A Win For Carry In The 9th Circuit

I know you are probably saying, "what the hell? The 9th Circuit?" It is true. Today the 9th Circuit issued its opinion in Young v. State of Hawaii. The 2-1 decision found that the Second Amendment does protect the right to openly carry a firearm in public for self-defense. You will remember in Peruta v. San Diego that the 9th Circuit ruling en banc said there was no constitutional right to carry concealed in public and that the Supreme Court refused to grant certiorari on appeal.

From Reuters:

The ruling issued by a three-judge panel on the 9th U.S. Circuit Court of Appeals, based in San Francisco, came a year after the U.S. Supreme Court declined to rule either way on the carrying of guns in public.

Two of the three 9th Circuit judges voted to reverse a decision by the U.S. District Court in Hawaii that state officials did not infringe on the rights of George Young, the plaintiff, in twice denying him a permit to carry a gun outside.

“We do not take lightly the problem of gun violence,” Judge Diarmuid O’Scannlain wrote in Tuesday’s ruling. “But, for better or for worse, the Second Amendment does protect a right to carry a firearm in public for self-defense.”

 I would be extremely surprised if this decision does not go to an en banc hearing in the 9th Circuit.

I have not had time to read the whole decision but you can read it here.

Florida Carry Is On The Case

Open carry is generally not legal in Florida. However, it is allowed when you are hunting or fishing. The Tampa PD seems not to have gotten that message. George Freeman, as you can read below, was fishing on a city pier when he was detained and then ultimately banned from a city pier while open carrying.

While I personally prefer concealed carry, I do so in a state where unlicensed open carry has been the rule since the early 1920s thanks to a NC Supreme Court ruling. I believe open carry should be legal because, at the very least, concealed carry holders need protection when inadvertently exposing their firearm.

Florida Carry files lawsuit against Tampa for violations of members' rights and Florida law.

Tampa went too far. Our member, George Freeman was NOT breaking any law but he was detained for over an hour, disarmed, searched, and ultimately banned from a Tampa city pier and all city parks for exercising his Second Amendment Right to Bear Arms. The fact that a person is peacefully exercising their right to bear arms is not cause for police officers to attack, detain, search, and trespass a citizen who is a law-abiding gun owner. To insure that this does not happen again, our lawyers are coming fishing with us at the next regularly scheduled Florida Carry Fishing Meetup, on Saturday, July 11th - 10am Ballast Point Pier in Tampa. Information and directions can be found by clicking HERE. We have also filed a lawsuit to defend the right to bear arms, our members, and your rights.  You can read about the case by clicking HERE. We are raising funds to support the lawsuit.  please read more and consider contributing to your fellow gun owner's case at: https://www.gofundme.com/DefendingRKBA

Open Carry Fishing

We often have to go to the courts to demand our rights. You can keep up to date on our court cases at: https://www.floridacarry.org/litigation

Obviously Emblematic Of Gun Control's Sagging Support

I know they say "Keep Austin Weird" but even this is weird by Austin standards.

Earlier this afternoon, CATI (Come and Take It) conducted a walk through downtown Austin to raise awareness for the current restrictions on gun rights in Texas. This walk is done monthly, and today’s walk was led by Thomas Jefferson from their Austin Chapter. Anti-gun protestors decided to arrive though, and they conducted their protest TOPLESS!

While being topless and exposing one's boobs in public is legal in Austin, it does seem a strange way to protest against gun rights. Having seen the pictures of the protesters, I'd say it is emblematic of gun control's sagging support (pun fully intended).

Pictures of the counter-protesters can be seen here but you are on your own for eye bleach.

What Do McDonalds And Dunkin Donuts Have To Say About Carry In Their Stores?

Howard Schultz's letter requesting that customers refrain from carrying their lawfully owned firearms in Starbucks hit a nerve last week. It not only unleashed a tsunami of criticism from gun owners but it caused a number of introspective posts from gun bloggers regarding open carry. The tactics of some open carry activists were especially subject to criticism.

 All of this controversy led to questions about Starbucks's competitors and their policies. Business Insider, a business website, reached out to both McDonalds and Dunkin Donuts to find out their policies.

In essence, they will abide by the local and state laws where their stores are located.

Here's a statement from McDonald's spokeswoman Lisa McComb:

“We recognize that there is a lot of emotion and passion surrounding the issue of firearms and open carry weapons laws.

While we respect the differing views of all our customers, McDonald’s company-owned restaurants follow local, state and federal laws as it relates to open carry weapons in our restaurants.

For franchisee-owned restaurants, operational decisions regarding open carry weapon laws are made by the independent franchisee.

That said, as with all aspects of operating a McDonald’s restaurant, we expect our franchisees and their crew to follow local, state and federal laws.”

And Dunkin' Donuts spokeswoman Michelle King:

"Dunkin’ Donuts and Baskin-Robbins restaurants are owned and operated by individual franchisees who are required to follow all federal, state and local laws with regard to firearms."

While North Carolina has had open carry since 1921, I would hope that open carry activists would use some discretion. It is one thing to have a revolver or pistol on your hip; it is entirely another thing to carry an AR or shotgun on a sling. Let's face it, when the average gun owner open carries, it is a handgun unless they are out in the woods.

So Freaked Out By Open Carry That He Gets Arrested

I'm neither a proponent nor opponent of open carry. I don't tend to do it because I want to keep the bad guys guessing. That said, if you want to open carry that is your option. If you do, I promise I won't be like Robert Gursky of Glastonbury, Connecticut.

