Testing the law without being arrested?

[Owen Sparks]

A neighboring state with which we have reciprocity has no law against open carry but a strict law against concealed carry. So strict in fact that a weapon is considered concealed if it is "concealed in whole or in part" This has been interpreted to mean that a holstered pistol is concealed.

Anyone caught openly carrying a holstered pistol is subject to arrest for carrying a concealed weapon.

But what if you have a concealed weapon permit?

Would this not make it legal?

After all it is still “concealed” according to state law. How can they charge me with carrying a concealed weapon when I have a license to do so?

I am tempted to test this but I really would rather avoid potential arrest and expensive legal fees that would be required in order to get it before the state Supreme Court.

Any suggestions?

 

[Sam1911]

Wait, what?

If you have a concealed carry permit/license that's good in that state, then how would you be breaking the law against concealed carry?

If open carrying the weapon is legal, it seems you'd be covered every possible way.

What state are you talking about?

 

[Birch Knoll]

You say the neighboring state has a law against concealed carry, but that you have a CCW permit from your state, and the neighboring state honors that permit. You want to know if you would be violating the law by carrying concealed in that state?

If those are the facts, I'd have to say no, of course you wouldn't be violating the law. You hold a permit which the neighboring state recognizes.

Or are you asking if you can carry openly, given that you have a permit from your home state?

What state do you hold a resident permit from, and what is the neighboring state?

 

[brickeyee]

Any suggestions?

Cut the cr@p and name the states.

If you have a permit that is valid for what you are doing you should not be arrested.

You do need to be VERY aware if the validity of any permit.

NY State permits are NOT valid in NY City.

There are likely at least some others like this.

PA and Philly comes to mind as being another minefield.

Virginia has total preemption.

http://leg1.state.va.us/cgi-bin/legp504.exe?000+cod+15.2-915

§ 15.2-915. Control of firearms; applicability to authorities and local governmental agencies.

A. No locality shall adopt or enforce any ordinance, resolution or motion, as permitted by § 15.2-1425, and no agent of such locality shall take any administrative action, governing the purchase, possession, transfer, ownership, carrying, storage or transporting of firearms, ammunition, or components or combination thereof other than those expressly authorized by statute. For purposes of this section, a statute that does not refer to firearms, ammunition, or components or combination thereof, shall not be construed to provide express authorization.

Nothing in this section shall prohibit a locality from adopting workplace rules relating to terms and conditions of employment of the workforce. Nothing in this section shall prohibit a law-enforcement officer, as defined in § 9.1-101 from acting within the scope of his duties.

The provisions of this section applicable to a locality shall also apply to any authority or to a local governmental entity, including a department or agency, but not including any local or regional jail or juvenile detention facility.

 

[BADUNAME37]

Call the state police of the neighboring state.
Call a local police officer in a neighboring town and ask the same question.
Perhaps call an attorney good in gun matters in that state.

I know for a fact I would not "TEST" anything that pertains to guns, gun laws, enforcement of said laws, etc. I have a clean slate and intend to keep it that way.

I also live near a state that allows open carry. My state does not require anything for CCW, just the requirement that I am not a felon, have no convictions, am legal to own a gun and am legal to carry it -- all of which I am.

EVERY SINGLE time I go to the neighboring state, my gun and my ammo stays home, EVERY TIME!

I am not about to test the waters so to speak and be front-page news for doing so, possibly with jail time, bail, etc.
As I stated, I have a clean record and intend to keep it that way!

I do carry a pepper sprayer rig in my truck, but I do not think that is considered the same as a gun.

 

[Double_J]

I think I know what state you are talking about

Hello,
I am a long time lurker, first time poster here. I think I know of what state you are speaking of. (Mississippi possibly) I just moved from there after living there most all of my 31 years. You can "carry concealed in part" or as we mere mortals would call it open carry if you have a permit. I have open carried quite a few times on my MS firearms permit. I would not try to carry without one, except in a vehicle or at a range/hunting/fishing. The state police will tell you to "get a permit" if you ask. The Attorney General will REFUSE to answer ANY questions you might have as he works for the state, and not you. I would suggest contacting an attorney and seeing what he can do for you. I do have an attorney friend in the state, but I don't know how familiar he is with firearms laws, he does mainly business law. Let me know if you want his name and number.

 

[ColtPythonElite]

Test if you want, but even if you know the law according to your interpretation the LEO you deal with may not know it as well or interpret in the way you do. Generally, a LEO isn't gonna try your case on the street. He will likely act in good faith and do what he thinks is right even if he loses the case in court....Sometimes you beat the wrap, buy you didn't beat the ride.

