HB 276 just passed the house

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Re: HB 276 just passed the house

Postby David Nelson » Wed 12 Mar 2014 2:36 pm

The Utah Senate passed H.B. 276 “Disorderly Conduct Amendments” (http://le.utah.gov/~2014/bills/static/HB0276.html) today on the bill’s 2nd and 3rd readings by a vote of 27-1-1. Utah Sen. Mark B. Madsen proposed an amendment of the bill successfully, so the bill will return to the Utah House of Representatives for a concurrence vote.

For anyone wishing to continue to possess an unconcealed rifle or other long gun, it would be a good time to consider buying a long-gun holster (http://www.ar15outfitters.com/ncstar-ta ... _1661.html).
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Re: HB 276 just passed the house

Postby bagpiper » Wed 12 Mar 2014 3:39 pm

David Nelson wrote:For anyone wishing to continue to possess an unconcealed rifle or other long gun, it would be a good time to consider buying a long-gun holster (http://www.ar15outfitters.com/ncstar-ta ... _1661.html).


Negative ghost rider.

This bill has ZERO legal effect on the possession of non-holstered long gun. Here is the current wording added to the Disorderly Conduct statute:

3) The mere carrying or possession of a holstered or encased firearm, whether visible
or concealed, without additional behavior or circumstances that would cause a reasonable
person to believe the holstered or encased firearm was carried or possessed with
criminal intent, does not constitute a violation of this section. Nothing in this Subsection(3) may limit or prohibit a law enforcement officer from approaching or engaging any person in a voluntary conversation.


No mention at all of unholstered guns. The creation of a safe harbor in statute does not, either explicitly nor by any recognized legal/judicial construct create an unsafe harbor.

Possession of an unholstered/uncased firearm remains subject to the existing DoC statute and would be a crime under that statute only if with that possession the person:
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] the person:
(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.



I will again extend my challenge to any who claim that this bill will create an unsafe harbor for unholstered guns to either provide citations to a case in which analogous safe harbor was construed as creating such an unsafe harbor, or to any legal dictionary, legal text book, or other recognizable authority that teaches or expounds such a theory of legal construction.

And the Senate Amendment we believe is a small positive to the other all bill. It was a friendly amendment that actually makes things a bit better. I hope the bill quickly gets the necessary concurrence vote in the House and is signed into law by our governor.

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Re: HB 276 just passed the house

Postby brainoncapitalist » Wed 12 Mar 2014 3:44 pm

Any thoughts on the amendment, Charles? Does this weaken or strengthen the bill and in what way? Is it still a good bill, from your perspective?
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Re: HB 276 just passed the house

Postby DaKnife » Wed 12 Mar 2014 4:44 pm

bagpiper wrote:I will again extend my challenge to any who claim that this bill will create an unsafe harbor for unholstered guns to either provide citations to a case in which analogous safe harbor was construed as creating such an unsafe harbor, or to any legal dictionary, legal text book, or other recognizable authority that teaches or expounds such a theory of legal construction.

Well the current (soon to be retired) wording of the Disorderly conduct says nothing at all about carrying a weapon:
(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.


Yet people have been repeatedly arrested on DoC charges because the arresting officer claims they caused alarm or annoyance. Not many have been convicted of it but they have been arrested and charged and then had to pay the expenses of defending against the charge. This now adds weapons to the text of the law but only provides exception if they are holstered or encased. Gee how can we not see how this is going to work out?

But it has passed now. And will likely be confirmed by the house and signed into law. Hopefully you are right Charles, but I have no confidence based on how Law enforcement has abused the soon to be old version of the law.
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Re: HB 276 just passed the house

Postby David Nelson » Wed 12 Mar 2014 5:04 pm

DaKnife wrote:Well the current (soon to be retired) wording of the Disorderly conduct says nothing at all about carrying a weapon[.] Yet people have been repeatedly arrested on DoC charges because the arresting officer claims they caused alarm or annoyance. Not many have been convicted of it but they have been arrested and charged and then had to pay the expenses of defending against the charge. This now adds weapons to the text of the law but only provides exception if they are holstered or encased. Gee how can we not see how this is going to work out?

Imagine my expression of abject shock; law-enforcement officers (which some have called "opinion-enforcement officers" in other instances) have actually detained, questioned and arrested individuals with legal weapons even though the current state law says nothing about weapons, proving apparently that they make it up as they go along?!? Well, that can't possibly mean that those same OEOs, er, LEOs might continue to make it up as they go along under a brand new law which creates a conditional get-out-of-jail card so long as the individual plays along to the letter, does it? Those who want to play along had better buy a snazzy long-gun holster; but, isn't that government forcing individuals to buy something, like healthcare?