According to this story in the Hartford Courant, Mr. Gursky was so freaked out by a gentleman legally open carrying at his local bank that he slid the teller a note that said "gun". The teller did what he or she was trained to do - they hit the silent bank robbery alarm.

Mr. Gursky was arrested for breach of peace and has to appear in court next week. And the man open carrying? He was interviewed by the cops who determined that he possessed his firearm legally and that was that.

There is something to be said for poetic justice.




H/T BearingArms.com

Win For Open Carry In Mississippi

The Mississippi Supreme Court overturned Hinds County Circuit Court Judge Winston Kidd's injunction against House Bill 2 today. HB 2 defined what constituted concealed for the purposes of concealed carry. By defining concealed, the bill clarified that open carry is permitted under the Mississippi State Constitution.

Judge Kidd had found HB 2 to be "unconstitutionally vague" back in July and had issued a permanent injunction against the law. The parties seeking the injunction included Hinds County DA Robert Shuler Smith, Hinds County Sheriff Tyrone Lewis, and St. Senator John Horhn (D-Jackson). Backers of the the lawsuit included the Southern Poverty Law Center who helped draft the briefs.

In their 9-0 decision, the Mississippi Supreme Court found that Judge Kidd had erred as a matter of law.

This Court now finds that the Circuit Judge erred as a matter of law when he found House Bill 2 to be vague and, therefore, unconstitutional. He also erred when he stated that "a reasonable person reading the bill could not discern what the law allows and what it prohibits." Therefore, the Petition for Interlocutory Appeal is granted and rendered, and the Order Granting Plaintiffs' Motion for Injunctive Relief is vacated.

The Court also assessed the cost of the appeal to the Appellees.

Mississippi politicians were quick to praise the Supreme Court's decision on open carry.

Gov. Phil Bryant (R-MS) released this statement:

JACKSON—The Mississippi Supreme Court today ruled 9-0 that House Bill 2, which clarifies the definition of “concealed” for purposes of Mississippi laws regarding the concealed carrying of firearms, is valid and constitutional. The court also vacated the injunction that a Hinds County judge had issued against the bill. As a result, it is now clear that House Bill 2 can take effect statewide.

“House Bill 2 is an important clarification of citizens’ right to keep and bear arms under the state and federal Constitutions. I am very pleased that the court has agreed that House Bill 2 is consistent with the Constitution so that law will now take effect statewide.”

Lt. Gov. Tate Reeves (R-MS) issued a briefer statement praising the decision:

“I’m proud the Supreme Court confirmed our goal of protecting our right to bear arms. Today’s ruling is a win for our Constitution and a win for every Mississippian.”

Rep. Andy Gipson (R-Braxton), author of HB 2, said he knew his bill was constitutional and was happy that the Court agreed.

“When the lawsuit was first filed, I said I never seen a lawsuit filed over the constitutionality of a law in the Constitution,” Gipson said.

Gipson has said "If you carry a weapon concealed, you need a concealed carry permit. Otherwise, the Constitution of 1890 guarantees each citizen the right to keep and bear arms to defend himself/herself. No change to the constitution here; just defining concealed for the first time. Until now, individual law enforcement or courts could fabricate a definition which resulted in an illogical infringement on constitutional rights."

The statement from Secretary of State Delbert Hoseman (R-MS) noted he was a NRA Life Member and he was pleased the Supreme Court "has protected this fundamental right."

Of course, the plaintiffs who brought the case were none too happy. St. Sen. John Horhn (D-Jackson) plans to introduce legislation to require permits for both open and concealed carry. He has also called on Jackson and Hinds County leaders to ban open carry. It should be noted that Sen. Horhn, like every other member of the Mississippi legislature, voted for HB 2.

There is no word of any public reaction from Hinds County DA Robert Shuler Smith or his attorney Lisa Ross.

Permanent Injunction Issued Against Mississippi Law On Open Carry

Hinds County Circuit Court Judge Winston Kidd issued a permanent injunction against Mississippi HB 2 calling it "unconstitutionally vague." He ordered that it can't take effect until such time as the Mississippi Legislature "reviews, amends, or clarifies" HB 2 so as to accomplish its intended purpose.

found no case law, or any other authority, which gives an individual the absolute right to "open carry" a weapon, as contended by the state.". Judge Kidd further said "when the legislature creates laws which are vague, confusing, and overbroad, then it is the responsibility of hte court to make a determination as to the law's constitutionality.... House Bill 2 is unconstitutional...

House Bill 2 does more than define "concealed." It creates confusion and chaos with respect to the enforcement of gun laws here in this state. House bill 2 does not clearly set forth "who is allowed to openly carry a weapon in a holster. Certainly our legislature did not mean to allow anyone and everyone to openly carry a weapon in a holster. Next, House Bill 2 does notn state "where" an individual can openly carry a weapon in a holster. If this law goes into effect, individuals will attempt to openly carry weapons anywhere and everywhere. This can not possibly be the intent of our legislature...."

The full decision can be found here.

Mississippi House Judiciary Chairman Andy Gipson (R-Braxton), who was the author of the bill, fully expects Kidd's ruling to be appealed by the State of Mississippi to the Mississippi Supreme Court. He has also gotten confirmation that the National Rifle Association intends to file an amicus brief in support of the state's case.

In comments to the Clarion-Ledger, Gipson said:

“They (NRA) do see this as a matter of constitutional gun rights being threatened,” Gipson said.

Gipson said he was not surprised by the judge’s ruling, and believes the case will head post-haste to the state Supreme Court.

