Conviction overturned in Ellensburg,WA case against open carrier.........

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(NOTE FROM BOTTOM OF PAGE: Appellant must realize that had the State charged him under RCW 9.41.270 the conviction would most likely have been sustained. The witnesses in this case, two separate district court judges, a unanimous jury, and the City Prosecutor all agreed that Appellant’s choice to carry a firearm in his waistband with the hammer cocked “warranted alarm for the safety of other person.” If Appellant seeks to educate the public about the scope of the constitutional right to bear arms in the state of Washington, he may wish to utilize less provocative methods that do not entail the threat of criminal prosecution.)

I might live in CA, but even I have a Washington State license to carry concealed pistol -- not necessarily relevant to open carry, but that's how WA would prefer you to carry.
 
BTW, congrats for beating the rap.
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Edited because who am I to "hope the state doesn't bother to follow through" and deny another soapbox to our 2nd Amendment stalwart FishOrMan.

Be careful what you wish for.
 
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Amazing. Good work. Given justice is rarely free, how much did this exercise cost you?
 
Riverdog,
"...hope the state doesn't bother to follow through."

Why do you hope that doesn't happen? You just got done stating WA would prefer I carry concealed with a permit to bear arms. Shouldn't we give up our freedoms whenever the state feels they aren't necessary?


Rick,

I don't have the total figures, (which should, but won't be allowed to include Spokane).

Just transcripts costs were over 700.

Each court date required a round trip drive of 6 hours, (I have forgotten how many times I've made it).
 
So, FishOrMan, are we to infer from your remarks that you refuse to obtain a Washington state CPL? I noted on your blog that you said
Another reason not to get a CPL, (beside the fact that a CPL is just playing into the gun control crowd's hands).
It appears that you are one of the Second Amendment stalwarts who believes that any law that regulates your bearing arms is a law that you will break simply to make the point of standing on principle?

I'm just curious, now. I understand the whole business of engaging in peaceable open carry to exercise one's rights (and I do believe that open carry has its place), but I would like to hear your reasoning as to why the CPL is "just playing into the gun control crowd's [sic] hands?" Do you believe that it's okay to carry concealed without a CPL? Do you routinely violate all the other laws and ordinances that regulate all our other Constitutional rights? If not, why not?
 
I don't see a problem with open carry. Tacticly it isn't as good, but from a moral standpoint I don't see a problem so long as it is done legally.
 
Yes, I refuse to WILLINGLY "obtain" a CPL, (which I believe is an infringement upon my RKBA). Does that make your stand, Old Dog, one that you don't believe it is an infringement?

No, I do not break 'laws' to stand on principles. If you noticed I open carry to go out of my way to NOT break laws.

Yes, I believe it is okay to carry concealed without a permit. No harm has ever come from the simple act of carrying concealed without a permit. Besides the fact it is an unalienable right, (yup, back to that toilet paper called the Constitution).

As for your last question;
Do you routinely violate all the other laws and ordinances that regulate all our other Constitutional rights? If not, why not?

If you noticed, I didn't say I break laws. Once again, to NOT break laws is the very specific reason WHY I open carry. Unjust as they may be, I do not break laws for the very simple reason that the state responds to that at the point of a gun.

Yes, both of us will likely end up in the same place... but I will not go willingly.
 
Hey, FishOrMan, I can understand you being a little touchy about these subjects, given the ordeal you've been through ... I'm simply trying to see where exactly you're coming from.

Perhaps one can construe having to get a CPL to exercise a Constitutional right an infringement on that right. After all, one has to pay (initially) sixty bucks of one's hard-earned money to the state government and spend a half hour or so down at the sheriff's office to get a license (good for only five years) ... But, the reality is, the nature of government is to tax its citizens, ostensibly for the citizenry to reap in the shared benefit of whatever services the government provides ... Whether or not the taxes and fees we're charged are right and just is subject of another debate.

