[Cinhil]

It was a wonderful night this last Friday night as my wife and I went to the E Center and I carried. The Australian Pink Floyd concert was wonderful. Knowing I was carrying was reassuring. I was very pleased to be able to exercise my Rights that night.
That said I was contemplating the ease with which E Center Security were able to get women, and a few men, to open their purses or bags for "inspection." What concerned me was that this search, like many we see today is not legal. The fact that so many are willing to subject themselves to search and/or possible seizure of personal items was disconcerting to say the least.
My wife's biggest concern is that I carry to an event and we get harassed because I am exercising my Right to carry. She doesn't want to be embarrassed by being singled out, or being forced to take "it (my gun)" back to the car. Or if I had used Trax, where would I put it?
Too many people are so willing to allow themselves to be abused as concerns their inherent Rights. We definitely need to keep working to educate the public as to what those Rights are so that these illegal behaviors at public facilities and venues cease.

 

[Sup3D]

So, did you refuse to be searched? I go to a lot of concerts at different clubs around SLC and one location that is used a LOT for bands I like actually makes you empty your pockets and get frisked (In the Venue). Because of this, when my permit comes, I just won't carry when I go to those places. Can I refuse to be frisked and be let in? I have tickets to a show at the E Center in December. Will I be able to carry there? How does this work?

I am surprised you got into the E Center while carrying. I went to a show there 2 or 3 years ago and they had metal detectors up.

EDIT: Glad you liked the show!

 

[bane]

Cinhill, you are right... and I applaude you for exercising your rights in exchange for possibly being embarrassed. exactly the same issue exists between my wife and I.

In a philosophy class that I took last summer this very issue came up. We've all heard the same concept discussed in slightly different ways but one of the common ways we talk about it is to point out how most people prefer to be "sheeple", followers, rather than "people", individuals.

Several great (meaning intelligent, not necessarily morally correct) philosophers used this concept in their philosophies and the general consensus among all the ones we studied was that it is this very concept of most people preferring to be "sheeple" that eventually leads to a culture of "big-box-itis" (Walmarts instead of mom & pops) and a culture of "personality" (where we prefer to allow the crowd to define us and who we are rather than ourselves) and that this eventually leads to our inability to think rationally for ourselves.

When I look around today I see a whole lot of people that don't know who to think rationally for themselves... in fact, most people, it seems, are busy looking at what "the group"/"the herd" is thinking and saying with their collective voice in order to gauge what their own response should be. Some common and large examples of this "collectivist" type of thinking eroding away at our society are: gun control issues, the dot-com scandal of the late 90's and the current housing-boom/flip-mortgage scandals. Seeing this types of collectivist thinking occurring really scares the heck out of me!

So, the real issue isn't merely one not choosing to exercise their 2nd Amendment Rights but one choosing to not exercise their own free mind and opting to allow someone else to do their thinking for them!

But, as you have done, exercising our 2nd Amendment Right is, currently, one of the best ways the put our own free thinking into a tangible real-world action. (it's the main reason I have chosen to get my permit, after all!)

So, I say... CARRY ON... and keep teaching freedom wherever you have a chance!

 

[Car Knocker]

What concerned me was that this search, like many we see today is not legal.

Were government employees conductiing the searches?

 

[Cinhil]

About a year or so ago, if memory serves me right, one of our members either took the E center to court, or showed them the pertinent law concerning concealed carry in the State of Utah, showing them they had no weight of law and would lose any suit brought against them for denying lawful cfp holders the right to enter. This changed the way they do things. Since then their security staff (no state people, or police) just look into bags for "prohibited items like cameras (they ignore cell phones which can take pictures--and people did). Fortunately they use no wands, and my wife & I were both without bags or purses so we escaped that indignity and constitutional violation.
The last few times I have attended there it has been the same, no wands & individual harassment & illegal search by staff only.

 

[Car Knocker]

Who owns the E-Center?

 

[Paul]

So I got this info off of www.theecenter.com the official E Center website.

"The "E" Center is managed by Centennial Management Group, Inc., and is committed to providing high quality management services to arenas, amphitheaters, stadiums and convention centers nationwide."

From reading other articles it appears that West Valley City owns the E Center but has contracted with this Centennial Management Group to manage the venue.

From www.theecenter.com again:

"Prohibited Items inside the Facility:
Weapons of any kind
Long chains, studded spikes, (some jewelry subject to these guidelines as well)
Fireworks
Illegal drugs "

This list is longer, but you get the point.

