That cop is grossly mis-characterizing the disorderly conduct statute, shocking I know.
The statute actually says the following (and UT is a state where textualism in statutory interpretation is pretty popular although you’d have to look at case law to know how these things would be most likely to be interpreted):
76-9-102. Disorderly conduct.
(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.
Amended by Chapter 20, 1999 General Session
Under the first part of (1)(a) we do not arrive at disorderly conduct because he wasn’t be ordered to move from a public place, he was being told to cover his gun up. Was this young man knowingly creating a hazard? It seems a stretch to assert going about your business with a handgun properly secured in a quality holster is creating a hazard.
Was he creating a physically offensive conditions? Probably not but for the sake of argument let’s say we wrest the interpretation of that clause to include his acts, the statute still requires that the act serve no legitimate purpose. If the young man is legally allowed to OC he has a legitimate purpose.
Moving on to (b) to it seems a stretch he was intending to cause inconvenience, there is a stronger argument for intent to cause annoyance or alarm. He arguably had substantial certainty that OCing a gun on a university campus would do that. There is of course a strong argument that he didn’t. He claims he has been doing it for over a year with no incident. Further if it is legal why would it cause alarm to a reasonable person? Again say we find “intent” (in the legal sense) to cause alarm or annoyance. The statute says it is only disorderly conduct if he and then gives a list of activities. Is this an enumerated list or should be interpret it as illustrative of the types of activity that violate the statute. Either way the young man did not violate it. First he did not engage in any of the enumerated activity. The only one you can make an argument for is threatening behavior, the argument being that having a holstered weapon in plain view is itself threatening behavior. Besides being absurd for common sense reasons, it doesn’t not jive with an inter texualist analysis. The low allows for OC of a loaded gun with a CFP (people do not seriously contend otherwise generally and have never really objected in other contexts but rather contend in the context of a university they suddenly argue the law doesn’t allow it, an untenable position). Further there is a law that clarifies this very point before the governor right now. It makes very plain (although it really was already patent to anyone without an agenda before) the fact that simply open carrying a gun is not brandishing or otherwise threatening.
If we say that the list in not limited to those activities listed but rather illustrative (something common in statutory interpretation and IDK what UT courts have said) I have a hard time finding anything in the young man’s conduct that approximates the activities on the list.
I wish the young man would have been up on the disorderly conduct statute to ask the office what part of it he was violating. They would have been more likely to taze him than give a coherent explanation.
Perhaps, although I’ll need to do some case law research and better flush out all the issues, I’ll email the chief of police down at UVU and ask him exactly what part of the kid’s conduct violated disorderly conduct. Maybe I’ll email Elder Holland’s son who is the president of UVU, I thought that group of people believed in honoring and obeying the law.
I hope someone steps up as a test case and not only gets the law clarified but turns around and sues the school, the police force, the chief, the individual officers, and the president of the school. Maybe they would each rethink thumbing their noses at state law, the legislature, and more importantly the citizens of Utah.
This kind of nonsense is needs to be stood up to.
I would hope to see the political groups like the USSC and possibly the eagle forum mobilize on this and make the voices of the Utah citizenry heard. An email/letter/call campaign ought to be directed at the AG for his inexplicable and disturbing fence sitting. He needs to know UT voters wont support that. Same for embattled governor Herbert. These are the chief executive officials who could change the way UVU police are handling this quickly. State reps should be contacted too. They can put pressure on UVU because they hold the purse strings. UT is desperate to find places to make cuts in their budget, how about at the University generally and the police department specifically. The legislators also need to know that UT wants a bill make this issue so explicit no matter how anti someone is they cannot argue OC is not legal.
I'd also like to see a rally of some sort to keep the spot light on this issue, keep feet to the fire, and to make a statement.
Sorry I was a bit over-defensive and took it that way. Glad we could shed some more light as to why we choose to open carry, and glad that you are open-minded enough to see merit in those reasons!