“(Kidd) just continued what he did with the temporary restraining order, and I am confident we will be appealing, the state will appeal, to the Supreme Court,” Gipson said. “I just think the judge got it wrong. Anybody who reads House Bill 2 can clearly see the legislation is clear and that the Legislature has the right to regulate concealed carry.

Attorney General Jim Hood (D-MS) released a written statement this afternoon indicating that he will be appealing the ruling after he has had time to study it.

"We are in the process of reviewing the Judge's order," said Hood in a written statement. "At this stage, we are likely to ask the Mississippi Supreme Court to take a look at this case. We have 21 days to do so, but it will be up to the Court as to whether and when they do. It remains the duty of this office to defend our State laws and their constitutionality."

More comments from both sides and some courtroom footage can be in seen in the video report below from WLBT-Channel 3/Fox 40 in Jackson.

MSNewsNow.com - Jackson, MS

Open Carry In Mississippi Still On Hold

Judge Winston Kidd extended his Temporary Restraining Order against HB 2 until Friday according to "Jackson Jambalaya" who attended the proceedings this afternoon. The state argues that HB 2 only clarified the definition of concealed and that open carry is allowed under the MS Constitution of 1891.

Court extends tro until Friday, July 12. Kidd says cause exists for the tro.
— Jackson Jambalaya (@Kingfish1935) July 8, 2013

Rep. Andy Gipson (R-Rankin) who authored HB 2 released this statement earlier today before the beginning of the hearing.

"The Amended Complaint filed with the Hinds County Circuit Court on July 1, 2013 alleges that House Bill 2 (which defined the term "concealed") is unconstitutional on three grounds:

1) "Unconstitutionally vague." House Bill 2 defined concealed as: "hidden or obscured from common observation." Moreover, examples are given as to what is not concealed such as carried in a holster open to common observation. HOW IS THIS VAGUE TO ANY COMMON SENSE PERSON???

2) "Overbroad." House Bill 2 narrowly defined the word "concealed" to ascribe to it a meaning that can be understood by most people. If you can seesomeon has a gun, it's not "concealed." If you can't see a gun, it is "concealed." IF ANYTHING THE LEGISLATURE GAVE THE TERM "CONCEALED" A NARROW DEFINITION, NOT A BROAD DEFINITION. HOW CAN THIS BE UNCONSTITUTIONAL???

3) "Arbitrary and Capricious." This is where it gets most interesting. The complaint alleges that the definition "is arbitrary and capricious in excusing persons who wish to openly-carry firearms from the license requirements imposed on persons who wish to carry concealed firearms." TRANSLATION: HINDS COUNTY OFFICIALS WANT TO REQUIRE GUN LICENSING AND REGISTRATION OF ALL GUNS BEING CARRIED BY MISSISSIPPIANS. THIS IS THE SAME LINE OF THINKING BEING PUSHED IN WASHINGTON D.C. AND NEW YORK CITY, RIGHT HERE IN OUR OWN BACKYARD."

UPDATE: MS Assistant Attorney General Harold Pizzetta who argued the state's case before Hinds County Circuit Court Judge Winston Kidd had this clarification about the impact of Judge Kidd's order.

Pizzetta said Kidd’s order applies to the entire state since it prevents the state from going forward with the law. That had some confusion whether Kidd’s earlier ruling applied to just Hinds County or the entire state.

More On The Open Carry Fiasco In Mississippi

The attempt to stop HB 2 - the Mississippi law that defines "concealed" - from coming into effect is looking more and more like a fiasco. By defining concealed, HB 2 clarifies open carry as allowed under the Mississippi Constitution.

A case in point. One of the named plaintiffs, Hinds County District 4 Constable Jon Lewis, says his name was added to the initial complaint without his permission or consent.

From Y'All Politics:

Representative Andy Gipson sent me a text yesterday at 1:00 stating there would would be a press conference about HB2 at 1:30. I decided to attend and show my support for the legislation. After the news conference WAPT's Erin Kelly asked me about my position on the issue. I told her I supported HB2. She asked if I were a party to the suit and I told her no but other Constables were. She said my name was on it. I discovered to my surprise indeed it was.

I angrily called attorney Lisa Ross' office and asked for her to call me (she is the Attorney who filed and signed the case). A few minutes later she called and told me she had my name removed and it was a mistake. I told her "Great, but the damage has been done." along with a few other choice words. I asked her why she did this and she said my name was on a list. I asked her "what attorney takes on a client without his written permission." She again said it was her mistake and she removed from the case. I consider this lawyering at its worst. I promptly went the Mississippi Bar Association and picked up 3 complaint forms for each attorney involved.

 You would think that a lawyer who had been in practice for 19 years and who had gone to a top 50 law school (University of California Hastings College of Law) wouldn't be making such amateur mistakes. I guess in her case that ideology has gotten in the way of good legal practice.


Dave Hardy at Of Arms and the Law blog posted about the case yesterday. He considers their temporary restraining order as "bunk" and then proceeds to pick apart their whole initial motion for a TRO. He concludes with this.

Who drafted this pile of offal? Can officers of a county (which is generally a subdivision of the State) sue the State? Isn't that a little like the City Planner suing the city because he doesn't like the zoning plan?

If attorney Lisa Ross who drafted both the initial motion and the response to the Mississippi Supreme Court is considered the best legal draftsperson of the legal team involved, then what does that say about District Attorney Robert Shuler Smith and Southern Poverty Law Center attorney Jody Owens?

