 2A groups and discuss how many 2A issues I've litigated if you'd like to do the same.
If you don't know me, you haven't been actively involved in RKBA in Utah or on this list for very long. I don't use a pseudonym on this list, every post is signed with my name, many with my full name.

And my apologies for my tone. I mistook your webpage for another done by some folks who are overtly offensive in nearly every communication and who have never seen any bill they liked. I apologize for my mistake and jumping the gun on that one.

legalheat said:
Now to the substance of your comment. Are you familiar with how courts will look to the legislative intent of a bill when the law's face does not clearly address an issue?
That is a red herring because the bill quite clearly addresses the issue. The issue being addressed is holstered and encased guns. Period.

It isn't sugar in coffee, it isn't barking dogs. And it isn't non-holstered or non-encased guns. It isn't holsters without guns in them. In fact, there are infinite number of things not addressed by this bill. It affects all of them exactly the same: NADA.

Current law doesn't address OC'd guns at all. Current law doesn't address unholstered guns at all. How are those addressed now? That is exactly how unholstered have to be addressed if this bill passes as currently worded. Any other claim is to act as if what legislatures don't pass have binding bearing on what they do pass. That is just asinine.

And while I agree with your "Overton Window" (It can also be expressed as "the extremes define the middle"), there is a difference between criminalizing conduct and simply not granting that conduct explicit protections. There are clearly times when OCing a long gun is and should be a violation of DoC. There are clearly times when it isn't and shouldn't be, but like porn, trying to define those times in law is very difficult. So for the time being, we leave it to cops, prosecutors, judges, and juries to decide. There simply isn't a better solution available right now. We can retain the status quo where all OC is subject to DoC allegations, or we can provide explicit protections for the 99%+ of all OC that actually takes place while NOT changing the status of long guns at all.

legalheat said:
The same goes for people who openly display guns on their body. The man in JC Penney last year could have been charged with disorderly conduct, he said.
Yes, he could have under current statute and that won't change if this bill is passed. He wasn't. He might be next time as was the idiot who loitered around the Orem mall parking lot with his combat sling. But neither will be because of this bill passing.

OTOH, if the bill passes as written, those who OC, but who have the good sense to OC primarily for legitimate self defense and thus carry a properly holstered handgun will gain very strong protections against a DoC charge. And let me be clear, while an OC'd long gun might be a form of political speech, in an urban environment, it is not an appropriate or even safe weapon for self-defense in most cases. Over-penetration and excessive range make it overly dangerous in far too many cases.

legalheat said:
However, his intent is CLEARLY and undeniably to criminalize the act of openly carrying an uncased/unholstered firearm. He seeks to criminalize an act that is currently legal, and this is the bill's sponsor. Now, it may make you uncomfortable to face the reality that you are supporting something that runs contrary to your beliefs, but I can't help you there.
Are you a mind reader? If not, please avoid the claims of what his intents are or what makes me uncomfortable. I believe (notice the difference between stating a belief and claiming to know a fact) his intent is to pass a bill protecting 99% of all OC in Utah by convincing his colleagues that the bill won't prevent police from handling the rare case of a "knucklehead" deciding to loiter around with a long gun strapped to his back or chest for no other reason than to prove he can.

We've tried to get the whole pie for 4 years running. We've failed precisely because of jack hats going way too far for the current social norms. Either we limit explicit protections to holstered guns (not even handguns in the current language, mind you though most will see that as they read and consider the bill) while not changing the status of long guns at all (and that situation works for 99.9999% of gun owners who don't feel a burning need to engage in shock tactics and even for a few of them who do), or we keep the status quo that leaves all OC at risk.

Now, if the democrats, and the UoU, and the league of cities and towns, and various police chief associations jump on this bill as the greatest thing since sliced bread, I will certainly have to rethink my analysis and maybe concede that you are right. But so long as the usual gun grabbers are opposing it, I have one more evidence that the bill is not some clandestine gun grabber dream come true.