Cynical mode off....

Nice catch on that factoid!
Last edited by David Nelson on Wed 12 Mar 2014 5:14 pm, edited 1 time in total.
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Re: HB 276 just passed the house

Postby bagpiper » Wed 12 Mar 2014 5:13 pm

DaKnife wrote:Well the current (soon to be retired) wording of the Disorderly conduct says nothing at all about carrying a weapon:
...

Yet people have been repeatedly arrested on DoC charges because the arresting officer claims they caused alarm or annoyance.


Exactly. It is a vague, catch-all statute. It doesn't say anything specifically about running around naked, or loitering, or playing a boom box or saxophone at 2:00 am next to your neighbor's fence. It defines disorderly conduct in vague, catch all terms and leaves it to cops, prosecutors, judges and juries to apply the law to the specifics of any given case.

In at least one case with the fellow with the pistol in the combat sling loitering around the mall in Utah county, he plead out to DoC. Rightly or wrongly, he was convinced the prosecutor could get a conviction for his conduct based on the existing statute. And frankly, I think there is a good chance he could have as well. Had the guy been walking home from a gun store, had the gun been slung across his back rather than across his chest, had there been any number of other differences, I think the odds of a conviction (or even an arrest) would have been much, much lower.

Stand on a street corner in the business district with your case open playing the sax at 8:00 at night and I doubt anyone even complains, much less arrests or can get a conviction for DoC. Stand on the public sidewalk in front of a residence, playing the same songs at 2:00 in the morning and the odds are much greater of getting complaints, arrested, and convicted. It isn't the saxophone or the music therefrom, per se, that is the problem. It is the totality of the circumstances. In one case, the music is an expected, perhaps even appreciated part of the city scene, nightlife, and culture. In the other, it is an unwanted intrusion and annoyance into the suburban tranquility, as it were.

OCing a gun is not a lot different. In many cases the totality of circumstances should lead most people to concede that whether they personally like the sight of a gun or not, it is not DoC. In other cases, most people have to concede that the overall conduct, perhaps including--perhaps even ignoring--the gun, is a likely violation of DoC.

DaKnife wrote: This now adds weapons to the text of the law but only provides exception if they are holstered or encased. Gee how can we not see how this is going to work out?


Did you read the Wikipedia article on "safe harbor" I linked to? If not, I highly recommend it.

To be overly concerned about a "safe harbor" exception to a vague, general law creating an implicit unsafe harbor is akin to being overly worried about a "reasonable man" provision being used to subvert our freedoms and make everything imaginable illegal. Both a safe harbor and a reasonable man/person test are very well recognized legal constructs. Reasonable man is the standard we apply to determine when a self-defense shooting was actually justified self-defense or whether it was criminal assault of some sort.

We haven't had much problem with vague laws being overly applied to our RsKBA in Utah because our strong State preemption has avoided most of those. But DoC is vague enough it has been abused in a few cases. I believe this bill's new safe harbor for possession of guns either holstered or cased, visible or concealed, will prevent the vast majority of abuses without making it any easier to abuse those who are in possession of an unholstered or uncased gun.

Other than those offered on the Wiki entry about safe harbor, the only analogy that springs to mind right now is our "good Samaritan" law. If a person makes a good faith attempt to render aid to someone in distress, he cannot be sued or charged even if his attempts were not successful or even if they inflicted some damage. You can easily break rips or damage internal organs with CPR. But if you are acting in good faith to help someone in distress, you are protected. This has not made it any easier to convict people of assault in cases where they are accused of injuring someone but they were not rendering aid. It just made clear that injuries inflicted incidental to good faith efforts to render aid were not criminal.

I believe we'll be quite pleased. And the 17 gun haters in the house who voted against the bill is evidence to me that legislators don't think this will make it any easier to convict those who carry a rifle to a rally. The one dissenting vote in the Senate was also from one of the more notable gun grabbers in that body.

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Re: HB 276 just passed the house

Postby bagpiper » Wed 12 Mar 2014 5:23 pm

David Nelson wrote:Imagine my expression of abject shock; law-enforcement officers (which some have called "opinion-enforcement officers" in every other instance) have actually detained, questioned and arrested individuals with legal weapons even though the current state law says nothing about weapons, proving apparently that they make it up as they go along?!? Well, that can't possibly mean that those same OEOs, er, LEOs might continue to make it up as they go along under a brand new law which creates a conditional get-out-of-jail card so long as the individual plays along to the letter, does it?