Nonetheless, a three judge panel of the Mississippi Supreme Court yesterday declined to stay the Temporary Restraining Order issued by Hinds County Circuit Court Judge Winston Kidd. Their order said they were denying the state's request on procedural grounds and expressed "no opinion respecting the merits of the matter pending before the circuit court."

Judge Kidd will be holding a hearing on the case on Monday, July 8th. It is still expected that the case will eventually be appealed one way or another to the Mississippi Supreme Court.

About That Open Carry Law Fiasco In Mississippi

The State of Mississippi passed a law in March clarifying the law regarding open carry in that state. It was to go in effect today. Late Friday afternoon, the District Attorney for Hinds County (Jackson) and an attorney for the Southern Poverty Law Center found a judge who would grant a temporary injunction against the law. As David Codrea noted on Saturday, Judge Winston Kidd bypassed the normal checks and balances.

In an unabashed feat of judicial and linguistic contortion, Kidd ruled that specific language is “vague,” and justified his injunction on the grounds that allowing the bill to take effect would cause “irreparable harm.” That’s consistent with what opponents of the bill, who lost their fight to kill it in the legislature, are promulgating.

Jeff Pittman, a gun rights advocate in Mississippi, had this to say in his 2A Newsletter which I've reprinted with Jeff's permission.

House Bill 2 rationally defines concealed weapons as those not readily visible, and unconcealed weapons as those readily visible. The effect of the law is that open carry will be generally legal without a permit, as the Mississippi constitution provides. The only reason folks haven't been able to open carry in the past is the erroneous definition of "concealed" in current law and case law, which refers to "concealed in whole or in part." The constitution says nothing about concealed "in part."

In what can only be described as a sneak attack, late Friday afternoon just before the courts closed for the last time before the law took effect, a lawsuit was filed seeking an emergency injunction against the law's taking effect on Monday morning (today).

The lawsuit was brought by Hinds County District Attorney Robert Shuler Smith, Hinds County Sheriff Tyrone Lewis and state Sen. John Horhn (D-Jackson) among others. Those ELECTED officials will be remembered in the future.

The plaintiffs apparently went judge shopping and found a winner in Hinds County Circuit Judge Winston Kidd (another ELECTED official), who agreed the law was ambiguous or vague and a restraining order was "necessary to prevent immediate, irreparable harm." Kidd issued a temporary injunction in the emergency hearing sometime after 4:30 Friday afternoon.

What the alleged ambiguity or harm is was not clear. What the emergency was to block a law that was passed months ago was also unclear.

Not being an attorney, I was unaware that a county judge could block a state law. What if another county judge blocks the original concealed carry prohibition law?

The temporary restraining order reportedly will last until July 8, when Kidd has scheduled a hearing on the merits of an injunction to block the law.

Look for this to move to a competent court.

Both Horhn and another plaintiff said they don't believe the constitution provides for open carry. But Article 3, Section 12 of the MS Constitution reads:

"Right to bear arms.
The right of every citizen to keep and bear arms in defense of his home, person, or property, or in aid of the civil power when thereto legally summoned, shall not be called in question, but the legislature may regulate or forbid carrying concealed weapons."

Jody Owens, an attorney for the Southern Poverty Law Center (a well-known liberal hate group), represented DA Smith, and spun a bizarre story for the press, saying "The plaintiffs are trying to stop mayhem. We're looking at a wild, wild west scenario."

Arguing for the state, assistant attorney general Harold Pizzetta said that open carry is already protected by the state's constitution, because it isn't mentioned in a section that gives the Legislature the right to regulate concealed carry (see above).

Once the new law takes effect, there will still be a lot of problems due to erroneous efforts to circumvent it. Agencies and local governments statewide are falling all over themselves to try to ban legal guns from all government buildings by passing policies and posting signs, apparently little of which is supported by statute. Keep in mind that we also have a preemption law prohibiting such activities by cities and counties. Mississippi Code section 45-9-51 reads "Subject to the provisions of Section 45-9-53, no county or municipality may adopt any ordinance that restricts or requires the possession, transportation, sale, transfer or ownership of firearms or ammunition or their components."

Mississippi Attorney General Jim Hood filed a combined petition to vacate a restraining order and emergency petition for interlocutory appeal with the Supreme Court of Mississippi today. Jeff Pittman notes in a later email that Hood has never been a "particularly strong proponent of gun rights, and this case is likely more of a turf war than a battle of philosophies." I think Jeff may be quite correct on this last point if this part of the petition is any indication.

From the Gun Rights Examiner:

“[T]he Motion incorrectly declares that District Attorney [Robert Schuler] Smith is bringing this matter in his capacity as ‘the chief legal officer of the State of Mississippi,” the petition documents in an ironic comment about lack of standing that illustrates a presumption of non-existent authority and questionable legal competence on the part of both the DA and the Southern Poverty Law Center attorney backing the power grab.

“A district attorney is prohibited from bringing any suit the subject matter or impact of which would be statewide because only the Attorney General may bring such a suit of statewide importance,” the petition reminds the Court.

The Supreme Court has given Hinds County DA Robert Smith and the rest of the respondents until 5pm this afternoon to file their response.

I would not be surprised to the injunction vacated sometime tomorrow on standing grounds alone. I'll post more as it becomes available.

UPDATE: Checking the docket of this case on the Mississippi Supreme Court's website, it appears that the respondents/plaintiffs did submit their response by the end of the business day on Monday. Unfortunately, I'm not able to download their response to read it.

