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Old May 22, 2004, 08:58 PM   #1
Fishorman
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Great Fun while open carrying

Ok, well. This is my first post here ever... so be nice. I will give the reason I open carry now, before the question gets asked. I open carry because it is my right in Washington State, (if it doesn't get used it will be lost). The next reason I open carry is because I went through 28 years of my life never knowing how many handguns were out there protecting me. I could have easily been ignorant enough to vote for things like the AWB. I never saw a handgun, except the "bad" ones on the news or the "scary" ones on the cops. So, we have hidden the "good" handguns for so many years, ignorant people vote against all guns not realizing they are taking guns out of the lawful citizen's hands, (and only their hands). The next reason I open carry is Washington state does not acknowledge my right to conceal carry, I have to ask permission, be fingerprinted like a criminal and pay for the privledge. The last reason, (which could immediately move to number one with one trigger pull), is defense of life. Self-defense is last on my mind because thanks to all those CCW folks I have lived my life relatively crime-free, thank you!

So, that being answered on with what happened today in Ellensburg, WA.

The wife and I walked to the bank to get money for my wife's trip to New Orleans. I was open carrying my handgun as per usual. This was my third time open carrying to this bank, which is inside a Fred Meyer department store. Young teller at the bank decided I was too scary looking after withdrawing money from my account, legally, so he called the police.

They caught up with us in Fred Meyer's make-up section. Officer K-9 boy decided to investigate an investigation, (per usual), "this isn't harassment, this is investigating an investigation." No crime being committed he didn't have much to do, so I told him I didn't enjoy his company in the make-up section. He told me to calm down and called out a "code 1." This means all the cops come running for back-up. He had already taken my gun from me. And told me I was making a scene. I asked him, "was a "code 1" really necessary? Five cops coming to harass me is what will make a scene." He told me he only called for one additional unit. Yeah, right. We had 4 more show up, within minutes. They sure are busy these days.

So, I am surrounded by officer's giving me their opinion on open carrying, my attitude, and anything else they could come up with. They tried talking with the wife, (who was remaining calm as a cucumber), but didn't get very far, her saying, society has been brainwashed against open carrying.

They knew they had nothing on me, but tried to back me into a lie. Asking for a Concealed Weapon permit? I told him I didn't need one for what I was doing. But he asked me again. (Key to that little misdemeanors is if you have a CCW permit and don't tell a cop when he asks for it, then you are breaking a law). I do not have one, so he couldn't get me on that little technicality. (But, he tried). Also, tried to get me on the whole address change crap. "Is this your current address?" Bite me, yes it is.

Next was the attempt to get me removed from the store. I knew this was coming too. Congratulations go out to FRED MEYER!!! Cops were trying to get a manager to get me removed from the store for open carrying. Fred Meyer managers wanted none of it, and walked away from the officers. Officer dog boy then went back to the bank to see if he could get the manager there to ban me from open carrying at the bank. He didn't know Washington Mutual corporate policy but made a guess it was against open carrying, (I think the officer encouraged him some on this one). So, they had the bank manager come over and ask me to carry it concealed in his store, (he didn't realize it but he actually said, "you have no right to self-defense in our store.") That being said, officer dog boy gave me my gun back and the army marched out to go protect the donut shop.

Citizen's in Washington State don't have a right to carry concealed, we have to ask permission to do that, (although in conversation with one of the other officers he was proud of the fact he was above the law and didn't need a CCW permit, "I'm a police officer, I don't need a CCW when I am off duty." Thank you sir. Would you like me to fetch your slippers for you?

This letter is going out to Washington Mutual, although, having already been banned from open carrying at this Washington Mutual, I handed my gun to my wife and went back and closed my account. My wife on the other hand was not banned from open carrying. Hopefully she will get the courage up to open carry when she goes in to close her account as well. Before everyone else does the same, I have sent this letter to Washington Mutual:

I want to make sure that this is actually corporate policy instead of made by one of your branch managers. Does Washington Mutual acknowledge the right of customers to Open Carry, in branch offices? Open Carry meaning carrying a handgun unconcealed. I had a manager decide that concealed was ok, but he gave the impression that corporate had policy against open carrying. I live in Washington state where the state acknowledges self-defense, by the right to open carry. Please give me a definitive corp. policy, so I don't jump the gun, (so to speak). Thank you.