But, another reality is that at least this state government allows its citizens to exercise that Constitutional right, albeit grudgingly and with fees attached.

Now, I do regard the restrictions assigned to our CPLs -- no carry in government offices, bars, hospitals, public schools -- as an infringement upon my 2nd Amendment rights.

I am, however, a realist, and understand that there are effective ways to fight unlawful or unreasonable laws and ordinances, and there are ineffective ways to fight these laws ...

As a pretty pragmatic person, I just don't think carrying a cocked'n'locked 1911 tucked into my waistband into my local Fred Meyer is gonna garner a lot of sympathy for my beliefs.

Why do you consider it better to carry openly than to carry concealed?

No, I do not break 'laws' to stand on principles.
So ... why did you do what you did then (not that open carry is in and of itself necessarily a violation of the RCW)? Because surely, as a resident of this state, you were aware of the provisions of the RCW, probably knew that you could be charged with some violation of the law, and furthermore, probably knew what the result of your actions would be given the nature of law enforcement in Ellensburg?

You won your case in court. However, isn't it possible that there is any negative publicity resulting from the case? That the negative consequences of this whole episode outweigh any positives? Was our cause -- not just yours --- furthered by this case? Now the Ellensberg cops know that next time, they simply charge you under the RCW instead of city code. I'm given to understand that the NRA, SAF and CCRKBA didn't leap to provide you any legal assistance. What's next for you? How will you proceed in the future as far as trying to help the rest of us change the laws for the better, or eliminate the restrictive laws, in this state?
 
FishOrMan,
When you carry outside the waistband, hammer down, will you have a round chambered (Cond 2) or not (Cond 3)? I would much rather carry in Cond 1 concealed under a jacket or vest. But I'm not into tilting at windmills and grandstanding.

I see the case being resolved with the WA legislature closing the loophole you think exists -- a single sub-paragraph would clarify their intent; or maybe they'll authorize open carry (blood will run in the streets). But then they'll probably require you to have a License to Carry Open :rolleyes: and the whole license thing is what you're against, because rights aren't licensed. So is concealed carry a Right? Is open carry a Right? Since the individual states are allowed by the US law to regulate firearms (sales, ownership, storage, registration and carry), I'd say it's already not a right. Why go out of your way to prove it?

Clarifying an earlier comment, while WA would prefer you to carry concealed (with a license), I have no moral objection to citizens legally carrying in the open, although I don't see how it's tactically beneficial. At the same time, I can understand how many folks will be alarmed at the open display of weapons. I might not agree with them, but I understand.

That alarm may be the trigger event for the "warrants alarm for the safety of other persons…" clause. Do you have a reading on this? Does the alarm need to be justified, or does the fact that (1)you are carrying openly and (2)they are alarmed about their safety, all that matters to show that you violated the law? When you show the uneducated that your 1911 is in Cond 3 will it matter, will the court care? You still caused the alarm to be warranted -- or did you? Who gets to interpret the alarm over safety, you or the concerned citizen? "He had no reason to be alarmed your honor because my 1911 was in Condition 3, therefore the alarm was not warranted." I don't think that's gonna fly, but who knows. Hell, OJ walked. . .

I guess we'll just stand by and wait for "FishOrman Goes to Court, Part 2".

Good luck, hope you don't set a bad precedent.
 
This is such a hoot.

"But, Your Honor, He was smoking. Second hand smoke! I was alarmed!"

"But, Your Honor, Speeding is alarming to all of us!"

"But, Your Honor, He was juggling those bowling balls. I was alarmed!"

"But, Your Honor, He was in condition 3! Alarming, Alarming!"

"But, Your Honor, Shooting a BB gun could put an eye out! It's alarming!"

"But, Your HOnor, The pot holes in the road are a hazard to safety! It's alarming!"

Who gets to decide what is alarming and what is lawful?

Ignorance of the law is no excuse. A Two edged sword.

Self defense is a right granted to us by our Creator.

