Blogger Guilty
Jason at FishOrMan just learned the hard way that there’s no Second Amendment defense to brandishing, and that copping an attitude is not a very effective defense strategy. Live and learn. Or, given the subsequent incident, perhaps I should say live and don’t learn.
May 9th, 2005 at 6:30 pm
X,
I read all the posts and can’t figure out what to think about this. Yes, this guy sounds like every law-abiding gun-owner’s nightmare. In addition, he clearly lacks even the most tenuous grasp of 4th Amendment law. Plus, he sounds like an asshole.
Given that, however, what’s the deal on the case? Is open carry legal in that state, or not? Even if I believed that most gun laws generally were constitutional, I’d have some serious concerns for this one: “It shall be unlawful for any person to carry, exhibit, display, or draw any firearm, dagger, sword, knife or other cutting or stabbing instrument, club, or any other weapon apparently capable of producing bodily harm, in a manner, under circumstances, and at a time and place that either manifests an intent to intimidate another or that warrants alarm for the safety of other persons.”
Sounds unconstitutionally vague to me — at least as applied, and possibly on its face. The “manifests intent” part is probably fine, but the “warrants alarm for the safety of other persons” bit strikes me as problematic. What the hell does it mean? Who decides when alarm is warranted? Is everyone who carries at the mercy of the unreasonably skittish? How’s someone supposed to know how to conform his conduct to the requirements of the law? It sounds to me like the statute contemplates that some open carry is okay, or else the entire section starting, “in a manner, under circumstances…” would be surplusage.
What say you, X?
May 9th, 2005 at 7:04 pm
I also am ambivelent about this. I understand that what he did is legal as I understand it and I also do not want a gun grabber’s feelings to be the standard for whether I am protected by the law. On the other hand, you have to looking for trouble to walk into a bank with a displayed gun or to not have respect for the nervousness of police officers who pull you over. I mean, let’s be real. While it may have been his aim to excercise his gun carry rights, I can’t help but suspect that he was deliberately trying to intimidate people. I am very comfortable around guns. But I would never walk into a store, at least in my urban area, or a bank, with a pistol tucked in my wasteband. And I would certainly be grabbing my kids and exiting if someone walked in as he did.
May 9th, 2005 at 7:11 pm
To the best of my knowledge, there is no Washington law making it generally illegal to carry openly. From this, Jason manages to conclude that it must always be legal to do so, RCW 9.41.270 be damned.
As to the constitutionality of the law from a non-Second Amendment perspective, there’s no question open carry is problematic, at least in urban areas. I don’t think that puts people at the mercy of the “unreasonably” skittish – the word “warrants” implies some reasonableness must be required – but there’s no question that it’s risky. This was, IIRC, one of the major arguments for concealed carry in the pro-gun states that already allowed open carry. The vagueness problem wasn’t limited to Washington; AFAIK it applied across the board. I’m sure you’d encounter the same problem if you carried openly in Illinois, in an area that looks and feels urban but is technically not part of any city or village.
As to the Second Amendment issue, I think there’d be a real case if this happened in a no-issue or may-issue state. I don’t think the Second Amendment can reasonably be read to require states to allow both open and concealed carry. I think it requires one or the other, though my personal preference is to allow both.
The main reason for my lack of sympathy for Jason, aside from his general assholehood, is the fact that he lives in a solidly pro-gun state and nevertheless insists on flouting the law rather than working with the system. He claims three jurors were dismissed because they “support the Second Amendment.” He didn’t say if the strikes were peremptory or for cause. If they were peremptory, why didn’t he respond by striking three other jurors who don’t support the Second Amendment? If it was for cause, I have to suspect that the question was a bit more specific than “do you support the RTKA generally?” Else the judge would have to have kicked off a lot more than three jurors to get anything other than a hung jury. This is the state whose voters sent a gun registration law down by a 3-1 margin statewide, and 2-1 in ultraliberal Seattle. Even Tom Foley didn’t dare support the AW ban; he just didn’t try very hard to persuade his Democrat colleagues to join him in voting against it.
May 10th, 2005 at 12:57 am
OK, granted the guy was a jerk and was looking for trouble. But I’m curious about the legal point he made: that the officer had no legal authority to investigate a 911 call that didn’t include any illegal activity. It sounds reasonable to me. Was he right?
May 10th, 2005 at 9:27 am
Spoons:
“Is open carry legal in that state, or not?”
One problem may have been that Jason was for the most part not really open carrying the way most people would define it. In the bank/Fred Meyers incident Jason was carrying a 1911 with a Clip-Draw attached. The gun was stuck down in his pants, with the gun’s handle sticking out. Is that open carry or is it semi-concealed carry? After that incident the people on The High Road convinced Jason to buy a belt holster so he could open carry for real.
Doc:
“But I’m curious about the legal point he made: that the officer had no legal authority to investigate a 911 call that didn’t include any illegal activity.”
I can’t comment on the law, but from a layman’s point of view it seems reasonable to me that a policeman has the duty to investigate a 911 call to determine if there has been illegal activity. Otherwise every crook would just say “I’m involved in legal activity, cop – go away.”
May 10th, 2005 at 11:27 am
One thing about the machination of the legal system, I mean really avoid it all costs, that people would seem to invite controversy in their life is so foolish.
I’m not admitting anything, but seriously how many illegal acts do regular citizens commit in a regular day, so why get on the prosecutor’s bad side…Bad Call…
May 10th, 2005 at 12:38 pm
No. Cops have every right to respond to a 911 call. They don’t have to have probable cause to believe a law was violated; indeed, cops routinely respond to emergency calls involving no illegal activity at all. They needed probable cause to arrest him, of course, but by the time they did so, they had more than that.
May 15th, 2005 at 9:10 pm
“But I’m curious about the legal point he made: that the officer had no legal authority to investigate a 911 call that didn’t include any illegal activity”
but a call about a man with a gun can be about both legal and illegal activity. The cop doesn’t know which, and is investigating, and is not going to stop investigating because the subject tells him everything is ok.