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Redefinition of Open Carry (Colorado Statute 18-9-106)

Discussion in 'Legal' started by Gaiudo, Apr 18, 2013.

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  1. Gaiudo

    Gaiudo Member

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    As has been noted elsewhere, a number of troubling changes to Colorado law slipped through rather unnoticed amid all the messiness of the magazine bans. One of these is Colorado Statute 18-9-106, which makes Open Carry potentially subject to the discretion of a law enforcement officer.

    Here is the letter I submitted to Senator Brophy.

     
    Last edited: Apr 18, 2013
  2. CoRoMo

    CoRoMo Member

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    Any reply from Brophy?

    The phrase "in a manner calculated to alarm" is the kicker. Forget about the sidearm that you are carrying on your hunt, you are carrying a hunting rifle in your hands and it is most definitely a deadly weapon. I would suppose that public land is a 'public place'. So how is it really that different from carrying a hunting rifle in hand while walking into a bank? Both are 'public places' except that in one of the public places you are carrying it during a hunting activity and the other, obviously not.

    Years ago I was hiking out of the backcountry here and it being late morning, many day hikers were on their way in. The firearms that me and my companion had on us caused much alarm and concern among many of those we encountered. It was not our intent to cause this alarm, but we caused it nonetheless. I realize that if I make another early morning hike in to scout a hunting area, when I encounter the day hikers on the way out, I should again expect to stir up some emotions when they see some of the tools I brought with me. Now that their probable alarm is in my expectations, does that mean that my actions are calculating said alarm?
     
  3. X-Rap

    X-Rap Member

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    That one should have been at the top of the list with mag capacities.
    Could well be the end of OC in CO. Some with more legal abilities please chime in but that doesn't leave much to the imagination to interpret.
    As bad as Texas.
     
  4. flphotog

    flphotog Member

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    I'm certainly not a lawyer but doesn't (e) make self defense illegal?
     
  5. JRH6856

    JRH6856 Member

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    Depends. Can an aggressor be considered a lawful target? :scrutiny:
     
  6. Frank Ettin

    Frank Ettin Moderator

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    Short answer is "no" as long as the circumstances are such that the use of lethal force in self defense would be legally justified.
     
  7. X-Rap

    X-Rap Member

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    What do you say about f Frank?
     
  8. Frank Ettin

    Frank Ettin Moderator

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    Note: This analysis was affected by the new information provided by MErl in post 11. See post 13.

    It becomes a "wild card" for anyone who wants to open carry and as such probably will have a chilling effect on open carry. I think that's what the legislature intended.

    This sort of thing isn't all that unusual. It has been reported to me that in Nevada persons open carrying have been detained or arrested for disturbing the peace when people had complained. And there was some law in North Carolina about "going armed to the terror of the public." I suspect that disturbing the peace laws and nuisance laws have been used to vex open carriers. That sort of thing seems to have been tapering off in recent years, at least in some places.

    So making it illegal to carry a weapon "in a manner calculated to alarm" kind of falls in line with that sort of thing. In any case the law is written "in a manner calculated to make money for lawyers and keep courts busy." The standard is very vague, and we really won't begin to know what exactly what conduct is, or is not, permissible until the appellate courts have started to rule on how the law applies in actual practice.

    Is the law subject to constitutional challenge? Perhaps, but a lot will depend on how the current round of "bear outside the home" cases play out.

    In any case, it's a lousy law, and I'd be extremely hesitant to open carry until the courts have set some clearer standards.
     
    Last edited: Apr 23, 2013
  9. X-Rap

    X-Rap Member

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    Especially since CO like many states doesn't have a right to OC law but rather no law against OC. That may seem like parsing words but the difference of the two is important.
    There have always been stories of OC carriers being confronted by police on brandishing charges but they were for the most part frivolous and encountered in larger populations. This no doubt will have a chilling effect on OC here.
     
  10. Xiphoticness

    Xiphoticness Member

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    Going armed to the terror of the public

    I will say that we do have a law against this in NC, but that most LEOs don't even know it's on the books and I have never had a problem with it. As far as I know, nobody has ever been charged with it for mere open carry, it is normally tacked on to another charge to increase a sentence or such. If you have the firearm properly holstered, in the case of a handgun, or slung, in the case of a long gun, then they really have no case to make this charge stick. Basically, use common sense and be courteous in dealing with any officers who might want to check you out and you'll have no problems. And really I think being courteous when openly carrying a firearm is a necessity anyway as you are being a representative of all of us who support gun rights when you do this. I have my CCW but still open carry a good bit just to expose people to a firearm in their regular routine and have it be a positive experience. I think we need to do this more as it puts the lie to the anti's claims that people who own guns are violent and dangerous.
     
  11. MErl

    MErl Member

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    Just a clarification:
    The change was to the definition of Deadly Weapon. The statute for disorderly conduct is unchanged.

    The old definition of Deadly Weapon included intent to cause harm, the new definition is Firearm without mention of intent. Any other weapon still requires intent to be deadly but a firearm is a deadly weapon regardless of intent.

    ETA:
    Bill Text.pdf
     
  12. gc70

    gc70 Member

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    Most LEOs in NC are unaware of 'Going armed to the terror of the public' because there is no such statute. GATTOP is a an old common law offense that was covered by the NC courts in State v. Huntly, 25 N.C. (3 Ired.) 418 (1843).

    Walking around in public while brandishing a gun and threatening to kill someone (the circumstance in Huntly) is a far cry from a soccer mom getting the vapors over the sight of a holstered gun. More to the point, every GATTOP charge I have seen reported in NC involved the person who was arrested actually shooting their gun.

    Nevertheless, even with nearly two centuries of judicial history, the fear of GATTOP has a chilling effect on open carry in NC. The uncertainty involved in the new CO law will probably have an even more chilling effect.
     
