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Old June 7, 2004, 05:44 PM   #151
FirstFreedom
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Although I completely agree with you on all points, Fishorman, FWIW, here is the Washington-specific problem with open carrying (here is why you're taking a risk of going to the pokey - today in Seattle, tomorrow in your neck of the woods, unless the legislature changes the law)....

To quote the heart/crux of the opinion from the test case interpreting the vague WA law against carrying/brandishing, posted on page 1 of this thread:

"Having determined that the "warrants alarm" portion of the statute is not vague, the only remaining question is whether Spencer's conduct falls within the statute's constitutional core. Clearly, it does. Any reasonable person would feel alarmed upon seeing, on a residential street at night, a man carrying a visibly loaded AK-47 assault rifle in an assaultive manner. This alarm would be intensified if the man were walking briskly with his head down and avoiding eye contact with passers-by, as Spencer was doing. Furthermore, our conclusion that Spencer's conduct warranted alarm is supported by the kinds of people who were alarmed in this case, including several firefighters, a police officer, and a passing motorist."

There are at least 3 problems problems with this opinion, the first 2 being rather glaring:

1. The biggest problem is that the appellate judges in this case, as can be seen from the bolded 2 sentences in the blip above, by those statements, are clearly injecting their opinion as a matter of law into something that is obviously a clear matter of FACT, which must be decided by the trier of fact, be that the jury or trial judge in the absence of a jury. Therefore, this case should have been remanded for a trial as to the FACT of whether "a reasonable person would have been alarmed" by the manner of carry of the firearm in this case. Instead, these idiotic and/or lazy judges simply decided to try the fact themselves - something which appellate judges are forbidden to do. So either the judges deciding this case need to be thrown out, or perhaps the case was poorly litigated by the attorney and litigant, forcing this issue. More likely the former is the case, but impossible to tell from the opinion whether the attorney/litigant failed in bringing this to the forefront of the argument, or whether they did, and the lazy, worthless appellate judges simply knowlingly glossed over the fact that only a jury or trial judge is entitled to decide FACTS from the evidence/witnesses;

2. It is a bit unclear from the opinion whether, in determining whether one's method of "brandishing" actually "warrants alarm", based on all the facts and circumstances, is supposed to be an OBJECTIVE test, or a SUBJECTIVE test. These idiotic judges are all over creation on this point. By saying "a reasonable person" (thus making themselves a trier of fact), they seem to imply that's it's an OBJECTIVE test - that the trier of fact should decide whether an average, reasonable person would be alarmed. This test would make more sense if it were a matter of CIVIL liability, because it could vary from place to place, and thus take into account the feelings/thoughts/norms/values of the local jury of one's peers. BUT, for a CRIMINAL matter, *IF* the court is adopting such an objective test, then it seems that they are dead wrong when they came to the conclusion that the law is NOT unconstitutionally vague - criminal laws must be pretty clear to be constitutional. Having said that, it is not totally foreign to the criminal law to implement types of OBJECTIVE tests for criminal behavior, most often seen in negligent homicide case (manslaughter), which are in turn usually a result of a drunk driving-caused death. The law allows the jury to decide whether, based on all the facts and circumstances, the drunk driver was grossly negligenct - if he was, then it's manslaughter; if he wasn't then it's not a homocide (not manslaughter). How drunk? How fast? How reckless? How many likely pedestrians? Etc, etc, etc. So it wouldn't be entirely wrong I suppose to incorporate an objective test into the criminal law. But it makes it scary for the person open carrying as to whether they're breaking the law, and it certainly runs counter to the general idea of criminal law being more black and white as to whether one is breaking it. In any event, by not remanding, they've potentially shut the door for future litigants to even attempt to get this objective test to the trier of fact (jury). (back to problem number one). Now, OTOH, by noting that certain people were in fact actually alarmed, the court seems to be saying that a SUBJECTIVE test is appropriate: i.e. one person is actually scared, then that's it, yoiu're guilty. This would be the kiss of death as a practical matter, if future trial courts interpret this decision to mean a subjective test. Because there will always be at least ONE blissninny (99% chance) that will see you and actually be scared in his/her own mind, even if its a single action army revo, holstered with retention strap, carried by a kindly looking old grandpa with a big smile and lots of eye contact. Objective would be better and that seems to be the suggestion of the court, since they said somthing like "as additional evidence, some folks were actually alarmed."
3. The last problem is simple confusion as to what the actual facts are. Again, we need a trier of fact to try the facts, and submit their findings of facts to the appellate court in an organized format. Specifically, I don't see how one minute the gun is "slinged", and yet the court finds that it's being held "in an assaultive manner".. wth? Also, I doubt it was a select-fire weapon, as is indicated by the undoubtedly firearm-ignorant court, by saying "AK-47". Also, how does a so-called "clip" being in the gun, which was in fact witness, equate to the gun being "visibly loaded". I doubt those firemen and the initial RP has x-ray vision, so how could they tell it was actually (visibly) loaded? As you know, mag being in does not necessarily equate to being loaded (regardless of the ultimate actual condition of the rifle - all that matters is whether a reasonable person witnessing the carrying/brandishing thinks in his/her mind. And this reasonable person, for one, would not necessarily think that a man carrying a rifle with mag in means that it's loaded - nor would I necessarily be alarmed, of course - contrary to the court implying that "clearly", anyone would be alarmed. Let's get the facts straight before we go to appeal. Again, it's unclear whether it was poorly litigated, or was finely litigated, but the judges just glossed over the points of the defendant. The whole statute stinks because of it's vagueness, and more imporantly, because of it's direct infringement of our RIGHT to BEAR arms (the court found otherwise, but they're idiots).
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Old June 7, 2004, 07:22 PM   #152
Fred Hansen
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Nope. But the majority of people who drive cars are not driving without a valid license. 90% of the time I get a call about a man with a gun, they're up to no good.
So in Kommiefornia where only thugs and elites like yourself are allowed to carry guns, you find that 90% of the time (when you get a call about "a man with a gun") "they're up to no good".