 

[Mainsail]

I’m not sure what you’re asking Owen. I think you’re asking if the concealed carry permit from your state, honored in the other state, will allow open carry inside a holster because the other state considers a holster that covers any part of the gun to be concealed?

I joined the open carry movement in Washington pretty early on. At that time it was just as legal as it is today but seriously frowned upon. Open carry back then would almost guarantee a hostile police encounter. I know this because I had more than a few, wore handcuffs several times, and was even arrested once.

The very first encounter I had in Tacoma had a very angry officer start his well-rehearsed inadvertent exposure lecture, only to be frustrated about mid-way through when I pointed out that I wasn’t carrying a concealed firearm. He told me that day that if he ever heard of me openly carrying again, even if he didn’t get the call, he would respond and seize my gun and leave it to me to petition a judge to get it back, which he assured me would not happen. Several months later I was detained and handcuffed for openly carrying on that same street and a Tacoma police sergeant told me he was allowed to detain anyone for any reason he saw fit. We threw together a BBQ for the following weekend with about a dozen open carry participants for that very spot, and none of us were contacted.

Remember the cop who told me he’d seize my gun? The Museum of Glass in downtown Tacoma called the police when they saw me openly carrying and that same officer responded. He began a much more polite conversation with me and I responded with, “Am I being detained?” He tried not to answer but his sergeant (a different one) called him out of earshot and told me I was free to leave.

Although I cannot reveal any of the details for legal reasons, I am aware of at least one open carry proponent that was detained and took the department responsible for a decently sized settlement.

We wrote our letters, politely objected when hassled, and had our public gatherings- and in the end prevailed. Today you can walk around even in the major cities with a handgun holstered on your belt and expect not to get any grief from the police. The benefits of the movement go beyond open carry because inadvertent exposure or printing are not illegal and there are now a lot of good citizens who are well aware of this fact.

So in short, if you want to make an omelet, expect to break a few eggs.

 

[rooter]

I highly encourage you to test the waters.

 

[PowerG]

I would guess I know the state in question also. There are a lot of armchair attorneys on the internet who talk a lot of crap, excuse my French, but simply reading the Mississippi Code bears out that a LEO could make a good faith arrest and most likely have it upheld by a judge. The entire passage is here:

http://www.mscode.com/free/statutes/45/009/0101.htm

Pay particular attention to this part:

"(18) Nothing in this section shall be construed to require or allow the registration, documentation or providing of serial numbers with regard to any firearm. Further, nothing in this section shall be construed to allow the open and unconcealed carrying of any deadly weapon as described in Section 97-37-1, Mississippi Code of 1972."

The section defining a "deadly weapon" is here (and includes pistols and revolvers):

http://www.mscode.com/free/statutes/97/037/0001.htm

 

[Sam1911]

PA and Philly comes to mind as being another minefield.

PA has preemption as well. Philly has sometimes tried to play games, but not quite these games.

 

[Sam1911]

Call the state police of the neighboring state.
Call a local police officer in a neighboring town and ask the same question.

Unfortunately, law enforcement officers are about the second-worst source of gun law information, close behind gun shop counter guys. They don't really deal with these sorts of questions often, and also unfortunately, often tell you whatever they think, regardless of whether they've ever read the law.

Perhaps call an attorney good in gun matters in that state.

Better. I'd try www.handgunlaw.us, and www.opencarry.org. They will have the legal citations that give you at least the black-letter version.

I know for a fact I would not "TEST" anything that pertains to guns, gun laws, enforcement of said laws, etc. I have a clean slate and intend to keep it that way.

Well, by that token, you may stay so far within the bounds that there is no reason to get out of bed in the morning!

Do your best to know the law, but don't invent boundaries in your own head that don't exist in the real world. "Better not, that sounds like it might be illegal somewhere..." is a terrible way to go through life.

I also live near a state that allows open carry. My state does not require anything for CCW, just the requirement that I am not a felon, have no convictions, am legal to own a gun and am legal to carry it -- all of which I am.

EVERY SINGLE time I go to the neighboring state, my gun and my ammo stays home, EVERY TIME!

Well OF COURSE! It would be illegal for you to do otherwise. That's not a grey area, or confusing somehow. You aren't "testing" the law if what you're doing is completely illegal.

As I stated, I have a clean record and intend to keep it that way!

I do carry a pepper sprayer rig in my truck, but I do not think that is considered the same as a gun.

Wait...you do not THINK that it is? Didn't you check? You may not have that clean record for long if you don't make the effort to find out.