Sincerely,
Jason Hartney

UPDATE: Smartly, the Washington Mutual corporate folks already got back to me and said this decision is left up to the branch managers. So, it is only the Ellensburg Branch that I have been banned from open carry.

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Old May 22, 2004, 09:19 PM   #2
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I am a life-long resident of Washington State and have been carrying for many years under a CPL. I am very familier with the gun laws in this state. Please direct me to which RCW or WAC allows me to open carry. I hope that you are not relying on the fact that just because there is no wording that actually says "Do not carry openly", that means you are able to.
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Old May 22, 2004, 09:27 PM   #3
Fishorman
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the law

The law does not work that way. You need not have a list of all of the rights for them to be rights. Law doesn't create rights it only takes them away. So, until there is a law that says I cannot carry openly, this state will remain a legal open carry state... Which is exactly what the officer told me today, "it is legal to open carry."

Update: Had the prosecutor relay this information to me as well. Of course, other Washington prosecutors may read from a different law book. So, just go on keeping them hidden, and the public remains ignorant.

Last edited by Fishorman; May 22, 2004 at 11:49 PM.
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Old May 22, 2004, 09:41 PM   #4
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Had the same problem in Barnes & Noble in Manchester, NH coming up on two months ago. I posted the details in another thread in this forum.

I got the same condescending BS from five officers, just like you did, and filed a formal complaint with the police department. At least you saw them coming, with me they snuck up on me and grabbed me. The IAD is still looking into it, last me or my attorney heard.

Might be time to file a lawsuit, on the 2-month anniversary of the incident.
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Old May 22, 2004, 10:02 PM   #5
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Citizen's in Washington State don't have a right to carry concealed, we have to ask permission to do that...
I have to disagree with this. Washington is a "shall issue" state in regards to CCW because the WA constitution does recognize the right to keep and bear arms. The only reason that they can refuse you a CCW is if you have a criminal record or have been declaired mentally incompetent. That is the purpose of the backround check.

If you don't like the idea of going through the backround check and wish to open carry: more power too ya'! But I think that most WA residents don't consider it an infringement to do so and would consider the constant hassle of open carry to be a pain.

I must admit, it's been a long time since I've seen someone open carry. I wasn't even sure that it was still legal. It sure does stir up a fuss though!
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Old May 22, 2004, 10:03 PM   #6
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Old May 22, 2004, 10:10 PM   #7
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Welcome to The Firing Line, Fishorman! I think you'll like it here. You impress me as a Second Amendment "Purist." Our cause needs more good people like you, IMO.

Cactus - I think Jason's point is that if the state issues you a permit to carry concealed, then they have the right to take it away. (Permit comes from the same root word as permission) If it can be taken away, it isn't a right.
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Old May 22, 2004, 10:13 PM   #8
NINEX19
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I do agree with you to some extent on the "You need not have a list of all of the rights for them to be rights. Law doesn't create rights it only takes them away." However, just like the harassment you received, that is what I do not want. I am usually not in the mood to have a confrontation with a group of police let alone one. I do not want to be the test case for Washington State law. I live on the West side and I see the you live on the East. We all know that there are many, many political and social differences between them both. I don't think that I would get too far in Seattle, Tacoma, Lynwood, Everett, etc. openly carrying.

The fact that there are no laws that do not specifically allow NOT carrying openly, does not mean there are not laws about, disturbing the peace, inciting a riot, or making treating gestures. Carrying openly around here would get me arrested for one of these types of secondary crimes.

Get Dave Workman's book "Washington State Gun Rights and Responsibilities". He is considered an authority on the laws of this state with reguards to guns.


http://www.defensetactics.com/washington_gun_rights.htm

Also try looking at Packing.org

Washington State is NOT an open carry state. Most websites and authorities I know that address this issue, agree.
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Old May 22, 2004, 10:32 PM   #9
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As has been said many times before.

"A right will remain a right when enough people continue to believe it is a right."

Maybe it is too late for Western Washington. Government will do their best to make it into a disturbing the peace issue. Can't rule over the citizen's if they aren't breaking a law. But someone that wants to be re-elected will have to prosecute that law.

Since we are still one state though, we operate by the same set of laws. So setting a precedent for open carrying in Eastern Washington might just help the gun issue with all those "gun banners" living in Western Washington.

Besides that open carrying is the right thing to do. 28 years, (my lifetime), of hiding guns has got us where? AWB renewal proposed by a REPUBLICAN president? WT???