So I want to know why these searches are illegal. Private property owners have the right to put whatever restrictions they want on their property. If there is a law that applies here that makes this activity "illegal" I would love to see it. I was also under the impression that an incorporated city was also considered a private property owner and could control their private property in any way they wanted. Lets remember nobody is forcing anyone to go to the E Center. If you don't like their policy tell them about it and simply don't spend your money there. If you don't like the laws of the city you live in, get involved in your local city politics, or move.

So can someone come up with the law that makes this E Center activity "illegal"? I would also like to know exactly how these searches are considered "unconstitutional?" (Remember I am on your side, just wanting to get the facts straight....I am not trying to argue or be a pain.)

-PW

 

[bane]

PW,

Admittedly I have no citations or links to argue these points with... I personally have not researched these issues, so I really don't know.

But the statements/questions you bring up ring "funny" to me (meaning, they just don't sound quite right)... but, again, I could be wrong...

I was also under the impression that an incorporated city was also considered a private property owner and could control their private property in any way they wanted.

But, this doesn't seem right b/c:
(a) Wouldn't this mean that ALL incorporated cities could control put whatever restrictions in-place they chose to regarding anything they want anywhere within the limits of "their" city??? To my knowledge, most of the cities in SL county are incorporated... so, can they limit my right to free speech on "their" streets, or in "their" ballpark, or in the "city's" parking lot??? Putting aside arguments they could make about maintaining the peace or keeping the public safe, no they cannot make those types of limitations b/c that's a 1st Amendment Right that cannot be abrogated by ANY gov't entity. Again, they could make the "safety/peace" arguments, but they would have to argue their point... they couldn't just make those restrictions nilly-willy and not have to answer for them.

(b) Even private property owners don't have *TOTAL ABSOLUTE* freedom to restrict their property however they see fit... if that were so, restaraunts and merchants could refuse to serve "colored folk", and employers could strictly forbid you from bringing religious material to work (as well as, once again, refuse to hire "colored folk"). Obviously, the race question was settled about 50 years ago and people of any color have the right to come and go anywhere just as easily as anyone else of any other color. The religion question is still a recent one but it has largely been decided that an employee has a right to take religious material to work with them b/c it is their 1st Amendment right. So, it would seem, private property owners do in fact have some limits.

If the e-Center is owned by WVC, the searches seem pretty illegal to me. If it is owned by a private company, it may or may not be illegal but it is my observation that that question has not been sufficiently challenged in either the courts or the legislative branches to get an official determination.

 

[Paul]

Bane,

I agree with what you said. I really don't know all the issues and answers either. But typically courts side with private property owners and their rights. Cities can put any restrictions they want on their property. You certainly see plenty of "No Trespassing" signs on certain city property! Thats why cities have city councils is to make their cities ordinances (laws). Most cities also have legal counsel to help them with laws, ordinances, restrictions, etc. that they put in place. However if a city wanted to they could probably create and implement any city law they wanted to until it was legally challenged and they lost. In other words, they could try to limit free speech on public grounds until someone sued them and they lost. (Most cities wouldn't do this because they know where it will end up....They will loose!) So I agree with you that they will have to answer for their decisions. There is lots of case law and legal precedent for many of the issues you brought up such as freedom of speech, religion, race, etc.

I agree that private property owners don't have "TOTAL ABSOLUTE" freedom. However private property owners have lots of control. (I am not suggesting this, but if I wanted to I could post a sign in my front yard that said "white only" and I doubt anyone could do anything about it.) The more "public" property becomes the more it is controled by legal precedent and case law, etc. and the less "total absolute freedom" they have to as you say "nilly-willy" make restrictions.

The problem is I have no idea what type of case law there is concerning these so called "illegal searches" and "illegal restrictions." Until someone tells the e Center to stick it they aren't going to search my bag we really don't know what the law would say concerning that particular incident and the rights of US -versus- THEM. Even if someone sues the E Center and wins that doesn't mean that "Energy Solutions Arena" can't continue to search bags and limit items. Now at that point ESA is probably likely to loose if someone sues them because of the precedent set in the ECenter lawsuit. ESA would probably be more likely to back off if confronted.....but they can still do what they want until told otherwise. There kind of becomes a point where competent legal counsel knows what the courts will decide but this doesn't happen until there is plenty of legal precedent. Seems like the underlying problem is there isn't a lot of legal precedent to determine whether these searches are indeed legal and whether they can legally prohibit certain items. Maybe someone needs to sue them.....

