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2014 Disorderly conduct bill

10K views 37 replies 13 participants last post by  Utah_patriot 
#1 ·
#4 ·
Just remember that article is written very deceptively trying to maintain an anti-gun bias on a pro-gun bill. It starts out trying to sound like OC is a problem. And it does so by pointing out two incidents, one of which was no incident at all as nothing happened except the guy with the AR slung on his back was able to spend some money at JC Penny's. While the Orem incident did result in DC charges because the guy was hanging out in the parking lot with his AR in a combat sling. But the bills in question, have over the last two years been attempts to clarify that OC alone is not grounds for DC charges, that an individual must actually disturb the peace, just having a scary weapon does not meet the reasonable man definition of disturbing. The hope is to remove the OEO's favorite anti-OC bludgeon. "I don't like what you are doing so I'll throw the DC charge at you because I can." This bill has great potential, assuming it doesn't get gutted or turned around on us.

If we are proactive and politely vocal perhaps this time we can finally get it passed. Improving Utah's laws even more and sinking our Brady ranking even closer to a negative score. That said even though it's legal, perhaps it isn't the wisest time to go packing a scary black gun around in public. If you want to OC to a public meeting do so with a sidearm rather than a long gun.

If there is another frozen rally like last year at the Capitol, then and there go ahead and carry your rifle. Normally I'm one who says OC is legal, do it. But we lost a couple battles last year due to people being just obnoxious enough in their carry to cost us support. I supported the guy at JC Penny, but he might have been better waiting until after the bill was passed to make his statement.
 
#5 ·
DaKnife said:
If we are proactive and politely vocal perhaps this time we can finally get it passed. Improving Utah's laws even more and sinking our Brady ranking even closer to a negative score. That said even though it's legal, perhaps it isn't the wisest time to go packing a scary black gun around in public. If you want to OC to a public meeting do so with a sidearm rather than a long gun.

If there is another frozen rally like last year at the Capitol, then and there go ahead and carry your rifle. Normally I'm one who says OC is legal, do it. But we lost a couple battles last year due to people being just obnoxious enough in their carry to cost us support. I supported the guy at JC Penny, but he might have been better waiting until after the bill was passed to make his statement.
Agreed.

If we are willing to accept incremental progress, we can probably get make some solid headway on OCing of holstered handguns. If we insist on getting the whole pie in one shot so we can walk around with long guns in hand, we can walk away with nothing for the third or fourth year in a row.

The best way to make progress on issues like this is to convince the legislature that if they pass the bill there will be no major changes in the social order tomorrow. Showing up to legislative hearings with long guns in hand, or wandering around urban malls with black rifles slung over shoulders or chests (while generally legal) is probably not the best way to send the desired message.

Charles
 
#6 ·
Okay as coverage of this bill spreads, I'm a bit more concerned about this bill. I do not like it. As comments at KSL quickly pointed out. While it make make sense in relation to a store like JC Penny's. What about carrying your rifle into Cabela's or Gunnies or any gun store. Why should it have to be in some kind of holster? As long as it's Utah unloaded and not being waived about threateningly there should be no grounds for DC charges. This bill needs to be stopped, and replaced with a better one.

We need to eliminate the usually Bogus DC charges but I don't think this bill is the way to do it.
 
#7 ·
Why not simply amend the current laws pertaining to DC charges. Have the law amended to explicitly state that in order for DC to apply there has to be some type of "threat" similar to the way conditions are outlined in 76-10-506?
 
#8 ·
Folks, neither bill is even fully drafted yet (near as I can tell). And I certainly haven't seen any language yet. The devil will be in the details and all of that.

But let us seriously consider on a couple things.

First of all, right now, a holstered but OC'd handgun is legally no better defined relative to Disorderly Conduct that a rifle or shotgun carried in hand, or a combat sling. Now, I do not want to see the OC'd long gun expressly criminalized. That would be a step backward. But if we can get holstered handguns expressly protected, while leaving long guns in roughly the same state they are now, that would be progress.

Secondly, notice who it is that is opposing our RKBA: The League of Cities and Towns and the Police Chiefs Association. Want to know who funds those two groups? That's right. You and I do via local (city property) taxes and sales taxes. So in addition to our work with legislators on RKBA, we need to start making our mayors and city council members aware that we object to them providing funding to these organizations that turn around and use the funding to attack our interests. (And I suspect that most here would take issue with a lot of positions advocated by the League of City and Towns beyond just RKBA; they are basically an urban planning organization that believes in heavy government regulation of most every aspect of your yard, home, etc, favor high density over rural or suburban living, and so on.)

Charles
 
#9 ·
bagpiper said:
Folks, neither bill is even fully drafted yet (near as I can tell). And I certainly haven't seen any language yet. The devil will be in the details and all of that.

But let us seriously consider on a couple things.