Good to know. I would have guessed that would be exactly the case in a society where only the thugs/police/elites are allowed the right to the means to reasonable self-defense. Or in the case of some police and all thugs, offense. I'm glad that your experience confirms my suspicions.

Take a vacation in the real America sometime - say Idaho, or someplace civilized - people with all kinds of guns, in their trucks, sometimes on their hips. If people called in "man with a gun" the cops would say "well, DUH!"
Almost no crime in places like that. Very civilized.

Good luck on your career. Remember to put those peasants with "pacifiers" in their rightful place.

*Note to self: Log this as reason 8,007,964,825 to not go anywhere near Kommiefornia.


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Old June 7, 2004, 08:07 PM   #153
FrankDrebin
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How old are you, Frank? Have you noticed that suspicion and outright hatred towards cops has increased exponentially? Well, it has...even during my relatively short (35 year) lifetime. Do you agree?
Actually, no. Seems to me that things have gotten much better since the 70's. And if there has been any increase in cop hating, it certainly hasn't been exponential.
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Old June 7, 2004, 08:10 PM   #154
KenPaul
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Now, let's be prefectly clear: I am not interested in your safety. By your choice of job you willingly sacrifice the (non-existent) right to safety. It becomes your responsibility to deal appropriately NOT ONLY with the bad guys but the good guys as well. That's what makes the job tough. If you find your fear clouds your ability to do that then it is time for you to find another job, not for a law abiding Citizen to mold himself to fit your fear.
FrankDrebin,

Your posts, and others like them, are exactly the reason this discussion is taking on the edge that it has. And that's fine; it's a good thing to have this kind of discourse. I would rather it were hypothetical instead of with a serving police official, but such is life. Tyranny will always be with us in one form or another, and it must be opposed wherever it is met.

To the point:

2A sucked the words right out of my keyboard. The issue is not the safety of the police officer, the issue here is the rights of the individual citizen. Government officials, in the course of "performing their duty", do not have the right, responsibility, obligation or any other cause or reason to violate the rights of a law abiding citizen. The true duty of any representative of the government is to zealously uphold the rights of the individual - everything else comes in a distant second - including life itself. For without the former, the later is not worth anything anyway. Many have died to punctuate this very point.

I don't know what to say that will convince you, except that you are missing the very core meaning of the Constitution, and why our ancestors incited a bloody revolution to bring its principles to light; binding them into the foundation of our national identity, our very reason for existence as a nation.

I do find it a bit ironic that this conversation is taking place on the sixtieth anniversary of D-Day, where thousands of men and women died to protect the very freedoms you dismiss with such selfish disregard. I don't make this statement lightly. Police officers' lives are potentially at risk on a daily basis; we all understand this and it is what makes the analogy valid. As any good soldier understands (as do good police officers, and there are many of them,) their primary duty is to the Constitution and the Bill of Rights, and they are willing to trade their lives to ensure its integrity.