Charles Hardy
 
#28 ·
A follow up to my above comment:
If doubt or uncertainty exists as to the meaning or application of a statute's provisions, court analyzes statute in its entirety, and harmonizes its provisions in accordance with the legislative intent and purpose.
Craftsman Builder's Supply, Inc. v. Butler Mfg. Co., 1999 UT 18, 974 P.2d 1194
As the court cites above, it is a general rule of statutory construction that when the plain language of the statute does not cover a particular issue (i.e. open carrying unholstered firearms) the court will then look at the legislative intent. As mentioned in my previous comment, the bill's sponsor has been fairly clear his intent was to criminalize the open carry of unholstered firearms.

Finally, another well established rule of statutory construction:
When the legislature enumerates an exception to a rule, one can infer that there are no other exceptions. http://www.law.cornell.edu/wex/statutory_construction
The bill (as currently written) gives exceptions (holstered or encased) but no others. Thus, following the rules of statutory construction we would look at the legislative intent (criminalize the carry of uncased/unholstered firearms) then look at the enumerated exceptions (holstered or encased) and see that the carry of unholstered firearms is now a criminal offense under Utah Code Ann. § 76-9-102. This wouldn't be the case if the law simply read "The mere carrying or possession of a firearm, whether visible or concealed…".

I realize my opinion may offend those that have worked on this law (I haven't), but that is no reason to not voice a legitimate concern. I think the Utah Shooting Sports Council is a fantastic group and I hope to be able to help/get involved with them more in the future. On this issue, however, I cannot agree with them.
 
#29 ·
UtahJarhead said:
I know what you're saying and I WANT to agree with you, but I can't. People look at what the law says, not what it doesn't say (shush! It makes sense in my head!). They will see that CASED or HOLSTERED guns are protected. No others are.
Fortunately, we have judges who are trained lawyers. We did get a nice win out of our State Supreme Court on the UoU thing you will recall. Prosecutors are trained lawyers. Is it possible that someone will try to twist this? Sure. That is true of any law. But I don't see it happening in this case and if it does, it becomes the excuse to go add some explicit protections for long guns.

What is more likely is that the guy so far over the top as to get cited for DoC for carrying a long gun in Utah will not be able to appeal to this explicit protection for carrying a cased gun and will have to fall back on totality of circumstance. I'm unaware of anyone every being cited for DoC for walking into or out of a gun store. Or while on the hunt.

Remember, like you realized on the forced entry bill, baby steps. Except this isn't even baby steps. It protects well over 99% of all cases of OC in Utah. That is huge.

Charles
 
#30 ·
But, they were already protected. This bill looks to me exactly like it wants to limit that protection to the senator's approved choices of firearms.

The JC Penney guy did something people found offensive. There was no additional threatening behavior as required by the statute. People just plain didn't like it.

The first is there to protect speech we disagree with. So is the second. It's not the carrying that we agree with that needs protection. It's that which we do NOT agree with that needs the protections the second provides.
 
#31 ·
Not being a lawyer, I usually avoid discussions like this. But, if lawyers (Legalheat) are opposing it at least as written, I would think that the bill is suspect.

I generally trust Charles opinion on these things, and I also remember the past two legislative sessions when long gun toting jerks made headlines in time to affect bills. So I'm of mixed emotions. I will say though, that if the bill passes as written, I WILL get holsters made for my AR and my 12 ga. tactical shotgun. And I just might start carrying one or the other, well holstered, to make a point. I'm sure my wife won't like it, and I imagine I would probably limit those carries to legitimate situations i.e. a trip to the range, or meeting someone to discuss a trade, etc. But if they tell me it's legal, as long as it's holstered, that can be dealt with. And then you have a group of people, as I'm sure I won't be alone, flaunting the intent of the law, but absolutely living up to the language as passed.

I would like to see Mitch weigh in on this one, there seems to be enough difference of opinion that I would love to see one coming from someone that I absolutely trust when it comes to Utah gun law.

Mel
 
#32 ·
quychang said:
I would like to see Mitch weigh in on this one, there seems to be enough difference of opinion that I would love to see one coming from someone that I absolutely trust when it comes to Utah gun law.
Mel
Mitch has been a role model of mine for a long time as well. I was just discussing it with him on Facebook and he said he supports the law as a good step in the right direction (generally agreeing with Charles) and I can certainly respect that. Again, I may be in the minority on this one but I've read an awful lot of gun laws (for every state) and I don't like the way this one is written at all. Hope to see an amendment.
 
