9.41.050 and 9.41.060 discussion

[DeltaOps]

It is also obvious that you have not been on the receiving end of a bad LEO encounter that will do more than anything else to change your attitude about how you are willing to interact with LE.

You really have no clue! I have been on both sides, but I have kept my calm and when I was in the wrong, I manned up and took the blame. If I was not in the wrong, I tactically fought for my rights and was never arrested. It is funny how things work smooth when you cooperate and stay with in your rights.

 

[Difdi]

Difdie:

Is it really THAT hard to get my handle right, even when you're staring right at it?

The law does not make it a crime to carry a loaded weapon on a bus. The law states, to carry loaded on/in a vehicle you need to meet these requirements.

Then why does the law use the word misdemeanor?

For the same reason, it is Illegal for a WA state LEO to just stop you to check your CPL, or to see if your weapon is loaded, even IF that loaded carry could be an "crime". Because it can also NOT be a crime, it must be assumed (barring other outside circumstances) that the act IS Legal.

Other outside circumstances like the OP in the other thread told the officer he intended to board a vehicle with a loaded weapon? You seem to be claiming that doesn't give the officer reasonable suspicion that a misdemeanor is about to be committed, because it is not absolute proof of guilt. By that standard, there is no such thing as reasonable suspicion, and no such thing as probable cause.

There are exemptions to the law against possessing a firearm in a courtroom while court is in session. Are you asserting that a LEO cannot even investigate after seeing a spectator in a courtroom is open carrying?

Refusal to display a CPL to a police officer on request, in situations where you need one to be exempted from the law, is against the law. It's only an infraction, not a misdemeanor, but it is still against the law.

Under your interpretation of the law, it would be all but impossible to arrest anyone for anything, without an actual sworn warrant. Are you truly asserting that almost all arrests in the state are false arrests?

If so, I refer you to a U.S. Supreme Court case on the subject of the Fourth Amendment and false arrests. John Bad Elk vs The United States. If Washington has stronger constitutional protections than the U.S. constitution provides, the Bad Elk decision would definitely apply here.

The mere act of carrying a loaded gun for your own self defence is NOT an illegal act, and you cannot allow it to be treated as one. If you do, you do a disservice to yourself, and your community.

I have never even implied that it is. You keep putting those words in my mouth (or in my fingers, given the venue), but you are the one who keeps bringing it up.

 

[rapgood]

I disagree. Section 3 starts This shall not apply to: and then lists several exemptions. Very simply, If I was to pull my weapon on a car-jacker...this would not apply...even though the obvious INTENT is to display the weapon in an aggressive manner. It is the self-defense exemption. If I was to pull my weapon on a person for no good reason, or just do the Arab thing of shooting in the air when they celebrate...then it would apply.

I guess I just don't see it that way. Pulling a weapon on a car-jacker is an act of self-defense and becomes a question of fact for a jury: 1) was the weapon displayed with a specific intent, and 2) was that intent/specific act justified by the defense of self/others/property?

RCW 9.41.270(3)(a), on the other hand, does not involve an "intent" element at all. Whether a weapon was displayed in one's "place of abode or fixed place of business" is a question of law that can be determined by a judge (trust me on this one, I have prevailed in court on the question and it is a well-settled question of law in Washington state), and is not tied to the "intent" element required to make the act a crime.

Although the Maciolek court determined that the "warrants alarm" clause in 9.41.270(3)(a) means

If a weapon is displayed in a manner, under circumstances and at a time and place so that it poses a threat to another person, such a display would warrant alarm for the safety of another. Thus, narrowly construing the phrase to apply to only conduct that poses a threat to others gives the phrase a narrow and definite focus and saves it from vagueness.

State v. Maciolek, 101 Wn.2d 259, 268 (1984), I think that this requires an inference that the "warrants alarm" clause implies "intent" (mens rea) and begs the question of whether due process and fair notice is properly given by the statute such that the average, reasonable citizen can ascertain what conduct is commanded or proscribed.

This due process and fair notice infirmity is demonstrated by the statute's lack of a mens rea requirement—violation of the statute does not hinge on the state of mind of the potential violator, but rather on the reaction of third parties. See City of Chicago v. Morales, 527 U.S. 41, 55 (1999) (holding a vague law with no mens rea requirement that infringes on a constitutional right "is subject to facial attack").

 

[hermannr]

I guess I just don't see it that way. Pulling a weapon on a car-jacker is an act of self-defense and becomes a question of fact for a jury: 1) was the weapon displayed with a specific intent, and 2) was that intent/specific act justified by the defense of self/others/property?