First of all, right now, a holstered but OC'd handgun is legally no better defined relative to Disorderly Conduct that a rifle or shotgun carried in hand, or a combat sling. Now, I do not want to see the OC'd long gun expressly criminalized. That would be a step backward. But if we can get holstered handguns expressly protected, while leaving long guns in roughly the same state they are now, that would be progress.

Secondly, notice who it is that is opposing our RKBA: The League of Cities and Towns and the Police Chiefs Association. Want to know who funds those two groups? That's right. You and I do via local (city property) taxes and sales taxes. So in addition to our work with legislators on RKBA, we need to start making our mayors and city council members aware that we object to them providing funding to these organizations that turn around and use the funding to attack our interests. (And I suspect that most here would take issue with a lot of positions advocated by the League of City and Towns beyond just RKBA; they are basically an urban planning organization that believes in heavy government regulation of most every aspect of your yard, home, etc, favor high density over rural or suburban living, and so on.)

Charles
:agree:
If you haven't already, then you need to start and repeatedly contact those locally elected officials and let them know where you stand as a registered voter. A strong swell of support on the local level will have much more impact than a few frozen rallies.
 
#11 ·
Off topic to the gun portion, I just love (not) how according to the law, if I'm sitting in a park (a public place) and an officer orders me to leave (regardless of reason, good or bad) and I decline I'm guilty of DC.
Now back onto the Gun topic.

That said this proposed change flies in the face of Lund v SLC in that is sets requirements that restricts the types of firearms that can be legally carried without fear of a DC charge. We need to fight this bill for better wording that does not require long guns to be encased.

Tapatalking via my Galaxy S4
 
#12 ·
David Nelson said:
The published bill is now available online (http://le.utah.gov/~2014/bills/static/HB0276.html).
As currently written, I believe this bill is a huge improvement to the DoC law and provides significant protections to the law abiding gun owner who either chooses to OC or whose gun unintentionally becomes exposed.

With respect to DaKife, this bill does nothing to create any new crimes. It does not create any new restrictions.

What it does is carve out a specific exception to the DoC law for guns that are carried either "holstered or encased."

That it does not mention slung long guns does not create a new ban on OCing such firearms. Rather, it leaves them in the current, somewhat ambiguous state.

In other words, were this bill to pass, we'd gain ground in protecting the legal ability to OC a holstered or encased gun while losing no ground at all on slung guns. That would be a win. And after not getting the whole pie for the last 4 years, I think it is time to go after 90% of the pie that we can probably get.

Charles
 
#13 ·
bagpiper said:
As currently written, I believe this bill is a huge improvement to the DoC law and provides significant protections to the law abiding gun owner who either chooses to OC or whose gun unintentionally becomes exposed.
It sounds like a solution looking for a problem. What issues do we have with OCing handguns?
 
#14 ·
UtahJarhead said:
...What issues do we have with OCing handguns...?
During my now-infamous run-in with a senior Salt Lake City Corp. Police Department officer for my possession of an unconcealed firearm in 2007 at the Utah Pride Festival, he stated a few times that "people here might become scared or concerned for their safety" if I continued to open carry. While I talked him down logically from that threat of a disorderly-conduct violation, it was before the Lund v. Salt Lake City Corp., No. 2:07-cv-0226BSJ (D. Utah 2008) opinion (http://www.hoffmang.com/firearms/carry/ ... -12-04.pdf) which included the brilliant dicta that we all know and love. But, we also must remember that the dicta was just that: remarks made by the judge outside the confines of the merits of the case, not a governing order. Dicta is only a way for a judge to speak freely and make examples without jeopardizing the opinion's precedential logic. By itself, dicta isn't precedence. While it can be introduced as a good example of reason in future related cases, it remains just a remark and not binding, legally.

As such, we in Utah still live in a legal world where the OC of a firearm may be cited by a law-enforcement officer as disorderly conduct. This bill would change that fact.
 
#15 ·
bagpiper said:
David Nelson said:
The published bill is now available online (http://le.utah.gov/~2014/bills/static/HB0276.html).
As currently written, I believe this bill is a huge improvement to the DoC law and provides significant protections to the law abiding gun owner who either chooses to OC or whose gun unintentionally becomes exposed.

With respect to DaKife, this bill does nothing to create any new crimes. It does not create any new restrictions.

What it does is carve out a specific exception to the DoC law for guns that are carried either "holstered or encased."

That it does not mention slung long guns does not create a new ban on OCing such firearms. Rather, it leaves them in the current, somewhat ambiguous state.

In other words, were this bill to pass, we'd gain ground in protecting the legal ability to OC a holstered or encased gun while losing no ground at all on slung guns. That would be a win. And after not getting the whole pie for the last 4 years, I think it is time to go after 90% of the pie that we can probably get.