My question to you is this:
Why do you claim the privilege of placing your personal well being above the Constitution and Bill of Rights when so many before you consciously and bravely chose exactly the opposite? Were they wrong and you right?

Think on that for a bit.

If after some thought it doesn't sit well with you, then maybe you're in the wrong profession. Please understand that I know your job is difficult and I don't take it lightly, nor do I envy you the task. However, it is a profession that you chose freely, and one in which you knew the risks. Placing your own well being above the rights of another is a violation of the trust that was placed in you when you took your oath. It makes you the criminal.

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Old June 7, 2004, 08:22 PM   #155
FrankDrebin
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My question to you is this:
Why do you claim the privilege of placing your personal well being above the Constitution and Bill of Rights when so many before you consciously and bravely chose exactly the opposite? Were they wrong and you right?
Because first and foremost, I'm going home to my wife and kids. Your right to openly carry every minute of the day takes a backseat to that if I feel you could possibly be a threat. When a court decides that someone's rights were violated when the police took their gun temporarily after being called about a "man with a gun", let me know. The lawsuits should have already been filed. As far as men hitting the beach at Normandy to protect our rights, what kind of effort do you think you would have made to liberate all the American citizens who were forcefully interred, right here in America at the time? And if you were to get an audience with the President, do you think they'd let you keep your openly displayed gun on you without prior arrangements? Or do you think they'd jump on your like the cop in the bookstore if you walked in with your partially concealed gun?

I don't have to investigate the factual basis of the information I get before I take reasonable measures to insure my safety. If the dispatcher sends me to a bank about a man with a gun, that's good enough for me to go there, find the man with the gun, and take his gun until I determine what's going on. If it is later determined that there was no factual basis for the stop, then any evidence would be excluded. But I don't have to sit there and wait to find out everything the dispatcher knows before I secure a guy's gun.

Even one of you admitted that you'd treat a well-dressed man with a gun differently than you'd treat one wearing saggy pants and a gangster rap shirt. Well guess what, you can't base reasonable suspicion on the fact that someone is wearing FUBU instead of Tommy. And the gangster rapper has just as much right to carry as you do. You know damn well you'd disarm someone who looked like that if they were in your store, or if you were the cop called to the run of "a guy with a gun". Especially if they were a couple young black guys dressed like that and there were virtually no young black guys living in your town. But somehow I'm supposed to grant you more rights because you're well-dressed white guys? I'd be willing to guess that in the jurisdictions where you were "harrassed", there are very few of anyone running around with guns showing, especially when it's a shall-issue state. It's unusual, just like 3 young black guys with guns going into your local boutique would be unusual. You don't get any fewer points on the suspicion meter just because you're a middle-aged white guy who dresses "nice" by middle-aged white guy standards.

Last edited by FrankDrebin; June 7, 2004 at 08:54 PM.
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Old June 7, 2004, 08:54 PM   #156
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You realize, Frank, that if push ever comes to shove, your disdain for the Bill of Rights might be the very thing that precludes you from going home to your wife and kids?

To disarm the people - that was the best and most effectual way to enslave them.-(George Mason)

Americans have the right and advantage of being armed - unlike the citizens of other countries whose governments are afraid to trust the people with arms.-(James Madison)

As civil rulers, not having their duty to the people before them, may attempt to tyrannize, and as the military forces which must be occasionally raised to defend our country, might pervert their power to the injury of their fellow citizens, the people are confirmed by the article in their right to keep and bear their private arms.-(Tench Coxe)

The people are not to be disarmed of their weapons. They are left in full possession of them.-(Zachariah Johnson)

Evidently, if you believe in depriving someone of their rights for exercising them, you find yourself at odds with the Founders.

Smart bunch of dead white guys: They saw you coming two hundred years ago.
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Old June 7, 2004, 08:59 PM   #157
TheBluesMan
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I think this thread has *more than* run its course. I've refrained from closing it up until now because almost everyone has been very courteous in their responses; but it seems like y'all are just beating a dead horse now. Since the discussion is producing more noise and less signal of late, I'm going to shut it down.

As always, please PM or email me if you have questions about this call.

- - - - - - - - - - - - -

Perhaps a new thread seeking common ground would be in order.

Frank - Maybe you can describe a scenario in which you notice a citizen carrying openly or partially concealed and *don't* feel the need to disarm them. Is it *ever* acceptable?

Fred, Thumper, 2A et al - Maybe you can describe a scenario in which you wouldn't feel that your rights are being violated by being temporarily disarmed. Is it *ever* acceptable?


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