RCW 9.41.270(3)(a), on the other hand, does not involve an "intent" element at all. Whether a weapon was displayed in one's "place of abode or fixed place of business" is a question of law that can be determined by a judge (trust me on this one, I have prevailed in court on the question and it is a well-settled question of law in Washington state), and is not tied to the "intent" element required to make the act a crime.

Although the Maciolek court determined that the "warrants alarm" clause in 9.41.270(3)(a) means State v. Maciolek, 101 Wn.2d 259, 268 (1984), I think that this requires an inference that the "warrants alarm" clause implies "intent" (mens rea) and begs the question of whether due process and fair notice is properly given by the statute such that the average, reasonable citizen can ascertain what conduct is commanded or proscribed.

This due process and fair notice infirmity is demonstrated by the statute's lack of a mens rea requirement—violation of the statute does not hinge on the state of mind of the potential violator, but rather on the reaction of third parties. See City of Chicago v. Morales, 527 U.S. 41, 55 (1999) (holding a vague law with no mens rea requirement that infringes on a constitutional right "is subject to facial attack").

You might read the appeal in State v. Casad...it is unfortunate it is not a published opinion, but it has some very interesting reasoning that was not appealed higher as to what "warrents alarm" may mean in WA in this context.

 

[DeltaOps]

Ok so if someone decided to OC a loaded pistol on a bus, BUT did not have a CPL and the persons intent is to commit a crime with said pistol. Nobody knows the persons intentions. So if a LEO stops the person as that person is about to walk into the bus, asks for a CPL. The person refused to talk to the LEO. LEO detains, and later finds out that the person does not have a CPL. That person can now turn around and sue for illegal search?

So according to some, if the LEO was doing his duty, he would have never stopped the person and later that same person shoots and kills another. Then gets caught and now the LEO is at fault and the city still gets sued. hmmmm

What if the person that was shot was one of your family members, would you still pat the LEO on his back and tell him good job for doing your duty?

 

[Vitaeus]

John Doe walks from a bar to his car and drives away. Can a LEO just pull the car over? No!, but that LEO can follow that car and as soon as the person driving breaks any kind of traffic law, that LEO can now pull him over. This really has no comparison to a loaded pistol and OCing in a vehicle.

Saw this waited until I found the citation

http://scholar.google.com/scholar_case?case=13704431909460239836&hl=en&as_sdt=2&as_vis=1&oi=scholarr STATE of Washington, Respondent, v. Thomas L. LADSON, Petitioner. Supreme Court of Washington

"The issue is whether pretextual traffic stops violate article I, section 7, of the Washington Constitution. We find they do and, accordingly, reverse the Court of Appeals and reinstate the trial court's suppression order."

Very long, but very readable discussion of Art 1, section 7.

 

[DeltaOps]

Saw this waited until I found the citation

http://scholar.google.com/scholar_case?case=13704431909460239836&hl=en&as_sdt=2&as_vis=1&oi=scholarr STATE of Washington, Respondent, v. Thomas L. LADSON, Petitioner. Supreme Court of Washington

"The issue is whether pretextual traffic stops violate article I, section 7, of the Washington Constitution. We find they do and, accordingly, reverse the Court of Appeals and reinstate the trial court's suppression order."

Very long, but very readable discussion of Art 1, section 7.

Damn that was long! Thank you for the cite.

 

[Vitaeus]

You are welcome, the Art 1, section 7 section analysis was good stuff and applicable in general to this thread, about the privacy interest embedded in the State Constitution.

 

[Vitaeus]

Ok so if someone decided to OC a loaded pistol on a bus, BUT did not have a CPL and the persons intent is to commit a crime with said pistol. Nobody knows the persons intentions. So if a LEO stops the person as that person is about to walk into the bus, asks for a CPL. The person refused to talk to the LEO. LEO detains, and later finds out that the person does not have a CPL. That person can now turn around and sue for illegal search?

So according to some, if the LEO was doing his duty, he would have never stopped the person and later that same person shoots and kills another. Then gets caught and now the LEO is at fault and the city still gets sued. hmmmm

What if the person that was shot was one of your family members, would you still pat the LEO on his back and tell him good job for doing your duty?

I think this falls under the old question "So, Mr. Smith, when did you stop beating your wife?"

 

[sudden valley gunner]

Ok so if someone decided to OC a loaded pistol on a bus, BUT did not have a CPL and the persons intent is to commit a crime with said pistol. Nobody knows the persons intentions. So if a LEO stops the person as that person is about to walk into the bus, asks for a CPL. The person refused to talk to the LEO. LEO detains, and later finds out that the person does not have a CPL. That person can now turn around and sue for illegal search?

So according to some, if the LEO was doing his duty, he would have never stopped the person and later that same person shoots and kills another. Then gets caught and now the LEO is at fault and the city still gets sued. hmmmm

What if the person that was shot was one of your family members, would you still pat the LEO on his back and tell him good job for doing your duty?