Who are us to pick the fly$h!t outa the pepper?

Time for the blissninnies to grow up.
 
In regards to what the judge said about possibly being charged under the RCW and having it upheld, I did a bit of research and found this page on Sightm1911.

http://www.sightm1911.com/lib/tech/cockedandlocked.htm

The quote at the end of the article is particularly pertinent to the judges comments. As was said before, if NRA or SAF had provided an expert witness in your case, the judges/police opinion about "unsafe carry" would have been thrown out.

The quote is by Chuck Taylor, who every gun enthusiast knows is an expert on small arms, and goes something like this:

"Due to misplaced concerns about safety and liability, the police have shunned the Condition One (Cocked and Locked) SA auto, mostly in favor of DA autos that aren't any easier to use than a DA revolver. Claims that the SA auto is unsafe or requires special training are hogwash, something that too many people accept without challenge. And if you don't believe it, come see me at any CTASAA course and I'll prove it to you."

I'm just wondering if a quote like that, by a recognized expert, could have had some bearing on the case. Then again it may not be admissable unless the expert was actually on the stand.
 
I personally carry either an uncocked DA/SA pistol or the DAO keltec. I dont like having to grip the gun a certain way to make it fire. Yeah I realize it isnt a hard habit to grasp, but it always made me feel uncomfortable.

I've never owned a 1911, though I imagine I would be pissed at such ninny-headedness if it was affecting my ability to carry my favorite gun.
 
restrictions assigned to our CPLs -- no carry in government offices, bars, hospitals, public schools

Check the RCWs again. There is no general restriction on carrying in government offices. I carry in the Thurston County Courthouse all the time. Perfectly legal. There is no restriction on carrying in hospitals that is specific to your CPL. Most private hospitals ban guns, but again they are private, and are within their rights to do so. Some of the Boards of Commissioners of public hospital districts have promulgated WACs that prohibit guns, but not all. These are not "restrictions that apply to our CPLs."
 
deanf --

RCW 9.41.300
Weapons prohibited in certain places — Local laws and ordinances — Exceptions — Penalty.

(1) It is unlawful for any person to enter the following places when he or she knowingly possesses or knowingly has under his or her control a weapon:

(a) The restricted access areas of a jail, or of a law enforcement facility, or any place used for the confinement of a person (i) arrested for, charged with, or convicted of an offense, (ii) held for extradition or as a material witness, or (iii) otherwise confined pursuant to an order of a court, except an order under chapter 13.32A or 13.34 RCW. Restricted access areas do not include common areas of egress or ingress open to the general public;

(b) Those areas in any building which are used in connection with court proceedings, including courtrooms, jury rooms, judge's chambers, offices and areas used to conduct court business, waiting areas, and corridors adjacent to areas used in connection with court proceedings. The restricted areas do not include common areas of ingress and egress to the building that is used in connection with court proceedings, when it is possible to protect court areas without restricting ingress and egress to the building. The restricted areas shall be the minimum necessary to fulfill the objective of this subsection (1)(b).

There IS a restriction on carrying in hospitals that do inpatient mental health.
There IS a general restriction on carrying in FEDERAL government offices (yes, I realize that is not RCW).
 
The History of Open Carry in WA State

I posted this on Packing.org, but it bears repeating here:

I have to add a few things which illustrates the unfairness of the situation.

The Legislature actually banned open carry in the state from 1994 until 1997 specifically in statute, in 9.41.050. See here for more details on the open carry ban. If the Legislature intended to ban open carry, they would have amended RCW 9.41.270. They did not. See even more information here. The open carry ban was repealed, so why are cops still hassling open carriers?

The answer is even more interesting. You see, the 1994 "open carry ban" had a provision allowing cities, counties, and towns to exempt itselves from this law, 34 counties out of 37 took advantage of this law for the entirety of their counties. You can guess which three counties refused to do so. One of them was King County, obviously, where a huge majority of the "open carry hassling" occurs. The cops were used to this open carry ban, and had no problems popping people for it. It was illegal at that point.