UPDATE II: Thanks to Jeff Pittman (see comments) we have the response by the gun prohibitionists. It can be found here.

Open Carry In North Carolina

The topic of open carry made the Off The Record blog of the Greensboro News-Record on Tuesday. It isn't often that you see a reasonable discussion of open carry in a newspaper without it being connected to some crime. In this case, it was an article by Jeff Welty of UNC's School of Government in their North Carolina Criminal Law blog that led to the posting about open carry.

As to the question of whether you as a law-abiding citizen can legally carry openly in North Carolina, the answer is generally yes. That is thanks to a 1921 case decided by the North Carolina Supreme Court.

From the Off The Record blog:

The case originated in Kernersville, where its central figure, Orah W. Kerner, was a member of the namesake family. He was “president of American Hosiery Mills, senior member of the firm of Kerner Brothers, and a large tobacco planter,” according to his 1923 obituary.

According to the Supreme Court, Kerner “was walking along the streets of the town of Kernersville in Forsyth County carrying some packages, when he was accosted, for the purpose of engaging him in a fight, by one Matthews; that in the course of this altercation he set down his packages and went to his place of business and there procured a pistol, which he brought back with him unconcealed to the scene of the altercation. Sec. 3, ch. 317, Public-Local Laws 1919, prohibits the carrying of such weapons off his own premises by any one in Forsyth without a permit, even though it was not concealed. The court, being of the opinion that this statute was in conflict with the constitutional provision that “the right to bear arms shall not be infringed,” directed a verdict of not guilty, and the State appealed.”

The Supreme Court affirmed the trial court verdict, noting the distinction between the right to keep and bear arms and the right to carry concealed weapons.

“The former is a sacred right, based upon the experience of the ages in order that the people may be accustomed to bear arms and ready to use them for the protection of their liberties or their country when occasion serves. The provision against carrying them concealed was to prevent assassinations or advantages taken by the lawless, i. e., against the abuse of the privilege.”

Open carry in North Carolina is not without constraints. One of the more common issues that comes up is what is called "going armed to the terror of the people." Professor Welty notes that it comes up when someone is intentionally trying to scare or terrorize others but "a person doesn’t commit this offense by carrying a weapon in a non-threatening and orderly manner, such as going about one’s daily business with a handgun in a hip holster."

Professor Welty says that local government can regulate, to some extent, open carry in North Carolina. For example, they could prohibit open carry in public buildings and their parking lots. However, while NC GS 160A-189 and NC GS 153A-129 allows cities and counties to regulate the display of firearms on sidewalks, streets, and other public property, Professor Welty does not believe that they could use these laws to ban open carry.

But reading the power to “regulate the display of firearms” to allow local governments to ban open carry in public is probably wrong for two reasons. First, it would be unconstitutional under Kerner. As the court noted, “[t]o exclude all pistols, however, is not a regulation, but a prohibition, of arms which come under the designation of ‘arms’ which the people are entitled to bear.” Second, such a reading ignores the fact that both statutes allow local governments to “regulate . . . or prohibit” the discharge of firearms, but only to “regulate” the display of firearms. The lack of parallelism appears to be intentional. Therefore, although the precise extent of local government authority isn’t clear, and a variety of local regulations might be permissible, a complete ban on public open carry does not appear to be.

Given that Professor Welty works for the School of Government which has as part of its mission to educate local governments on the law, there is hope that this information will filter down to local law enforcement agencies.



H/T Ken Soderstrom

HB 2756 - Texas Open Carry Bill

Aaron Spuler of the Weapon-Blog is asking for help. If you live in Texas and want open carry, now is the time to act.

From Aaron:

We're running out of time to get Texas HB 2756 (Open Carry) passed this legislative session. The last day to get a vote on this one is Thursday. If we miss this opportunity, we won't have another opportunity until 2013 (the Texas legislature only meets once every two years).

He has details on his blog here on what you need to do.

"It Was Disturbing"

"It was disturbing" was one of the comments regarding a group of Open Carry proponents in Pasadena protesting attempts to ban open carry in California.

A Brady Campaign spokeswoman agreed.

"I believe the open carry movement is very intimidating," said Suzanne Verge of the Brady Campaign to Prevent Gun Violence. "I think as a citizen I should be able to go along Colorado Boulevard and shop where I want to shop and not have to worry about running into somebody with a loaded weapon."

Substitute "Negro" for "loaded weapon" and I'm sure that either of those comments could have been also said by certain white people in Birmingham about seeing Rosa Parks sitting in the front - as opposed to the back - of the bus.

One of the major reasons Judge Irma Gonzalez gave for dismissing the challenge to California's requirement to show good cause for a concealed carry permit was that California allowed unloaded open carry along with loaded open carry in certain rural areas. Because the state did provide that alternative, the good cause requirement passed constitutional muster.

You have to wonder which the gun prohibitionists fear most: unloaded open carry or shall issue concealed carry.


H/T Brandon Combs

As Seen On TV

Robb Allen of Sharp as a Marble blog is interviewed by ABC Action News in Tampa about his support for a change in Florida law that would allow open carry. Despite his claim to have a face made for radio, I think he acquits himself and open carry just fine.

Congratulations Robb!

Wisconsin City Pays $7500 To Woman Arrested For Legal Open Carry

Back in October, I reported on the case of Krysta Sutterfield who was arrested at gun point after wearing her pistol to the Unitarian Universalist Church of Brookfield. She was arrested for illegally transporting a firearm despite having her pistol in a zipped case and not on her body. Afterwards, the district attorney declined to prosecute because the officers had no probable cause to stop her and search her car and the charges were dropped.