  13. Frank Ettin

    Frank Ettin Moderator

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    That's important information and changes part of the equation. The bottom line is that the change in the definition of "deadly weapon" probably could have a significant effect on the application of the Disorderly Conduct statute.

    With "use" and "intent" no longer being material in deciding if something is a deadly weapon, the mere display of anything specifically defined as a deadly weapon could, without consideration of intent or effect, be chargeable as Disorderly Conduct. That could be applied to make the open carrying of a firearm, for any otherwise lawful purpose, unlawful as Disorderly Conduct.
     
  14. coloradokevin

    coloradokevin Member

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    Hmmm... I totally missed this change, among all of the others we've seen around here recently.

    I'm sure you'll hear back from Mr. Brophy about this, he is VERY pro-gun, and is one of our best allies here in Colorado. I've received quite a few e-mails from him since I first wrote to him this winter, and I've been quite impressed with his stance on the 2nd Amendment so far. He also stood up for us during the debate over our recent gun control laws.

    My girlfriend always carries openly as well, which causes me some concern given the nature of some people's stupidity. Strangely, I've noticed that most people on the trail don't even notice her guns. The people who do fall into two distinct categories of people: hunter looking types who gladly strike up a conversation with us once they see that she's a gun person. Or, hippie looking types who suddenly look alarmed and quickly excuse themselves from conversations (after all, guns turn each of us into murderers).
     
  15. BSA1

    BSA1 Member

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    Public View

    I wonder what Colorado's definition of "Public Place" is?

    As compared to "Public View"?

    For example if someone was in their front yard while open carrying a firearm that is visible to all neighbors and passerbyers (is that a word?) be arrested since they are "displays any article used or fashioned in a manner to cause a person to reasonably believe that the article is a deadly weapon, or represents verbally or otherwise that he or she is armed with a deadly weapon in a public place in a manner calculated to alarm.

    It would not take much for a angry neighbor or some who is anti-gun driving by to drop a dime to the police.

    Even if it is not a violation of 18-9-106. Disorderly conduct could this behavior be used to trigger a investigation by other Government agencies such as Child Welfare to conduct an investgation to ensure firearms are being properly stored unloaded and in a locked cabinet and ammunition is likewise locked up for the safety of any children that live or visit (i.e. grandchildren) the home?

    This is not far fetched when students are suspended from school for wearing Tee-Shirts that school officials arbitiarily deem offense.
     
  16. 230RN
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    230RN Marines raising the left-leaning Pisa tower.

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    Very troubling. The tinkerers are at it again. For your immediate reference and convenience, here are the relevant portions of the Colorado Constitution regarding self defense and firearms:

    Of course, the question of "constitutionality" does not inhibit legislators from making laws with the idea that they will be enforced for as long as nobody has the resources to challenge them in court ... which may take years, even decades.

    Terry, 230RN
     
    Last edited: Apr 24, 2013
  17. Mobuck

    Mobuck member

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    "in a manner calculated to alarm"
    That's the catch phrase. In previous times, the sight of a firearm in most any place would not cause alarm as long as it was carried in a nonprovocative fashion(by that I mean it wasn't pointed at people or waved about threateningly).
    In the present phase of foolishness, the sheeple find any type of "weapon" to be alarming. Thus, any exposure of a gun would cause alarm triggering the catch phrase and putting the cops on your case. You can be assured that your innocent intentions will be morphed into plans for mass murder.
    The only resolution would be to segregate those who fear guns, tools, or whatever into a place where no such items exist and let the rest of us go about our business w/o hassle(or we can retake control of the law makers and change these foolish regulations).
     
  18. Gaiudo

    Gaiudo Member

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    Here is what Brophy replied. Apparently he is unaware of any change. If this snuck through without even Greg noticing this should really be raised, and in detail.

     
    Last edited: Apr 24, 2013
  19. X-Rap

    X-Rap Member

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    Not an impressive reply from one of our strongest supporters .I'm either reading it wrong or he is a duffus very disappointing
     
  20. MErl

    MErl Member

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    probably got that response because what you quote to him was unchanged. it was the definition change that snuck through without people looking at follow on effects.
     
  21. CoRoMo

    CoRoMo Member

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    How is that, Greg? A concealed carry permit helps a Coloradoan open carry?

    He doesn't seem to understand that HB13-1043 happened. Surely it went through his Senate chamber. I'm tempted to email him with the pdf link to the bill. It may be that he doesn't understand how this "simple" redefinition changes things so severely.
     
  22. Gaiudo

    Gaiudo Member

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    Hey Merl,

    Sorry, it's late here in Greece. I'd like to send Brophy another email detailing the change of definition that hurts us here. Would you mind spelling this out for us once more? I'll then submit it to him for examination. Thanks. (Or you can tell me to stop being lazy and figure it out myself! :)
     
  23. MErl

    MErl Member

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    CoRoMo, It is very likely that the full effects were not known when HB1043 went through. I had to do the search through the CO statutes myself to find that disorderly conduct change. I've seen no other analysis though I have not searched hard for any. My search was not complete, I stopped on the first thing I found that had a big effect. There may well be other effects lurking, I was initially wondering about restrictions on storage or transport of deadly weapons.

    Gaiugo, the pdf I linked above is the change that matters. The Disorderly statute did not apply when open carrying because that firearm was not a deadly weapon unless it was used as such. It applies now. Could probably supply that link and a cut/paste of the contents with a short explanation to get a better response.
     
  24. JohnBT

    JohnBT Member

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    "GATTOP is a an old common law offense"

    The phrase goes back to at least 1328 and the Statute of Northhampton.
     
  25. Gaiudo

    Gaiudo Member

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    The following email sent:

     
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