I am against searches and limiting guns, however I don't think we can just get mad and say these searches are illegal and nonconstitutional. If thats what someone believes, take it to court and lets see. I think most of the time, the courts are going to side with the property owners. Again, no one is forcing anyone to come into the E Center for any reason or to go to any public establishment for that reason and most courts will probably deem the searches and restrictions reasonable.

If anyone knows of any laws or court cases concerning these issues, I would love to know about them.

-PW

 

[tapehoser]

I got into a debate a while back with a well known web site administrator regarding whether or not a CFP holder was allowed to carry his/her concealed weapon into or on school grounds here in Utah. He said nay, I said yay and had the statement and clarification of the laws to back me up. The law actually states that an 'entity' of the state cannot pass firearm laws and then spells out what 'entity' means: it includes school districts.

This, then, comes down to a question of whether, because of tax revenues and state-involved moneys, the E-Center and Energy Solutions Arena could be considered an 'entity' of the state, while not wholly OWNED by the state. Does the fact that Salt Lake City or West Valley are major shareholders in those venues come into play according to the legislature?

 

[Cinhil]

Even if only 1$ of tax money is used a place becomes public domain. This of course then means that Delta Center (ie Energy Solutions Arena) and the E Center and a host of other places are perfectly fine to carry at. You cannot be restricted.

 

[Paul]

tapehoser,

Can you find a link to the law you referenced? I would love to read it.

Just as a side note, I was reading TIME magazine at lunch and read about a city in Lousianna that has prohibited wearing pants in a such a way that your briefs or boxers can be seen. You know the baggy pants with underwear hanging out the top. Violation of this ordinance can result in a $1000 fine and up to 6 months in jail. They stated in the article that 8 STATES are considering similar bans and fines!

For the record, I would carry at the mentioned places and fully support as many people as possible carrying at any and all public or private venues. I say carry 24/7 everywhere except those areas that have been legally defined as areas you can't carry. (And hopefully we can get some of those changed!!!)

I do maintain however, that if caught, you could legally be asked to leave. You could have a lengthy debate with the management, owners, and law enforcement about the issue, but at the end of the day I think you would be hauled off in handcuffs if you didn't leave. I don't believe you could be fined for bringing a gun there, only for trespassing or disturbing the peace. Until there is some State law or legal precedent in the form of case law (which if there is, none of us seem to know about it) I don't think the arguement will hold to simply say that the search or prohibition is illegal or unconstitutional. That is simply your opinion on the matter until defined by law!

All of us have agreed to be searched and have items prohibited every single time we fly. And if the arguement of $1 of tax money being used and going toward a particular place makes that place "public", then obviously the airports should be considered public. So by some of the arguments here, the searches at the SLC airport should be called illegal and unconstitutional.....

-PW

 

[bane]

PW, excellent feedback!

To answer a few of your questions, I found this:

63-98-102. Uniform firearm laws.
(1) The individual right to keep and bear arms being a constitutionally protected right ... the Legislature finds the need to provide uniform civil and criminal firearm laws throughout the state.
(5) Unless specifically authorized by the Legislature by statute, a local authority or state entity may not enact, establish, or enforce any ordinance, regulation, rule, or policy pertaining to firearms that in any way inhibits or restricts the possession or use of firearms on either public or private property.
(6) As used in this section:
(b) "local authority or state entity" includes public school districts, public schools, and state institutions of higher education.

I think from that reference, it is clear that if a piece of property is considered, in any way, to be at least partially public then only the State Legislature can make rules regarding firearms. That being said, I would draw reference again to item (5) above where it says "either [on] public or private property"... I agree with you, the court cases don't seem to have been fought to make this clear and solid to private property owners... however, what the Legislature has said here seems clear enough.

Read it again (I certainly had to!). At first reading you might say "AHA, but it says the gov't can't create a law that limits our 2nd Amendment rights on private property, it says nothing of the private property owner". I would like to point out what ELSE it says: "... [government] authority may not enforce any [rule/law] pertaining to firearms that in any way inhibits or restricts the possession of firearms on... private property." Clearly were the police to bring you up on charges for disturbing the peace or trespassing when you were merely carrying a concealed weapon they would be enforcing a law with the intent to restrict your possession of said firearm.

So, while you are right that places like the e-Center will continue to push the issue until someone gets tired of it and takes them to court, I think the statute is pretty clearly on our side and offers a reasonably strong defense. An example??? The school issue. It would seem that if ANYPLACE were up amongst the off-limits places it would be schools, but not so -- the law clearly allows concealed carry on school grounds.