Ms. Sutterfield and Wisconsin Carry filed a lawsuit in U.S. District Court for the Eastern District of Wisconsin charging her 14th Amendment rights had been violated.

This week the lawsuit was settled with the City of Brookfield paying $7,500 according to a story in the Milwaukee Journal Sentinel and court filings. The city made the offer on December 20th and gave the plaintiffs 14 days in which to accept the offer. The plaintiffs accepted it that same day and judgment was entered on December 30th. The heart of the offer was:

a joint offer to allow judgment to be taken against them in the above referenced action in the total amount of $7,500.00, inclusive of costs and attorney’s fees. This offer is intended to resolve all claims, state and federal, arising from the incident which forms the basis for all claims by Wisconsin Carry, Inc. and Krysta Sutterfield against the above defendants. It must be accepted by both Wisconsin Carry, Inc. and Krysta Sutterfield in order for there to be a valid acceptance. This offer is not an admission of liability on behalf of these defendants, and should not be construed as such.

Despite the settlement, it does not appear that the City of Brookfield won't make a similar mistake in the future if the comments of  Greg Gunta, an attorney for the city, are to be believed.

An attorney for the city said police will still always respond in force to calls of a person with a gun, and if turns out to be an open carry situation, that's just the cost of doing business.

"These are kind of 'gotcha' cases," said the attorney, Greg Gunta. "The courts are being used for a political stage."

Mr. Gunta went on to suggest that if the plaintiffs really brought this case based on principle they should give the money back to the City of Brookfield for "gun education." To think that a city whose police force was so ready to violate the Second and Fourteenth Amendment rights of it citizens could conduct "gun education" is laughable. Whatever use Ms. Sutterfield and Wisconsin Carry find for the money I'm sure will be better than that offered by Mr. Gunta.

Obstructionists

It appears that some law enforcement officials in central Iowa are not too happy with the new "shall-issue" carry permits. Huxley Chief of Police Mark Pote sent a letter to local businesses last month advising them to post large signs saying no guns were allowed. In an on-camera interview with reporter Aaron Brilbeck of WHO-TV, he backtracked a bit.

 

One wonders if the phrase "with all deliberate speed" means anything to him.

Sean McClanahan of the Iowa Firearms Coalition called it what it was - scare tactics. Sean's Des Moines Gun Rights Examiner column has more example of these tactics throughout Iowa.

H/T NRA News

Second Amendment Is Alive In Iowa

Yesterday was the first day that residents of Iowa could apply for carry permits under the new "shall-issue" system - and thousands of them did. Under the old system, it was at the discretion of the local sheriff if a person was granted a carry permit and the firearm had to be carried concealed. This led to situations like in Osceola County where Sheriff Douglas Weber denied the carry permit for Paul Dorr because he thought he was "weird".



The cost for the permit is a reasonable $55 for five years.

Of course, there are some that aren't happy with the new law. I hate to pick on librarians as my Mom was a school librarian for many years. And, of course, there is everyone's favorite reference librarian Breda as well. However, some Iowa librarians seem to be in a snit over the new law.

Dee Crowner, director of the North Liberty Community Library, told LJ the city administration there has been working on the issue and that the library would abide by whatever policy the city chooses. However, she said the new law "scares the bejesus out of me."

"Our library is in a community center that houses the recreation center, the aquatic center, the telecommunications department, and the library," she said. "You can imagine how busy we are with people of all ages.... Why would anyone want to carry a gun in plain sight in a public place? For the power, to scare people, for the rush?"

H/T Mark Vanderberg

Another Wisconsin Open Carry Lawsuit

Wisconsin Carry and attorney John Monroe have been busy beavers. Or is that badgers.

Little more than a week after they sued the City of Madison and Chief Noble Wray, they are suing the City of Brookfield (Wisconsin) and four Brookfield Police Department officers in U.S. District Court for the Eastern District of Wisconsin. The city and officers stand accused of violating the civil rights of Krysta Sutterfield by performing an illegal search and seizure among other things.

Ms. Sutterfield was attending services at the Unitarian Universalist Church of Brookfield on July 4th of this year. After church services ended, a church member called the non-emergency number of the Brookfield Police Department and asked whether it was legal to open carry. The BPD responded by sending several officers and cars to the church. The caller pointed out Ms. Sutterfield to one of the officers as she was driving out of the church parking lot.

According to the complaint, one of the officers stopped Ms. Sutterfield's car and drew his weapon. Another officer then appeared on the scene and also drew his weapon. She was ordered out of the car, handcuffed, and then her car was searched without her permission. One of the officers found Ms. Sutterfield's handgun in the car enclosed in a securely zippered case. They then placed her under arrest for "illegally transporting a firearm." However, the prior April the Brookfield PD had circulated a memo from the Chief of Police informing all officers that illegal transport of a firearm was not an arrestable offense in the State of Wisconsin. Ms. Sutterfield was taken to the Brookfield Police Department where she was questioned, booked, and then released.

The local district attorney declined to prosecute the case because he determined:

that the Defendents had no probable cause to stop Sutterfield and to search her car, as no criminal acts had been reported to Defendents at the time of the stop and search.

The Brookfield Police Department still maintains a record of Ms. Sutterfield's arrest which is also an item of contention in the lawsuit.