Charles
No, once this gets passed the next time a 2A rally is held at the Capitol the police will be ready to haul away anyone with a rife that is not encased as it could be interpreted to be disorderly conduct. By not mentioning long guns and putting specific requirements to the how of carrying a gun in order to not be subject to DC charges it does in fact effectively outlaw the carry of long guns. Right now the criteria while vague is clear, it's the reasonable man argument. So any judge familiar with safe handling of firearms will recognize a slung weapon as safely carried and not threatening. By removing the vaguenous we actually hurt the current situation. Specificity is not always a good thing.

We know from past experience that the police will try to twist this law however they can in order to arrest those who's actions they disagree with. This does not help and actually hurts based on current case law and understanding that most Utah LEO's seem to have these days.
Eliminate the holster/cased requirement and the language is good, or add language to include slung long guns.
Until such changes are made this is not a step forward, it's a subtle step backwards.
 
#16 ·
I am concerned as well about the apparent implications and inferences of the undefined phrase "holstered or encased[.]"

However, some ideas present themselves quickly (to me, at least) to take advantage of the absence of any definition which, if we stand ready to answer the likely questions before others define "encased" as meaning "in a locked case," could solve the problem for everyone concerned (happy, happy; everybody's happy?). How could an individual "holster" a rifle and still render it as accessible and as secure as any old handgun holster which would presumably meet or exceed the expectation of this bill? Why couldn't a rifle holster be equally "skeltonized" with its old-school leather or more "space-age" materials covering just the action and trigger, leaving the other 90 percent of the rifle exposed if that is what the owner chooses to do? And, for those who prefer to possess their unconcealed rifles pursuant to the First Amendment right of free speech, I believe that the message that a slim-and-trim holster provides would be received loud and clear.

This...


...appears to do the trick and is simply a variation of this...

 
#17 · (Edited by Moderator)
I agree with bagpiper that the text of the current version of this bill would not add new criminal restrictions; it will only add exemptions to being charged with Disorderly Conduct.

However, I have the same concerns as DaKnife. I feel the same LEOs and Officials that threaten a DoC charge for open carrying now(especially a long gun) would twist this bill and see the term "holstered or encased" as a requirement and charge anyone open carrying a gun not holstered or encased with DoC. I wish this bill would pass with the term " a holstered or encased" removed, but I'm sure the Police Chiefs Association would fight it as they probably aren't happy with the current version either.

I've attached some pics of ways to carry a long gun and be exempt from DoC under this bill. I'm afraid that if it became the norm for people carrying a long gun to carry it holstered or encased, then someone carrying a slung long gun would face a DoC charge.

Here's a creative way to encase an AR-15 using Kydex.
ar15r.jpg


Holstered AR-15
dp052m43xx.jpg


Holstered Shotgun
opplanet-eagle-holsters-blss-a-r-3.jpg


Shotgun in a scabbard
Shotgun-Scabbard.gif


AR-15 in a scabbard
CVRSCB2919D_NEW.1.jpg
 

Attachments

#18 ·
AKM said:
...I've attached some pics of ways to carry a long gun and be exempt from DoC under this bill....
Those are some great images of available rifle holsters. I especially like the AR-15 scabbard. So, it is possible to OC rifles while still complying with the expectations of the bill.
 
#19 ·
Thanks to UtahJarhead for pointing me to this discussion. On our reading, UT 276 is clearly a step in the wrong direction (a big one). I just put a blog post up regarding our opinion and we're encouraging people to contact reps in opposition. I know a lot of people have supported this bill and that's fine, I can't. Our thoughts are here: http://mylegalheat.wordpress.com/2014/01/24/ut-hb-0276-and-the-overton-window/
 
#20 ·
#22 ·
In addition, the removal of a firearm from a holster or the transferring of a firearm from one vehicle to another during a private sale would be grounds for disorderly conduct. Basically, any firearm not holstered or encased puts the possessor in legal jeopardy.
 
#23 ·
DaKnife said:
No, once this gets passed the next time a 2A rally is held at the Capitol the police will be ready to haul away anyone with a rife that is not encased as it could be interpreted to be disorderly conduct. By not mentioning long guns and putting specific requirements to the how of carrying a gun in order to not be subject to DC charges it does in fact effectively outlaw the carry of long guns. Right now the criteria while vague is clear, it's the reasonable man argument. So any judge familiar with safe handling of firearms will recognize a slung weapon as safely carried and not threatening. By removing the vaguenous we actually hurt the current situation. Specificity is not always a good thing.

We know from past experience that the police will try to twist this law however they can in order to arrest those who's actions they disagree with. This does not help and actually hurts based on current case law and understanding that most Utah LEO's seem to have these days.
Eliminate the holster/cased requirement and the language is good, or add language to include slung long guns.
Until such changes are made this is not a step forward, it's a subtle step backwards.
I respectfully and strongly disagree. You and "legalheat" are engaging in flawed legal analysis.