This is the price of living in a free society.

It's a misdemeanor to drive on a suspended license.

A cop sees a guy driving a car you need a license to drive, the driver hits and kills someone, they found out driver didn't have license? He should investigate all drivers to see if they have license's.

I say lets' get rid of unconstitutional 'proactive' policing and make people be more responsible for themselves.

 

[sudden valley gunner]

I copied this from the forum earlier this year because I thought it was interesting and it appears to be relevant to this discussion, so I'll post it.

Originally Posted by eye95

In GA, a person was observed putting his gun on. He then entered a train. The officer that observed the holstering stopped the carrier and demanded his CPL. The court ruled that the stop and the demand were lawful because having the CPL was a defense to the charge of carrying on a train, and not an element of the crime. Therefore the LEO, knowing the carrier was carrying, had knowledge of all the elements of the crime and had RAS. The carrier could defend himself against the suspicion by producing the license. Had he chosen not to produce the license, the officer would have arrested him. Producing the license at the trial would result in acquittal.

If the law had been written in a way such that not having the license was an element of the crime, then, until the officer had reason to believe the carrier had no license, he (ironically) could not demand it.

Very interesting. So what about this Washington law:

(2)(a) A person shall not carry or place a loaded pistol in any vehicle unless the person has a license to carry a concealed pistol and: (i) The pistol is on the licensee's person, (ii) the licensee is within the vehicle at all times that the pistol is there, or (iii) the licensee is away from the vehicle and the pistol is locked within the vehicle and concealed from view from outside the vehicle.

The way I read it, not having a CPL is an element of the crime regarding carrying a loaded gun in a vehicle. So, person open carrying, which requires no license in Washington, gets into a vehicle... I see no RAS for the officer to stop the person at that point only for the reason of verifying they have a CPL, unless there was actual reason to believe the person did not have a CPL. Correct?

Missed this for some reason Tom, not familiar with the Georgia case, but your last sentence I totally agree with.



Florida law states in 790.06 something similar to our laws...

The licensee must carry the license, together with valid identification, at all times in which the licensee is in actual possession of a concealed weapon or firearm and must display both the license and proper identification upon demand by a law enforcement officer.

Yet their supreme court ruled this way....

Regalado v. State, 25 So. 3d 600 - Fla: Dist. Court of Appeals, 4th Dist. 2009
"Despite the obvious potential danger to officers and the public by a person in possession of a concealed gun in a crowd, this is not illegal in Florida unless the person does not have a concealed weapons permit, a fact that an officer cannot glean by mere observation. Based upon our understanding of both Florida and United States Supreme Court precedent, stopping a person solely on the ground that the individual possesses a gun violates the Fourth Amendment."

So even with the produce on demand part of the law and it being illegal to carry a concealed weapon, the cops had no RAS to detain somebody they saw possibly breaking the law. I feel our courts would rule similarly and maybe even with stronger wording once Sanders is back on the bench.

 

[DeltaOps]

This is the price of living in a free society.

It's a misdemeanor to drive on a suspended license.

A cop sees a guy driving a car you need a license to drive, the driver hits and kills someone, they found out driver didn't have license? He should investigate all drivers to see if they have license's.

I say lets' get rid of unconstitutional 'proactive' policing and make people be more responsible for themselves.

I agree. Thank you all for your input and cites. Maybe all of this will help others later on in the future. Protect our freedom, you never know when someone will try to take it away.

 

[rapgood]

You might read the appeal in State v. Casad...it is unfortunate it is not a published opinion, but it has some very interesting reasoning that was not appealed higher as to what "warrants alarm" may mean in WA in this context.

Yes. It is unfortunate that it is not a published opinion, and therefore has no precedent value. Many is the time that I have longed for the ability to cite to unpublished cases that bolster my arguments. But, I can't (probably because unpublished cases generally are aimed at one particular outcome in one particular case, and the courts don't want them used as precedent).

I have analyzed every published case involving RCW 9.41.270 and included that analysis in pleadings. Maciolek is the single (reported) case that analyzes the meaning of the "warrants alarm" clause in 9.41.270(1).

BTW, I attempted to cite to Casad in a brief last year and was handed my a** by the court. Oh well. Nothing ventured...

 

[sudden valley gunner]

I agree. Thank you all for your input and cites. Maybe all of this will help others later on in the future. Protect our freedom, you never know when someone will try to take it away.

Thank you for your kind words. That is what I am all about, come up to Bellingham sometime we have a great group of folks with all sorts of different political thoughts and ideas and we have a great time hanging out. I think you'd enjoy yourself.