 

[Sam1911]

I think you’re asking if the concealed carry permit from your state, honored in the other state, will allow open carry inside a holster because the other state considers a holster that covers any part of the gun to be concealed?

But even that question doesn't make sense, because a) the state allows open carry so if the officer decides he's open-carrying, he's in the clear; and b) he holds a permit that allows him to exercise the concealed-carry option, so if the officer thinks he's carrying concealed, he's in the clear.

I really don't see how there's a grey area, unless he suspects that the state has some kind of "between" designation where it's neither fish nor foul. I don't see that making a lick of sense.

 

[Sam1911]

...but simply reading the Mississippi Code bears out that a LEO could make a good faith arrest and most likely have it upheld by a judge.

So you are saying that Open Carry is NOT legal there, at all, for anyone. So his entire original premise is wrong?

That would make the confusion more clear.

If the state has A law against open carry, but then defines concealed carry as anything, including a holster, covering part of the gun, then there really IS NO "open" carry. ... again, so he should be fine.

 

[PowerG]

It's a convoluted issue, I'm not sure I can even state the problem clearly LOL. Years ago the test for carrying a concealed weapon (before any permit was allowed) was that the part of the weapon inside the holster made it concealed, because it was hidden from view ("concealed in whole or in part", that's the language that is confusing). If you hung the firearm by a string from your rear-view mirror, that part under the string was concealed, so it was concealed "in part", and thus illegal. So now many people are advocating that now that they have a permit allowing them to carry concealed "in whole or in part" they are allowed to carry openly, as the handgun is in part concealed. The law quoted above seems to explicitly state that this isn't the case. I would guess sooner or later this will be clarified, but as far as I know it has not as of yet.

 

[Sam1911]

I suspected that might be the case. They wanted to be able to "nail" as many people as possible for illegal concealed carry so they wrote a law that was absurdly broad. Then when folks could carry concealed easily and want to engage in what most of us would call "open carry," the state is defining the same term a different way to prevent that.

"Heads, I win. Tails, you lose."

 

[PowerG]

Well actually, only sorta...many people CCW'd while it was technically illegal, it was sort of an open secret. As long as you were otherwise law abiding, you most likely would just be warned it was illegal. Carrying in a vehicle was also illegal, and that law was very openly not enforced (as long as you weren't doing something else wrong), simply because a high percentage of the population did it irregardless of what the law said. The right to have a firearm for protection is pretty much universally accepted here, especially in the less populated areas, and always has been. That may be one problem with the confusion with the law presently, most LEO's support the 2A and would be very hesitant to arrest a law abiding citizen for carrying. I wouldn't try it in the larger towns, but out here in the country where I live open carry is a fairly common sight.

 

[Strykervet]

I’m not sure what you’re asking Owen. I think you’re asking if the concealed carry permit from your state, honored in the other state, will allow open carry inside a holster because the other state considers a holster that covers any part of the gun to be concealed?

I joined the open carry movement in Washington pretty early on. At that time it was just as legal as it is today but seriously frowned upon. Open carry back then would almost guarantee a hostile police encounter. I know this because I had more than a few, wore handcuffs several times, and was even arrested once.

The very first encounter I had in Tacoma had a very angry officer start his well-rehearsed inadvertent exposure lecture, only to be frustrated about mid-way through when I pointed out that I wasn’t carrying a concealed firearm. He told me that day that if he ever heard of me openly carrying again, even if he didn’t get the call, he would respond and seize my gun and leave it to me to petition a judge to get it back, which he assured me would not happen. Several months later I was detained and handcuffed for openly carrying on that same street and a Tacoma police sergeant told me he was allowed to detain anyone for any reason he saw fit. We threw together a BBQ for the following weekend with about a dozen open carry participants for that very spot, and none of us were contacted.

Remember the cop who told me he’d seize my gun? The Museum of Glass in downtown Tacoma called the police when they saw me openly carrying and that same officer responded. He began a much more polite conversation with me and I responded with, “Am I being detained?” He tried not to answer but his sergeant (a different one) called him out of earshot and told me I was free to leave.

Although I cannot reveal any of the details for legal reasons, I am aware of at least one open carry proponent that was detained and took the department responsible for a decently sized settlement.

We wrote our letters, politely objected when hassled, and had our public gatherings- and in the end prevailed. Today you can walk around even in the major cities with a handgun holstered on your belt and expect not to get any grief from the police. The benefits of the movement go beyond open carry because inadvertent exposure or printing are not illegal and there are now a lot of good citizens who are well aware of this fact.

So in short, if you want to make an omelet, expect to break a few eggs.