#33 ·
legalheat said:
quychang said:
I would like to see Mitch weigh in on this one, there seems to be enough difference of opinion that I would love to see one coming from someone that I absolutely trust when it comes to Utah gun law.
Mel
Mitch has been a role model of mine for a long time as well. I was just discussing it with him on Facebook and he said he supports the law as a good step in the right direction (generally agreeing with Charles) and I can certainly respect that. Again, I may be in the minority on this one but I've read an awful lot of gun laws (for every state) and I don't like the way this one is written at all. Hope to see an amendment.
Well, that goes a long way towards making me less reserved. Still doesn't mean I'm not getting holsters made.

Mel
 
#34 ·
quychang said:
legalheat said:
quychang said:
I would like to see Mitch weigh in on this one, there seems to be enough difference of opinion that I would love to see one coming from someone that I absolutely trust when it comes to Utah gun law.
Mel
Mitch has been a role model of mine for a long time as well. I was just discussing it with him on Facebook and he said he supports the law as a good step in the right direction (generally agreeing with Charles) and I can certainly respect that. Again, I may be in the minority on this one but I've read an awful lot of gun laws (for every state) and I don't like the way this one is written at all. Hope to see an amendment.
Well, that goes a long way towards making me less reserved. Still doesn't mean I'm not getting holsters made.
I am getting less and less enthusiastic about this bill. It appears to me that its undefined phrase "holstered or encased" is a problem which no one wants to improve by defining it (thereby leaving it to those who support tentatively or just don't care about a more restrictive definition to fulfill their ambivalence with just such a definition). I must wonder why there is resistance to the idea of including a simple definition, unless the definition would belie some true intentions.

Utah Rep. Paul Ray has a history of some great ideas which then get twisted and watered down, and end up ultimately abandoned or, in the case of the state Dating Violence Protection Act, repaired and improved by other legislators for adoption. This might be one of those bills that would be better served with a new sponsor.
 
#35 ·
David Nelson said:
I am getting less and less enthusiastic about this bill. It appears to me that its undefined phrase "holstered or encased" is a problem which no one wants to improve by defining it (thereby leaving it to those who support tentatively or just don't care about a more restrictive definition to fulfill their ambivalence with just such a definition). I must wonder why there is resistance to the idea of including a simple definition, unless the definition would belie some true intentions.
Lacking a formal definition in law, the courts are required to look to common use definitions. From Dictionary.com:

hol·ster [hohl-ster]
noun
1. a sheathlike carrying case for a firearm, attached to a belt, shoulder sling, or saddle.
Lacking a formal legal definition, that (or something substantially similar) is the definition the courts will have to apply. Do we really want to start trying to define what a holster is beyond that? Or what is "encased" (notice this language doesn't even go so far as to be "securely encased" as is used elsewhere in Utah law).

Start down that road and you end up with legislators wanting to require retention holsters (After all, if they are proper for cops...).

Charles
 
#36 ·
legalheat said:
Mitch has been a role model of mine for a long time as well. I was just discussing it with him on Facebook and he said he supports the law as a good step in the right direction (generally agreeing with Charles) and I can certainly respect that. Again, I may be in the minority on this one but I've read an awful lot of gun laws (for every state) and I don't like the way this one is written at all. Hope to see an amendment.
Mitch almost always takes a very conservative approach to gun laws. His books provide interpretions of law such that following his advice it would be all but impossible to find oneself charged with, much less convicted of a crime. Many on this list take a far more liberal approach to existing gun laws. So if Mitch is saying this bill is a good step in the right direction, receive that remembering how he generally interprets gun laws.

In like fashion, I and the others at GOUtah! who have spent the last 10 to 15 years analyzing every gun related bill (and many that don't at first glance appear to be gun related) introduced into Utah have made it a habit to apply the standard attributed to Lyndon Johnson (of all people) that (to paraphrase a bit) "Legislation should be analyzed not in light of the good it will do do if properly applied, but rather in light of harms imposed if improperly applied."