The Defendents are accused of violating Sutterfield's 14th Amendment rights to be free from unreasonable searches and seizures, her 14th Amendment rights to due process, of using an unreasonable amount of force, and by harrassing her for open carry they infringed her rights to keep and bear arms. The Court is being asked for an injunction prohibiting the individual police officers from "detaining, searching, or arresting" individuals who are lawfully open carrying. Another injunction is being requested to expunge the record of Ms. Satterfield's arrest. Finally, the plaintiffs are asking for a declaration stating that "openly carrying firearms, without more, is not a criminal act."

Ms. Sutterfield had been the victim of violent crime in the past and this is why she now open carrys. To be frank, you don't often hear the words Unitarian and open carry in the same sentence. Indeed the church has passed resolutions calling for more gun control.

This case is very similar to the California case of Wolanyk v. San Diego which was discussed in an earlier post. I wouldn't be surprised if an out-of-court settlement isn't also reached in this case.

H/T SayUncle

Open Carry Lawsuit in Wisconsin

On Saturday, September 18th, five members of Wisconsin Carry met and ate at a Culver's (mid-west burger chain) in Madison, Wisconsin. According to the story in the Wisconsin State Journal:

Eight officers came to the restaurant and demanded identification from the five men, Gold said, adding that when two of them refused, they were handcuffed, disarmed and searched for identification, then given municipal citations for obstruction and released. Wisconsin Carry won a $10,000 settlement for a Racine man in a similar situation.

Two days later, the charges for obstruction were dropped against the two members who refused to provide identification. The Madison Police Department then filed disorderly conduct charges against all five of the Wisconsin Carry members. According to the press release from the MPD:

The complainant's statement clearly reveals that she recognized the potential for violence from these armed men, and it was this fear that motivated her call to police. On the basis of this fact, the MPD will be rescinding the 2 obstructing citations. They were issued in error. Instead, citations for City Ordinance DC will be given to those who engaged in the behavior that led to the need for police to be called.

The DC statute does not require an actual disturbance take place, only that conduct in question is of a type that tends to cause or provoke a disturbance.

 However, there is some dispute as to whether the "complainant" felt threatened or in fear. Wisconsin Carry summarizes the 9-1-1 call as follows:

At or about the time that the WCI members finished their meal and left the restaurant, a woman in her car observed them openly carrying handguns and called 911 to report it to the City of Madison Police Department. The 911 caller informed the dispatcher that she didn't know if it was an emergency, the men were doing nothing wrong and appeared totally relaxed, weren't threatening anyone and the restaurant was full of people but they each had sidearms and she didn't know if that was legal.

Upon being informed by the 911 dispatcher that open-carry is legal the woman stated "then there is no problem and its not an emergency". The dispatcher then suggests that if the woman is concerned or disturbed then it becomes a problem and the woman says "no they weren't threatening anybody or acting threatening". When the dispatcher informs the caller they are sending officers she says "well I feel bad then because they weren't doing anything wrong".

 The full 9-1-1 call can be heard here.

It is important to note that while Wisconsin is one of the two states that still doesn't allow concealed carry, open carry is legal. In April 2009, Wisconsin Attorney General J. B. Van Hollen issued an advisory memorandum regarding open carry. The memo's summary states:

Under Article I, § 25 of the Wisconsin Constitution, a person has the right to openly carry a firearm for any of the purposes enumerated in that Section, subject to reasonable regulation as discussed herein. The Wisconsin Department of Justice (the Department) believes that the mere open carrying of a firearm by a person, absent additional facts and circumstances, should not result in a disorderly conduct charge from a prosecutor.

If the behavior reported in the 9-1-1 call is accurate, then it appears that the actions of the Madison Police Department go beyond what the Attorney General's advice suggests. The memo specifically states that under a Terry or investigative stop, while officers can ask questions, the person is under no obligation to answer them or to be compelled to identify him or herself.

In response to these charges of disorderly conduct and the subsequent policy proclamations in the City's press release, Wisconsin Carry and four of the individuals involved filed a lawsuit against the City of Madison and Madison Police Chief Noble Wray in U.S. District Court for the Western District of Wisconsin on this past Wednesday (Sept. 29th). They are represented by the Troupis Law Firm of Middleton, WI and John Monroe of Roswell, GA. Monroe is the VP of GeorgiaCarry.Org and is currently handling a CalGuns Foundation sponsored case, Peterson v. LaCabe,  in Denver, Colorado.

The lawsuit, Wisconsin Carry, Inc. v. City of Madison et al,  alleges three causes of action in their request for a permanent injunction against Madison and Chief Wray. First, the suit alleges that the City of Madison and Chief Wray are violating the Second and Fourteenth Amendment rights of the plaintiffs by their demands for ID or face arrest solely because they were openly carrying a firearm. The suit goes on to say that the new policies announced by the Madison Police Department in their press release (see above link) are "designed and intended to chill and prevent WCI’s members free exercise of their Constitutional right to keep and bear arms."

The second cause of action alleges that Madison and Chief Wray are subjecting "WCI members and other persons to invidious discrimination, and constitutes a violation of their right to Equal Protection secured by the Due Process Clause of the Fifth Amendment to the United States Constitution." The plaintiffs allege the new policy and procedures outline on September 22nd in the press release constitute harrassment, establishes a policy of unreasonable search and seizures, and is hostile to the right to keep and bear arms.

The third and final cause of action states that by maintaining and enforcing the laws, policies, and procedures set forth in response to the open carry movement, Madison and Chief Wray are violating the Second and Fourteenth Amendment rights of Wisconsin Carry members and the other named plaintiffs. Wisconsin Carry and the other plaintiffs:

are deprived of equal protection by virtue of the fact that the Defendants are enforcing criminal laws against the Plaintiff’s members based solely on the exercise of their constitutional right to keep and bear arms, and specifically, on their choice to openly carry a firearm as allowed by law.