It is unfortunate that we have been unable to craft and pass a bill the last four years of trying that would provide safe harbor against DoC for any and all lawful possession of a gun without regard to holsters. And so yes, OEOs will be no more or less constrained in using DoC against the person who possesses a gun that is not cased or holstered than they have been thus far.

But even the worst of the OEOs now has black letter law making clear that mere possession of a holstered or cased gun is NOT a violation of DoC. Obviously, that no more prevents an abuse from OEOs than laws against murder stop murderers. But what prosecutor is even going to bring DoC charges for regular OC under the new provisions?

This bill is not perfect. In addition to not providing safe harbor to uncased/unholstered guns, it leaves a little wiggle room on "other conduct that would cause a reasonable person to believe the gun is possessed with criminal intent." It also doesn't end world hunger, nor cut our taxes, nor put a turkey in every pot. But what it does do is good. And I don't believe it does anything bad. Two steps forward and no steps back is a win, even if there are actually 100 steps between where we are and where we want to be.

Let us remember, Utah's shall issue permit system is far from a perfect recognition of our RsKBA. Utah law requiring guns to be "utah unloaded" if carried in public without a permit is far from a perfect recognition of our RsKBA. Our car carry law is far from a perfect recognition of our RsKBA. Our parking lot preemption bill is far from a perfect recognition of our RsKBA (and far from a perfect recognition of employer property rights as well). But I think almost every gun owner in Utah would agree that each of these laws individually, and taken together, represent a much better situation than were our laws before these provisions were passed.

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Re: HB 276 just passed the house

Postby David Nelson » Thu 13 Mar 2014 10:18 am

According to the Utah Legislature status report (http://le.utah.gov/DynaBill/svotes.jsp? ... 17&house=H) of H.B. 276 "Disorderly Conduct Amendments" (Rep. Oda, C.) of 10:52 a.m. today, the bill was passed on final passage by a vote of 63-8-4 and will be prepared to the governor for his signature or veto.
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Re: HB 276 just passed the house

Postby Utah_patriot » Thu 13 Mar 2014 10:33 am

I was just going to post that it passed concurrence in the house on to the governor from the president very excited.

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Re: HB 276 just passed the house

Postby bagpiper » Thu 13 Mar 2014 10:37 am

Good news. I notice that among those voting against the bill are the usual cast of rabidly anti-RsKBA legislators (all Democrats, sadly as such votes continue to reinforce the perception that the party supposed of civil rights, is overtly hostile to our RsKBA). I don't see a single pro-RsKBA legislator voting against this bill anywhere.

The hoplophobes among the legislature are certainly not acting like they believe this bill will make it easier to hassle any gun owners.

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Re: HB 276 just passed the house

Postby brainoncapitalist » Thu 13 Mar 2014 11:12 am

This makes me so happy. I was starting to wonder if we'd ever get this passed the way things have been going the last few years. :dancing:
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Re: HB 276 just passed the house

Postby gravedancer » Thu 13 Mar 2014 11:55 am

David Nelson wrote:
DaKnife wrote:Well the current (soon to be retired) wording of the Disorderly conduct says nothing at all about carrying a weapon[.] Yet people have been repeatedly arrested on DoC charges because the arresting officer claims they caused alarm or annoyance. Not many have been convicted of it but they have been arrested and charged and then had to pay the expenses of defending against the charge. This now adds weapons to the text of the law but only provides exception if they are holstered or encased. Gee how can we not see how this is going to work out?

Imagine my expression of abject shock; law-enforcement officers (which some have called "opinion-enforcement officers" in other instances) have actually detained, questioned and arrested individuals with legal weapons even though the current state law says nothing about weapons, proving apparently that they make it up as they go along?!? Well, that can't possibly mean that those same OEOs, er, LEOs might continue to make it up as they go along under a brand new law which creates a conditional get-out-of-jail card so long as the individual plays along to the letter, does it? Those who want to play along had better buy a snazzy long-gun holster; but, isn't that government forcing individuals to buy something, like healthcare?

Cynical mode off....

Nice catch on that factoid!


I fail to see how the new wording makes it any MORE likely that someone OCing a long gun gets charged with DoC. In other words, if you decide its a good idea to walk into the mall carrying an AR15, it will still be up to the judgement of the responding officer whether you get charged with DoC. Its always been that way, it will continue to be so. This new law will have no effect on the situation of an openly carried long gun.

However, the law DOES explicitly define that openly carrying a holstered firearm does NOT constitute DoC. That is a win for carry rights. I only rarely OC, typically choosing to loosely conceal instead, but even I see it as a win for open carry.