I, and they, have made it a habit to oppose virtually every expansion of felonies (and DV misdemeanors) on the principle that a felony (or DV) conviction is a lifetime loss of RKBA and there needs to be a very high bar set for that. We opposed (unsuccessfully, unfortunately) laws that were otherwise very popular including with some on this list including the expansion of the domestic protective orders to mere dating relationships. We opposed (unsuccessfully, unfortunately) the elevation of animal torture to a felony. We opposed (with some success) efforts to make any simple "assault" of a first responder a felony.

We are the ones frequently called "paranoid" for asserting that some law is likely to have negative effects on RKBA.

In 15 years, I've yet to support a law that ended up being bad for RKBA.

I have one notable mistake in opposing a law that turned out to be really good for RKBA. When Utah first recognized all out-of-State permits, a last minute amendment limited the recognition period to 90 days (I think it was, maybe it was 60). The sponsor assured us that was necessary for passage, that it was a step in the right direction, and that in a few years we could extend or eliminate the 90 day limit. I disagreed and GOUtah! opposed the bill. Fortunately, it passed despite our objections. I don't think a single arrest nor conviction was ever made under that law. And within a couple of years, the AG's office and police agencies were actually in favor of (or at least neutral) on removing the 90 day limit as unnecessary, unenforceable, and (surprise, surprise) there simply hadn't been any problems with recognizing permits from other States.

That is the direction I err. I'm not perfect and I will make mistakes. But I'm deliberately biased toward being very cautious, and I'm not a one man show. There are at least two of us, and often three or more who study a bill and we come to common consensus before offering our official opinions. There are some bills where we just can't decide and so we don't offer an official opinion.

At the same time, I also recognize that "politics is the art of the possible" and if we let "the perfect be the enemy of the good enough" we will get nothing. Many times, imperfect, but workable solutions are way better than nothing, and far preferable to bad solutions when "something must be done." I will not sell out one segment of gun owners to protect another. But if I can get some good, without getting everything I want, that is a win and I can come back later for the rest. Incrementalism works really well.

I was the primary architect of the deal that allowed churches to ban guns without posting signs on their buildings, while also preserving the default position of guns allowed unless some affirmative action is taken to ban them. That deal not only got us the lowest possible penalty for a violation (infraction without even loss of a permit for first offense), but also put a stake through the heart of the "Safe to Learn; Safe to Worship" citizen petition drive and gave us time to cement into public culture the practice that allowing teachers and parents to be armed was not a problem. I don't like the law very much. But it works. And I don't think we've had a single conviction under it. I know it rubs some the wrong way on pure principle---others because they just hate churches getting any special recognition in law at all. But in real world practice, it has done exactly what it needed to do--which was placate a very powerful political force in Utah who otherwise could have really harmed our RKBA--without materially harming RKBA nor even really affecting any gun owners who have an ounce of respect for others' property.

I was the primary supporter and pusher of Utah's car carry legislation that eliminated the need for a permit to carry a concealed gun and/or loaded handgun in your car. That was a two or three year effort and was an almost perfect win. At the last minute the sponsor retained the existing restriction on carrying loaded long guns in cars without a permit over some legislators' concerns about whether long guns had the same drop safe type features of modern handguns. But we lost nothing and gained huge with that bill.

I worked closely with the sponsor and supported Utah's parking lot preemption that protects the vast majority of Utah's private employees from negative employment action simply for having a firearm legally in their car that happens to be parked in the company parking lot. A few high security employers, and religious employers are exempt; and nothing we can do right now about federal employees. But when coupled with State preemption applied to State and local government employees, the vast majority of us are protected. Again, we lost nothing from where we were before the bill and gained a huge protection for the vast majority of gun owners in the State.

We've worked closely with legislators to make sure that fees for permits match actual cost and to keep those fees set in statute rather than allowing them to be set by unelected bureaucrats so as to prevent any ulterior motives in setting fees. Part of that has been a modest price increase for non-resident permits which has not slowed the non-res applications, but has certainly taken all wind out of the sails of local gun grabbers that Utah residents are somehow "subsidizing" permits for non-residents. Issuance of permits to non-residents has been largely unassailed in the legislature since this bill passed. And Utah's non-res permit remains one of the most affordable in the nation on a "how many States recognize it" basis.