By the logic you are applying, we should repeal Utah's defense of habitation law because since explicit and similar protections are not provided to other locations, any use of a gun in self defense at those locations is automatically going to be illegal.

By not mentioning uncased, unholstered guns, this bill has no effect on such conduct. The DoC statute remains as murky on that subject as it is today and exactly the same standard would be required to convict of DoC for carrying a slung long gun or non-holstered handgun as is present today.

What this bill would do, is provide a pretty solid protection for carrying a gun holstered or cased. It applies the well established "reasonable man" test to any claims of concern about the gun, and then goes further by explicitly disallowing concerns based on a misunderstanding of the law. So the old, "I thought OC was illegal" has ZERO weight in contributing to a "reasonable man" fear of the seeing the gun.

This bill is a significant step forward for holstered and encased guns. It has zero effect on guns not carried in that manner, leaving them up to individual, totality of circumstances just as we have had to date.

Bottom line, we've tried for 4 years to get all OC explicitly protected. And in large measure thanks to a few jack hats who think OCing a slung rifle is the best way to advance RKBA, we've come up short every year. We can spend the next four years making zero progress, allowing the perfect to be the enemy of the pretty darn good. Or we can get a huge piece of the pie this year, lay groundwork, and four years from now have a good chance of having worked out some proper protection for OCing of long guns.

Remember, our entire permit process is offensive to the RKBA. But for some 20 years it has allowed us to legally carry without fear of legal penalties. It has worked as the groundwork to get permit free car carry, parking lot preemption, repealing the State version of the 1000' "gun free" zone around schools, in most cases, and passing the "Made in Utah guns are not subject to federal law" law. It has worked to shift the social and legal middle ground (or norm) to a place far more friendly to RKBA than where we were 20 years ago.

Please review our very successful history of incrementalism and rethink your views on this bill. And consider that while legalheat and his ilk have opposed virtually every bill ever proposed, they've done nothing to actually protect, much less advance RKBA the last several years.

Charles
 
#24 ·
UtahJarhead said:
In addition, the removal of a firearm from a holster or the transferring of a firearm from one vehicle to another during a private sale would be grounds for disorderly conduct. Basically, any firearm not holstered or encased puts the possessor in legal jeopardy.
No more so than it is today.

Notice that the proposed language doesn't provide protections for adding sugar to your coffee. Are we going to suggest that because of that anyone drinking anything other than black coffee is at some increased risk of a DoC arrest/charge/conviction?

Bottom line is the legislature is NOT going to pass protections for carrying a slung long gun into JC Penny, or while loitering about in a parking lot. And since nobody can come up with a "knucklehead clause" that will explicitly protect the carrying of a slung rifle during the hunt, or walking out of Cabellas, while still giving the public some recourse against the jack hat morons who think parading around with exposed triggers as if this were a combat zone, we can grab protections for holstered and cased guns, or we can come up with nothing just like the last four years.

I will fight against any bill I think actually threatens our RKBA. I will work to pass a bill that protects the OC of holstered firearms.

I won't waste one moment of my life trying to get explicit protections for combat slings in urban mall parking lots or slung black rifles in JC Penny. I will do my best to avoid publicly attacking those who decide to do such things. But I won't waste my effort or credibility trying to pass law to protect such conduct explicitly. Certainly not this year and not until after we've got a few years of protecting holstered guns under our belt.

Incrementalism, gentlemen.

Charles
 
#25 ·
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.
 
#26 ·
bagpiper said:
I respectfully and strongly disagree. You and "legalheat" are engaging in flawed legal analysis.

Please review our very successful history of incrementalism and rethink your views on this bill. And consider that while legalheat and his ilk have opposed virtually every bill ever proposed, they've done nothing to actually protect, much less advance RKBA the last several years.

Charles
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. Why try to take it to a personal level because someone disagrees with you? I'm trying to remember if I've ever vocally opposed another legislative issue here in Utah (honestly don't recall if I have). However, I'd imagine alleging I've opposed "virtually every bill ever proposed" is a bit of an overstatement, but who am I to judge.

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? Did you read Rep. Ray's statements about the intent of the bill? (http://www.ksl.com/?sid=28230755).
"So if someone is carrying a gun around in their hand they can be cited," he said. "This bill really clarifies things and gives them an outline to go by of in this situation you can write a ticket and in this situation you can't."

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.

"If they strap a rifle onto their back and walk into JC Penney, you can be cited for disorderly, which you ought to be," Ray said. "But if you have your handgun holstered then you are ok."
Don't get me wrong, I'm VERY glad Rep. Ray is "ok" with me carrying a holstered gun (by "ok" I'm assuming he means not arrested and criminally prosecuted). 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.
 
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