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

[NickEllis]

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.

Dear Senator Brophy,

In the recent hubbub over the magazine ban, I was until recently unaware of the following change to Colorado statute 18-9-106 that somehow slipped through:

18-9-106. Disorderly conduct


(1) A person commits disorderly conduct if he or she intentionally, knowingly, or recklessly:

(a) Makes a coarse and obviously offensive utterance, gesture, or display in a public place and the utterance, gesture, or display tends to incite an immediate breach of the peace; or

(b) (Deleted by amendment, L. 2000, p. 708, § 39, effective July 1, 2000.)

(c) Makes unreasonable noise in a public place or near a private residence that he has no right to occupy; or

(d) Fights with another in a public place except in an amateur or professional contest of athletic skill; or

(e) Not being a peace officer, discharges a firearm in a public place except when engaged in lawful target practice or hunting; or

(f) Not being a peace officer, displays a deadly weapon, 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.

The addition of section (f) makes the legality of open carry a mere judgment call to law enforcement. Open carry has long been a sacred right in Colorado. This redefinition had the potential to broadly affect this right.

Is there any hope of clarifying this change through further legislation in a manner that establishes boundaries on law enforcement officials? I hunt in GMU 471 (Aspen area), and as the statute now stands I just went from legally carrying my sidearm from Ashcroft/Taylor Pass to Aspen's hardware store and back, to being completely unsure if or when that could land me in jail.


Thank you,

Nicholas Ellis

 

[CoRoMo]

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?

 

[X-Rap]

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.

 

[flphotog]

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

 

[JRH6856]

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

Depends. Can an aggressor be considered a lawful target?

 

[Frank Ettin]

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

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

 

[X-Rap]

What do you say about f Frank?

 

[Frank Ettin]

What do you say about f Frank?

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.

 

[X-Rap]

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.

 

[Xiphoticness]

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.

 

[MErl]

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

 

[gc70]

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.

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.

 

[Frank Ettin]

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

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.

 

[coloradokevin]

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.

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?

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).

 

[BSA1]

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.

 

[230RN]

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:

COLORADO CONSTITUTION

ARTICLE II
Bill of Rights

Section 3. Inalienable rights. All persons have certain natural,
essential and inalienable rights, among which may be reckoned the
right of enjoying and defending their lives and liberties; of
acquiring, possessing and protecting property; and of seeking and
obtaining their safety and happiness.


Section 13. Right to bear arms. The right of no person to keep and
bear arms in defense of his home, person and property, or in aid of
the civil power when thereto legally summoned, shall be called in
question; but nothing herein contained shall be construed to justify
the practice of carrying concealed weapons.

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

 

[Mobuck]

"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).

 

[NickEllis]

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.

I don't believe that is a new change to the law.

We have so many in place that I'm sure we are at risk every time we do anything with a firearm. Do you have a concealed carry permit? If so that would help.

Greg B.

 

[X-Rap]

I don't believe that is a new change to the law.

We have so many in place that I'm sure we are at risk every time we do anything with a firearm. Do you have a concealed carry permit? If so that would help.

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

 

[MErl]

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.

 

[CoRoMo]

Do you have a concealed carry permit? If so that would help.

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.

 

[NickEllis]

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!

 

[MErl]

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.

 

[JohnBT]

"GATTOP is a an old common law offense"

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

 

[NickEllis]

The following email sent:

Dear Senator Brophy,

The problem comes in the recent redefinition of 'deadly weapon' that took place in bill 13-1043 (to CO Statute 18-1-901) on March 15th.

Statute 18-1-901 used to define a deadly weapon as the following: a (I) firearm, (II) knife, (III) bludgeon, or (IV) any other object 'when these are used or intended to be used as capable of producing death or serious bodily injury'. However, the changes implemented by bill 13-1043 extended this previous definition only to II-IV above ('knives, bludgeons, any other weapons'), while now defining (I) 'firearms' as deadly weapons irrespective of intent to produce death or bodily harm. (I have attached the bill for reference)

This change in the definition of a deadly weapon affects statute 18-9-106 on 'Disorderly Conduct' significantly. The definition of Disorderly Conduct in 18-9-106 was written with the original definition of 'deadly weapon' (statute 18-1-901) in mind; therefore the charge of Disorderly Conduct only applied when knives, guns, bludgeons or other weapons were used in a manner capable of producing death or serious bodily injury. Now, with the change implemented on March 15th, simply displaying a firearm is sufficient cause for disorderly conduct, irrespective of use.

This change has only been noticed recently within the Colorado firearm community, and has begun to generate no small amount of concern. In our opinion, this change has the potential to completely undermine open carry in Colorado.

Thank you,

Nicholas Ellis