Specifically, the suit asks the court to provide a permanent injunction that mandates:

the City of Madison and its Police Department to rescind and retract the orders and recommendations contained in its press release issued on September 22, 2010, and requiring these Defendants to take immediate corrective action to instruct its police officers and the general public that these orders and recommendations violate the Constitutional rights of these Plaintiffs and others, and are therefore not to be followed.

 The suit also asks for attorney fees and costs as well as damages in an amount to be determined at trial.

The City of Racine, Wisconsin had a similar incident in 2009 and was sued by Wisconsin Carry in U. S. District Court for the Eastern District of Wisconsin. In March of this year, a judgment was entered in favor of Wisconsin Carry. The City of Racine and two of their officers had to pay $10,000 as a result. Given that, I wouldn't be surprised to see a negotiated settlement in this case along with a recision of the new Madison PD policies and procedures.

Open Carry Win in California

UOC or unloaded open carry may seem like an alien concept to those of us who live outside of California. We understand concealed carry and we understand open carry. But unloaded open carry? However, in California, due to a quirk in the law, it is legal to carry an unloaded firearm openly and to have a loaded magazine or speed-loader elsewhere on your body.

To answer the question of why one would even bother all you have to do is look at the California Department of Justice concealed carry permit statistics. While in some of the more rural counties concealed carry permits are issued regularly, in the largest urban counties you can forget about it unless you are rich or famous or both. In San Diego County for the year 2007, there were only 1,479 permits issued out of a population of 2.8 million. That is about a .05% rate. Los Angeles County is even bigger in population (approximately 10.3 million) and even stingier with their permits (1,237). However, the dubious prize winner is San Francisco with just 6 permits issued in 2007.

To protest this disparity in granting concealed carry permits, there is a burgeoning Unloaded Open Carry movement in California. Activists will carry their firearms openly and unloaded in public. One such activist is Samuel Wolanyk of San Diego. In urban areas this can cause a bit of a stir. Here is how Gene Hoffman of the CalGuns Foundation describes Mr. Wolanyk's encounter with police in San Diego:

Nearly two years ago, “open carry” activist Wolanyk wound up looking down the barrels of two police handguns when San Diego Police officers Jody Kinsley and Troy White responded to a call of a man wearing a kilt, with a holstered gun, in San Diego’s Mission Beach area. The officers immediately exited their vehicles on arrival at the location, drew their firearms, and ordered Mr. Wolanyk to the ground.

The officers quickly determined the firearm was unloaded, had no magazine in it, with no round in the chamber, and was thus in full compliance with California law. The firearm was unloaded even though Mr. Wolanyk did separately possess loaded magazines carried in an additional pouch attached to his belt (a completely lawful activity).

Until that day, these officers had never heard of the burgeoning Unloaded Open Carry movement, in which persons entitled to possess firearms exercise their right to lawfully carry unloaded, holstered handguns (though some onerous geographic limitations do apply). One other key legal restriction on open carry in California law also exists: people must give up their Fourth Amendment rights and submit to law enforcement examination of the firearm to determine if it’s loaded. In Wolanyk’s case, however, the officers weren’t performing a loaded firearm examination; in the officers’ minds, they were responding to a “man with a gun” call and acting accordingly.

After San Diego Police Sergeant David Kries arrived at the scene, Mr. Wolanyk had hoped the officers’ errors would be competently rectified and he would then be free to go. But Sgt. Kries showed he too didn’t understand California’s complex gun laws, and arrested Mr. Wolanyk for carrying a “loaded” firearm – in direct conflict with both prior case law (People v. Clark) and common sense, which requires ammunition to be in a position from which it can be fired in order for a firearm to be considered loaded. Mr. Wolanyk was taken to San Diego Police headquarters, where it was determined that he violated no law. Two hours later, Wolanyk was back at Mission Beach with Officer Kinsley handing him back his firearm and ammunition. Neither an apology nor an explanation of why the Department hadn’t properly trained their officers was provided.

This incident led to a CalGuns Foundation funded and supported lawsuit against the City of San Diego. One goal of Wolanyk v. San Diego was to ensure that the police officers of the San Diego Police Department were properly trained regarding UOC. The other, as one might well expect, was to clear Mr. Wolanyk's name.

On Wednesday, September 29th, the City of San Diego settled the lawsuit rather than to go to trial with it. Mr. Wolanyk received $35,000 for his improper arrest and the SDPD granted his petition for a Finding of Factual Innocence which acknowledges that they had no reasonable cause for his arrest. Along with the settlement, the SDPD will enhance their training of their police officers to prevent such improper arrests in the future. This is definitely a win for civil and gun rights in California.

Now that the lawsuit has been settled, Mr. Wolanyk has posted the details of the incident on the CalGuns forum here. If the details are accurate, and I presume that they are, it is obvious that he knew the law on unloaded open carry more than the officers and police sergeant in question.

I am not an enthusiastic proponent of open carry as I think carrying concealed helps preserve your "gray man" status and preserves your element of surprise when dealing with the criminal element. That said, I do realize that open carry works to legitimize the carrying of firearms and desensitize the general public to the sight of a gun. As some have observed, it is akin to the gay rights movement in some of their protests. You may not always agree with them but you have to admit that they have been very effective in securing gay rights. In time, I hope the same will be said for the open carry activists.