So for those keeping score at home... Effect on carry of long guns (or any unholstered firearm for that matter): 0, Effect on open carry of a holstered firearm: +1... still a victory in my book.
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Re: HB 276 just passed the house

Postby David Nelson » Thu 13 Mar 2014 12:27 pm

gravedancer wrote:
David Nelson wrote:
DaKnife wrote:Well the current (soon to be retired) wording of the Disorderly conduct says nothing at all about carrying a weapon[.] Yet people have been repeatedly arrested on DoC charges because the arresting officer claims they caused alarm or annoyance. Not many have been convicted of it but they have been arrested and charged and then had to pay the expenses of defending against the charge. This now adds weapons to the text of the law but only provides exception if they are holstered or encased. Gee how can we not see how this is going to work out?

Imagine my expression of abject shock; law-enforcement officers (which some have called "opinion-enforcement officers" in other instances) have actually detained, questioned and arrested individuals with legal weapons even though the current state law says nothing about weapons, proving apparently that they make it up as they go along?!? Well, that can't possibly mean that those same OEOs, er, LEOs might continue to make it up as they go along under a brand new law which creates a conditional get-out-of-jail card so long as the individual plays along to the letter, does it? Those who want to play along had better buy a snazzy long-gun holster; but, isn't that government forcing individuals to buy something, like healthcare?

Cynical mode off....

Nice catch on that factoid!

I fail to see how the new wording makes it any MORE likely that someone OCing a long gun gets charged with DoC. In other words, if you decide its a good idea to walk into the mall carrying an AR15, it will still be up to the judgement of the responding officer whether you get charged with DoC. Its always been that way, it will continue to be so. This new law will have no effect on the situation of an openly carried long gun.

However, the law DOES explicitly define that openly carrying a holstered firearm does NOT constitute DoC. That is a win for carry rights. I only rarely OC, typically choosing to loosely conceal instead, but even I see it as a win for open carry.

So for those keeping score at home... Effect on carry of long guns (or any unholstered firearm for that matter): 0, Effect on open carry of a holstered firearm: +1... still a victory in my book.

Law-enforcement officer Barney Fife reads through his new 2014 pocket-sized criminal code and sees that the disorderly conduct law now offers a condition whereby, if an individual carries a long gun which is "holstered or encased," the individual hasn't violated the law. Officer Fife isn't a lawyer and, for the protection of his own career, adopted a kind of "arrest all likely criminals and let the courts sort it out" simplicity to his understanding of a reasonably articulable suspicion while he was still in LEO training. It has served him well, even if his supervisor, Andy Taylor, sees more shades of grey in the law than he does. Trying to understand the new disorderly conduct condition, Officer Fife can't imagine a legitimate reason for an individual to act in any way other than what the law provides, and decides it might be best to let those individuals with long guns which are holstered or encased go about their business while others with long guns which aren't holstered or encased must be a violation if only because such behavior doesn't comport with the only expressed condition to avoid such arrest.

In other words, "up" makes its own "down," and "black" makes its own "white," sometimes. The creation of a condition means in the minds of too many LEOs that any variation of the condition is a violation. Current law demands LEOs to make their own determination because the law never mentions weapon or firearm possession. But, the average 104-IQ LEO who knows now that the condition is defined as legal might not wish to risk scrutiny by determining that any variation is also legal.
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Re: HB 276 just passed the house

Postby UtahJarhead » Thu 13 Mar 2014 12:36 pm

My view point is that the law appears to carve out a niche for a specific type of carry to outlaw for two reasons. The first is the Open Carry situation that the universities are seeing in that "It's a concealed permit, so it must be concealed" and that any variation of it must be a violation, just like David mentioned.

The second is that the representative that introduced this bill did so SPECIFICALLY BECAUSE he said the JC Penney rifle carrier wasn't guilty of a crime and he should have been. The law was created specifically as an attempt (successful one?) to make OCing a rifle illegal if it serves a purpose that they do not agree with as being legitimate.
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Re: HB 276 just passed the house

Postby David Nelson » Thu 13 Mar 2014 12:48 pm

UtahJarhead wrote:...the representative that introduced this bill did so SPECIFICALLY BECAUSE he said the JC Penney rifle carrier wasn't guilty of a crime and he should have been. The law was created specifically as an attempt (successful one?) to make OCing a rifle illegal if it serves a purpose that they do not agree with as being legitimate.

Yikes. That is all the legislative intent we need to understand the bill.
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