I was the primary architect in finding the least restrictive solution for the then growing problem of other States dropping recognition of Utah's permit. For all the excuses given, I believed and still do believe that the real motivation was loss of revenue to other States and their instructors when some instructors undercut them by encouraging their own residents to get a Utah permit instead of their home State permit. Since adopting my idea of requiring those who live in States that recognize a Utah permit to get their home permit before we issue a non-resident permit, we've not had a single State drop recognition of our permit. Our own residents were affected zero and gained the benefits of not losing additional States in which their permits were valid. Again, non-res applications for our permits don't seem to have slowed, and maybe, just maybe, a few folks have been given a motivation to be involved in improving their own States permits rather than just getting a Utah permit and calling it good.

I helped craft the solution to the supposed problem of non-resident instructors rubber stamping permit applications. Rather than banning non-resident instructors, or requiring all classes to be taught in Utah, the legislature instead took a middle road of requiring instructors to come to Utah to get their instructor training and certification, and to return periodically for refresher training. No loss of rights for Utah residents, minimal impact to non-residents, and we've not heard much from anyone about rubber stamping since then; though I strongly suspect the requirement for non-res applicants to get a home State permit played larger role in this than instructor training.

At the same time, we have and will continue to vigorously oppose any attempt to impose a live fire requirement or otherwise materially increase the cost or hassle of getting a Utah permit. We will not chase the lowest common denominator in an effort to get Nevada back.

I don't just read bills and offer opinions. I have a very credible history of helping craft bills. Some are near perfect bills. Many are imperfect, but practical solutions to problems (real and/or political) and in every case that my ideas have been adopted by the State, we've seen an end to the problem and no slippery slope further loss of rights, no continued battles in that area.

GOUtah! will be supporting this bill as written. USSC supports it. Mitch Vilos, THE recognized expert on Utah gun laws supports it.

If passed, it is possible that some cop, prosecutor, judge, and jury somewhere will really twist this bill to arrest, prosecute, and convict someone for DoC for OCIng a long gun easier than it might have been without this bill. But all three entities/persons listed above clearly believe that is so unlikely that the obvious and clear benefits of removing DoC as a threat to those who OC (or inadvertently expose a CC'd) a holstered firearm that the bill is a huge step in the right direction.

The bill does not change existing statute regarding OCing an unholstered gun (eg a long gun) in the least. It does not criminalize it. To convict someone of disorderly conduct for OCing an "unholstered" long gun would still require proving that the person's conduct violated 76-9-102:

76-9-102. Disorderly conduct.
(1) A person is guilty of disorderly conduct if:
(a) he refuses to comply with the lawful order of the police to move from a public place, or knowingly creates a hazardous or physically offensive condition, by any act which serves no legitimate purpose; or
(b) intending to cause public inconvenience, annoyance, or alarm, or recklessly creating a risk thereof, he:
(i) engages in fighting or in violent, tumultuous, or threatening behavior;
(ii) makes unreasonable noises in a public place;
(iii) makes unreasonable noises in a private place which can be heard in a public place; or
(iv) obstructs vehicular or pedestrian traffic.
(2) "Public place," for the purpose of this section, means any place to which the public or a substantial group of the public has access and includes but is not limited to streets, highways, and the common areas of schools, hospitals, apartment houses, office buildings, transport facilities, and shops.
(3) Disorderly conduct is a class C misdemeanor if the offense continues after a request by a person to desist. Otherwise it is an infraction.
All this bill does is say that the visible possession of a holstered handgun is NOT a violation of 76-9-102. And as currently worded, it offers the same protection to a "holstered" long gun.

That all said, the best thing we could do is have a few folks who oppose the bill because they think it doesn't go far enough--or because they think the bill criminalizes something that is currently legal. That would minimize opposition to the bill from gun grabbing and fence sitting legislators. :D

So I'm not opposed to your opposition to the bill. It could serve a very useful purpose if worded correctly. :crown:

Charles
 
#38 ·
This bill would be a welcome change to Open carriers

I am conflicted but even now if I decided to open carry a Rifle in West valley the outcome would be disorderly even without this bill going into affect.

I have read and can support this bill as entered by Paul Ray
 
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