Also, in reading the citation above it is pretty clear that EVEN PRIVATE PROPERTY OWNERS cannot restrict your right (they can SAY they do, but LE are not allowed to enforce any such restriction -- though I am sure you are right in that many times LE will enforce it not knowing better and thus start a long ugly battle, that I think a properly defending CC holder would win). In order to comply with that law but give control back to private property owners AT THEIR RESIDENCE (and Churches too), the Legislature wrote 76-10-530. Trespass with a firearm in a house of worship or private residence

So if the legislature had to write a "special case" law to give people the right to restrict firearms from coming inside their own houses, then obviously private property owners are not free to do whatever they wish... otherwise, for what purpose did the Legislature feel the need to write this "special case" law???

The argument "no one is forcing you to go there" holds up to a certain logic... but in the end, it's the exact same argument used during the racial debate and that argument lost; it's not a valid argument.

When it comes to the airport argument, 76-10-523.5. Compliance with rules for secure facilities, states that certain areas defined as "secure facilities" are off-limits to packing. On that list you will find the secured areas of the airport (though there are other threads on this site that talk about the airport's abuse of this right).

OK, to recap... I agree with you in regards to what would happen INITIALLY (i.e.: places like the eCenter will likely think they can search and forbid you, and some or most LE might likely think they can enforce a disturbing the peace/trespassing law and you will likely be hauled off to the judge). Who knows, there are likely even judges that won't take the time to really read the law and will judge you on what they THINK the law should say. However, properly defended and taking the issue all the way to the State Supreme Court, I believe the law is clearly on our side and the individual would win ULTIMATELY.

 

[Paul]

bane,

AWESOME POST! Excellent....I am running out the door to go deer hunting but will digest this tomorrow morning.

-PW

 

[bane]

PW, I hope you have a great hunt!

 

[Cinhil]

Thank you Bane for being able to post the relative sections of law. Also for talking about the State Secure Areas.
Another issue is federal where federal law has super-ceded state law in violation of the Constitution. This of course could be a huge debate/issue, so we will not go there, even if it looks like I have opened a can of worms by mere mention of it.
I would also like to point out that if anyone wants to have the laws on guns in Utah they ought to buy Mitch Vilos' book on Utah State Gun Laws, The Good, The Bad & the Ugly. You can probably find it at most sporting goods stores. I know I have seen it at Doug's Shoot'n Sports & at Sportsmans Warehouse. It is a superlative educational book and worth having.

 

[Paul]

Bane,

You left out one very important line:

"(7) Nothing in this section restricts or expands private property rights. "

I think the section of law you quoted from "63-98-102. Uniform firearm laws." http://le.utah.gov/~code/TITLE63/htm/63_3B003.htm needs to have line 7 included in any analysis or interpretation of the preceeding laws and lines within the law.

My interpretation of line 5 would be that local authorities can't make or enforce any laws governining public property or governing private property. (So my local city council can't make a law that controls my private property gun rights.) With reading line 7 in the same code, it very clearly states that they are not expanding or restricting private property rights. Guns on private property are very clearly a private property right and they are specifically saying in this law that they are not defining private property rights. So this is what makes me think that line 5 is simply saying the state makes the laws and that no other "PUBLIC" authority (ie. city councils, county councils, sheriffs office, etc.) can make any laws that deals with gun control on public or private property. By saying they won't enforce ordinances governing private or public property I think they are simply indicating that they won't press charges against you for violating a private property owners gun control policy or a public property gun violation unless specifically defined by state law. The private property owner still has rights as indicated very clearly by line 7. So a private property owner can still take you to court over your violation of his private property policy and rights and can legally seek to enforce their private property rights. So I agree with you completely when you say the police won't try to enforce your violation of a private property policy. However the private property owner can still seek to enforce their policies!

I think the whole issue revolves around private property rights regarding gun control and I still don't think there is a clear answer. I am in agreement that the more "PUBLIC" a property becomes the less likely they will be to be able to legally enforce a gun control restriction. However it is a private property right issue. The E Center or similar venues are private property (they are still the property of an entity though it may be a government entity). Gun control for the sake of security is very much a private property right and very much may be a constitutional right even though the property may be deemed "PUBLIC."

I believe this law is probably the reason why the University of Utah backed off with their gun control policies. They probably didn't want to be the ones that defined case law regarding their private property rights as a university because they probably felt they would loose on this issue of gun control. They would have lost because they are specifically mentioned in this law and they are very much a public entity. They are much too public.