Yep, that is how it is here. Even in Seattle. This story is almost identical to the one at Starbucks down the street --they hassled the one guy, but didn't want to mess with the bunch that showed up. If they are afraid of getting shot, that is ridiculous, but I think they are very aware that messing with a group will garner a LOT more attention and it makes them think twice before giving their lecture and interpretation of the law --which is exactly what happened at that Starbucks.

I'd recommend a group for NOT starting a confrontation, but without that first confrontation, the group that follows doesn't get much attention. Like I said, they don't like messing with groups of armed individuals exercising their rights for whatever reasons, I can only guess. But if you want to do it right, make sure you are in compliance with the law (talk to a lawyer first) go out alone, if harassed, show up tomorrow with ten more.

 

[Double_J]

If you are going to carry in Mississippi, go ahead and get a permit. That way if you are arrested you have a solid leg to stand on with the case law as it is written. I have read the judges opinion, and it states that the firearm is almost always concealed, even if by just a leather thong. Make them arrest you and bring it to court today, and we can put this to rest once and for all. Does the law read licensed open carry, or is it only true "concealed" carry.

When I return home to visit I have no problem carrying open, and my family lives in the second largest city in the state. If anyone lives in the south Mississippi area let me know and when I get home I will gladly meet up with you. We can change the law IF enough of us stand together and fight, we just need to be willing to stand together. It was put best by one of the founding fathers: "We must all hang together or for sure we will all hang separately."

 

[Bobson]

If Owen weren't such a regular poster here, I'd think this was a troll thread.

I am tempted to test this but I really would rather avoid potential arrest and expensive legal fees that would be required in order to get it before the state Supreme Court.

I learned a long time ago that testing the waters is for fools. You ought to know the difference between right and wrong. Don't go looking for trouble. Evidently, from what you wrote here, you already knew that. I'm not sure why you bothered asking.

 

[Jim K]

There is no way you can "test" the law without breaking it, and there is no way you can be sure you won't be arrested if you break the law. Clear?

Now, if you set up to test the law, you can try setting things up in advance with the police knowing about it and knowing you are not a threat in any way. This is best done accompanied by your attorney who will advise you how to act and what to say if/when you are arrested.

Remember two important things.

First, challenging a law that way will cost money, lots of it, and the state has more money than you do. Even if some officials privately agree with you, they will fight you every step of the way, through every court, because that is their job.

Second, even if an arrest is arranged and friendly, it is still an arrest. Even if a conviction is accepted in order to appeal, it is still a conviction. So, if you apply for a job that requires a security clearance, or requires that you be bonded, that arrest and conviction will show on your record and it is unlikely that a prospective employer will ask you for particulars when it will be easier just to pass you up. What are you going to say? Discrimination against a convicted felon? That probably won't even fly with the ACLU.

A much sounder approach is to sound out candidates for the legislature and governor. Talk to them and if they make the right noises, contribute to their political campaigns. Enlist others to do the same. If you can get, say, a half dozen members of the legislature interested in the issue, you have a good shot at getting the law changed, especially if it is confusing and can be billed as making things easier for law enforcement.

Good luck.

Jim

 

[brickeyee]

PA has preemption as well. Philly has sometimes tried to play games, but not quite these games.

Except PA has laws that affect carry and permit validity in certain size cities IIRC. Like Philly.

 

[Sam1911]

Except PA has laws that affect carry and permit validity in certain size cities IIRC. Like Philly.

Nope! The only one is that if you want to open carry in the Philly city limits, you have to hold an LCTF.

(Philly is the only "city of the first class" and so, the only one which can have that rule.)

No other cities, towns, townships, or counties in the state may make firearms rules of their own.

 

[Birch Knoll]

Owen, why so quiet?

 

[BBQLS1]

Hello,
I am a long time lurker, first time poster here. I think I know of what state you are speaking of. (Mississippi possibly) I just moved from there after living there most all of my 31 years. You can "carry concealed in part" or as we mere mortals would call it open carry if you have a permit. I have open carried quite a few times on my MS firearms permit. I would not try to carry without one, except in a vehicle or at a range/hunting/fishing. The state police will tell you to "get a permit" if you ask. The Attorney General will REFUSE to answer ANY questions you might have as he works for the state, and not you. I would suggest contacting an attorney and seeing what he can do for you. I do have an attorney friend in the state, but I don't know how familiar he is with firearms laws, he does mainly business law. Let me know if you want his name and number.

What are you talking about? I grew up in the state and live in Louisiana now. I visit MS pretty often as I have family there.

MS is pretty hazy on open carry to the point where it's pretty much not legal unless you are hunting or participating in a similar activity. CC is legal with a permit.