Then the Legislature comes in and repeals that law. A good thing, a state rarely repeals gun laws after they've been passed. So if the open carry ban was repealed by the Legislature, why are the cops in Kng County still hassling open carriers?

Because they saw an opportunity under RCW 9.41.270 to do the same thing as the repealed law, even though the Legislative intent was not to ban peacible open carry of a handgun when this law was originally passed in 1969. So not only did they enforce this law and intimidate people, using the "CPL revocation" provision to make the claim that "A condition of your licensure is only conceal your firearm, NEVER OPEN CARRY IT", and the only case under RCW 9.41.270 was overwhelmingly negative due to the type of firearm carried (an AR-15 slung). Suprisingly enough, the Spencer case occured in 1991-1992 time, before the open carry ban.

King County right now is a hodgepodge of attitude towards open carry. The King County Sheriffs Office believes that open carry was legal due to the history of the 1994-1997 period. Seattle doesn't agree, and neither does Federal Way or Des Moines from personal experience and speaking with it's law enforcement officers. Basically, the only places you can probably open carry in King County without huge fear of arrest is unincorporated land, and cities with contract PD's with the sheriffs office.

The judge in the FishOrMan (the Ellensburg open carry case where the city law banning open carry was overturned as violative of state preemption) case wasn't aware of the mechanics of his 1911 firearm obviously. Another mistake may have been to not bring up the history of 9.41.050. This is partly my fault as far as that's concerned, because I felt it not as important as the preemption provisions because he was only charged with the city crime. Seeing the end of the decision by the Superior Court Judge changed my mind as far as that is concerned.

Personally, I wouldn't open carry at all until a Legislative clarification or an AG's opinion comes down the pike. Whether or not that actually happens is another story. The Legislature probably won't change the law specifically for open carry to be "legal" because their history indicates that open carry is legal, and the only reason there's such fear is due to bad legal representation and bad lawyering in general by those who have open carried, FishOrMan notwithstanding.
 
Lonnie Wilson said:
Henry,

It does not MATTER here about whether or not the handgun is holstered or not. Even a professional OWB holster still results in harassment and threats under 9.41.270 in this state. I know, because I've had it happen to me.

It DOES matter, IMHO, not because the harassment would stop, but I'll bet they would be reluctant to charge you, or they would lose their case if they did so.

Harassment is one thing, prosecution is another, and assuming you are not charged, the more you get "harassed" by a particular police agency, the stronger your basis for bringing a charge against that department. I know because I was "harassed" while open carrying here in Ohio, and consulted legal counsel at the time.

All this notwithwstanding, I have to agree with those who find the Mexican/Tiajuana style of open carry to be an exceedingly poor choice with which to make ones point.


BB62
 
Well this gets even more interesting.

The original law was passed in 1969. I'm not 100 percent sure what the exact language of the law was, however according to the history, the law was first created in 1969.

The fellow gun owner pointed out something interesting. In May 1967, a group from the Black Panther Party for Self Defense has stormed the California Legislature with rifles in their hands. They were unloaded, however it caused the California Legislature to reflexively ban open carry in their state. I am not sure what the exact language was.

Washington State had a bi-annual Legislature at this point. If they follow along the same lines, the Legislature had a 90 day session that ended in April 1967. Their next meeting time would have been in 1969, after the 1968 elections.

Needless to say, the evidence, though based on mere coincidence, is damned compelling. I along with my fellow gun owner friend will be doing a lot more research into this law.

If he's right, and I have a strong hunch that he is right, this law was meant as a tool to target the Black Panthers, and blacks who carried guns in general in an open fashion. We had thought that the effect of the Panthers storming the California Legislature was limited to California and a couple of anti-gun states. Apparently we were wrong, and we'll be doing more research into this...

Developing.....
 
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