On the flip side, because of the specific law written governing houses of worship and private residence, obviously if I told you not to bring a gun into my HOME and you then did, I would win that court case and you the gun owner would loose.

However, I think it starts getting foggier in cases such as the E Center and private property that is not a HOME / RESIDENCE. I for one would love to see someone with deep pockets (not me) challenge the E Center or some other private property owner whether public, semi-public, or private. I think this is really what it will take. I am still of the opinion however that the courts will generally side with the rights of the private property owner. The more public the entity becomes the more unlikely the gun control policies can be enforced though. The stuff in the middle is what gets really foggy!

I think we are basically in agreement. I do think you could make a pretty strong arguement sitting in the E Center security office with the cops there, that the cops can't make you leave and that the cops can't enforce the E Center's no gun policy. I think if you were prepared with the sections of law that you pointed out that you could make everyone (E Center security / management and the cops) nervous enough by having them read the law that they might even let you stay. Now that would be fun!!!

-PW

 

[Paul]

I think I will get a copy of the section of law that you stated (maybe forget to include line 7) and keep it in my wallet. May come in handy some day.

-PW

 

[bane]

I think I will get a copy of the section of law that you stated (maybe forget to include line 7) and keep it in my wallet. May come in handy some day.

-PW

I have to head out to school so I don't have time to digest your larger post just yet; suffice it to say that I had noticed that line but came to a different conclusion -- I'll read your take when I get home.

In regards to this post, I wholeheartedly agree. I wonder if it might be helpful to have a small foldable "business card" containing the relevant statutes designed for carry along with one's permit???

 

[bane]

PW, ok I finally had a chance to read your post more carefully...

First, a correction:

I believe this law is probably the reason why the University of Utah backed off with their gun control policies. They probably didn't want to be the ones that defined case law regarding their private property rights as a university because they probably felt they would loose on this issue of gun control. They would have lost because they are specifically mentioned in this law and they are very much a public entity. They are much too public.

Actually the UofU backed off b/c the statutes clearly state that CC is legal in any public school. It's not even a matter of needing to squabble over interpretations. That's not to say they've backed-off, however; last Saturday in my CC course our Instructor informed us that the U has the issue back on the agenda for the upcoming Leg. session! The battle is largely over, but it looks like they are going to keep pressing the issue -- which is good for us b/c the Legislature made them promise on record that they would stop bringing this issue before them... so it's obvious what side of the court the Legislature is in on this issue... meaning every time the U brings it before them, the definitions in our favor can only improve! YEAY!

Now, in regards to your post; I think you are basically right when you define it as "the more public the private property is" vs "the more private it is" would come in to play, at least at some point. However, you can't get a whole lot more public than the eCenter other than streets, parks, etc. Malls are pretty public too, even though they are actually private. I've done a little (not a lot) of researching into this and come across this linkregarding the downtown plaza the Church built a few years back.

I was living out of state (in CA) at the time, so I'm not familiar with the goings-on surrounding it. However, what I gather from this story is that the Church initially agreed to allow it to remain open to the general public but then once it was opened maintained they had the right to limit access to it by certain individuals who were dressed inappropriately or otherwise exhibiting speech or behaviour they disagreed with.

The story relates that the 9th Circuit Court

"ruled in favor of free speech, stating: “As a ‘thoroughfare sidewalk’ seamlessly connected to public sidewalks at either end and intended for general public use, the sidewalk in front of the Venetian is ‘the archetype of a traditional public forum.’” In addition, the court made clear that although the sidewalk is on private property, “by dedicating the property to public use, the owner has given over to the State or to the public generally ‘one of the most essential sticks in the bundle of rights that are commonly characterized as property,’ the right to exclude others. The private owner can no longer claim the authority to bar people from using the property because he or she disagrees with the content of their speech.

“The Ninth Circuit’s ruling is a victory for free speech,” Clark stated. “In no uncertain terms, it recognizes the unique role that public thoroughfares play in the ‘marketplace of ideas’ that is so fundamental to our democracy. As more and more of our public spaces are privatized, it is especially important to reinforce the principle that public thoroughfares cannot be stripped of their protected status and subject to discriminatory, one-sided restrictions just by selling them to a private entity.”

From this article it seems the issue at stake is an individual's 1st Amendment Rights on private property intended for public use. On that issue the 9th Circuit Court ruled in favor of the individual. It seems a pretty easy reach to say they might agree it holds true for an individual's 2nd Amendment Rights.