Utah gun bill reflects problem with Washington statute

Utah lawmakers will consider legislation next month that would remove criminal penalties for merely carrying a firearm in public, in a lawful manner, whether openly or concealed, prohibiting the armed citizen from being charged with, for example, disorderly conduct.

Washington State lawmakers ought to pay attention, because the same kind of housekeeping measure could prevent unpleasantness in places like Seattle, Spokane, Tacoma, Bellingham and elsewhere. It could be important during the upcoming legislative session to have a measure on the table to counter the already-announced intention of Washington CeaseFire to push for a ban on open carry, which could be a constitutionally thorny effort. This column discussed that plan, and since then, CeaseFire has watered down remarks on their website, but not to the point that they have abandoned their plan.

Utah’s HB49, according to KSL News, is sponsored by State Rep. Paul Ray, a Clearfield Republican. According to the published report, the bill says that:

“… in the absence of additional threatening behavior, the otherwise lawful possession of a firearm … whether visible or concealed” would not in itself constitute a violation of various criminal statutes.—KSL News

Despite a couple of appeals court rulings in Washington over the past several years, there remains on the books a provision in state law that says this:

(1) 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.—RCW 9.41.270

This is the section of law that occasionally trips up some Open Carry activists, or those who carry concealed and suddenly have their guns revealed, either by a blast of wind or because they bend over the wrong way. Granted, court rulings in this state have tended to tighten down on this provision, but not always.

Not all open carriers experience problems. One leading activist in Federal Way has advised this column on numerous occasions that he has been carrying openly for several years and he has never had a problem, even when he walks into a grocery store or bank. Others, however, seem to draw attention like magnets, and the outcome is not always pleasant. It is possible that some open carriers behave in a manner that deliberately draws attention to the fact they are armed, which leaves other activists shaking their heads. To chat with some of these folks, visit the monthly Washington Arms Collectors gun show in Puyallup, where there is usually an Open Carry display.

There really should be no issue, because of court rulings such as the one on State v. Casad, except that this decision went unpublished by the Court of Appeals, for reasons that have never been explained. The Casad ruling spells out rather matter-of-factly:

“We note that, in connection with this case, several individuals have commented that they would find it strange, maybe shocking, to see a man carrying a gun down the street in broad daylight. Casad’s appellate counsel conceded that she would personally react with shock, but she emphasized that an individual’s lack of comfort with firearms does not equate to reasonable alarm. We agree. It is not unlawful for a person to responsibly walk down the street with a visible firearm, even if this action would shock some people.”—Washington State Court of Appeals, Division II

It would be up to lawmakers and sensible citizens (this might exclude the anti-gun extremists) to craft a fix to Washington’s statute that would make it less likely for legally-armed citizens to become victims of hoplophobic anti-gunners or the handful of police officers and sheriff’s deputies who haven’t seen training bulletins on open carry, or may have transferred here from other jurisdictions and are not fully aware that Washington is an open carry state.

Hoplophobia is not always limited to urban scenarios. Some open carry folks have had problems with others in the backcountry, where rational people might expect to see others carrying firearms on their belts or over their shoulders.

That Washington Ceasefire wants to prohibit open carry in the Evergreen State could be tilting at legal and constitutional windmills. Not only is there court recognition that openly carrying a firearm in a peaceable manner is legal, it could also be argued forcefully that the practice is protected by the State Constitution’s Article I, Section 24, and by the Second Amendment, which was incorporated to the states in June 2010 by the Supreme Court in McDonald v. City of Chicago. That was the landmark case filed and won by Bellevue’s Second Amendment Foundation.

The State Constitution notes:

The Right of the individual citizen to bear arms in defense of himself, or the state, shall not be impaired, but nothing in this section shall be construed as authorizing individuals or corporations to organize, maintain or employ an armed body of men.

That does not mean an individual or corporation cannot organize an armed group; where would private security companies be under this provision? However, it does mean that this business endeavor is not specifically authorized by the Constitution. Open carry groups can still do their monthly freeway clean-up projects without running afoul of the law, but there is nothing in the State Constitution that authorizes such activity.

All of this is probably academic, since the Legislature is not likely to take up a gun control measure in 2012, when they face re-election in November. It is more likely lawmakers might consider fixing the language currently in state law to clarify and further protect a practice that is already recognized as legal.

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