Last edited by Fishorman; May 23, 2004 at 06:16 PM.
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Old May 22, 2004, 10:33 PM   #10
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As others have said, when rights are turned into "privileges", they can be easily taken away. Most CCW laws enforce current State rights. Many simple turn those rights into a privilege. Slippery slope there.

Welcome Fishorman. I think we like you.
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Old May 22, 2004, 11:00 PM   #11
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Cactus you said:
Quote:
The only reason that they can refuse you a CCW is if you have a criminal record or have been declaired mentally incompetent.
That background check also costs money! So now only those with money can carry concealed. Really doesn't sound much like a right. But, it does sound like a great way to keep track of the armed sheep, (for later use).

Starts to sound less and less like a right and in the eyes of great-great grandfathers wouldn't come close.

Besides, how many criminals or mentally incompetent has this "background check", (gun nut register) stopped from conceal carrying? I'm not feeling any safer.

Conceal carry is still a right, but it is only a right for the criminals. But then our founding fathers were a bunch of criminals, too.
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Old May 22, 2004, 11:09 PM   #12
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This requires meditation

You know, whenever I read about guys in Arizona running around with a 1911 on thier hip, it has always made me jealous.

I can see the point of view of those against open carry...don't rock the boat, and also the 'You are giving away your advantage that having a concealed gun gives you' argument.

That being said, I have always felt that if more 'normal' people practiced open carry, and non-shooters got used to seeing 'normal' folks with guns on thier hips, then atittudes would change for the better.

And by normal, I mean 'their neighbors'. Everyone knows their neighbors are normal. Wachos only live in other towns.

But, as a Washington Resident, I guess I have always thought like NINEX19 feels. You know...the laws don't say 'open carry' is okay, so that must mean it's not.

Maybe I'll need to rethink that. Some one once told me that open carry in Washington could get you arrested for 'Brandishing'. Perhaps I should contact the Kitsap County Sherrifs Office and try to get their informed opinion of the matter.

This is an election year, after all.

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Old May 22, 2004, 11:11 PM   #13
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Old May 23, 2004, 01:04 AM   #14
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Cactus - I think Jason's point is that if the state issues you a permit to carry concealed, then they have the right to take it away. (Permit comes from the same root word as permission) If it can be taken away, it isn't a right.
The only way a CCW can be revoked in WA is if you have done something to make you ineligable to own a firearm. The WA constitutions provisions regarding gun rights is stronger than the federal constitutions.

The constitution would have to be amended, by a vote of the people, in order for revokation without due cause to happen. Besides, if they could revoke your right to carry concealed at any time, what makes you think they wouldn't revoke the right to open carry as well?

The police can also run a records check on you if they see you open carry and give them probable cause, or just stop you and ask you questions as Fishorman discovered. The courts will uphold that every time.

Apparently Fishorman doesn't mind the lost time and hassle. Good for him! But I have better things to do with my time and for the cost of a box of ammo every four years, I can avoid the hassle. If someone thinks I'm shredding the constitution, fine; I won't lose any sleep over it.

Voting is also a right, so should we not have to register? I've never once heard that arguement. In fact, most conservatives and libertarians I've talked too, think that voters registration should be made MORE stringent, not less.
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Old May 23, 2004, 01:25 AM   #15
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The relevant RCW in this case is 9.41.270:

Quote:
RCW 9.41.270
Weapons apparently capable of producing bodily harm -- Unlawful carrying or handling -- Penalty -- Exceptions.

(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.
And here is the only case ever decided in Washington that tested said RCW:

Quote:
75 Wn. App. 118, STATE v. SPENCER
July 1994
[No. 32136-6-I. Division One. July 25, 1994.]
STATE v. SPENCER
THE STATE OF WASHINGTON, Respondent, v. RANDOLPH J. SPENCER, Petitioner.
[1] Statutes – Validity – Presumption – Burden of Proof – Degree of Proof. A statute is presumed to be constitutional. A party challenging the constitutionality of a statute has the burden of proving that it is unconstitutional beyond a reasonable doubt.
[2] Statutes – Construction – Constitutional Construction. If possible, a court will construe a statute so as to render it constitutional.
[3] Weapons – Possession – Right of Possession – Regulation – Police Power. The right to bear arms guaranteed by Const. art. 1, § 24 is subject to reasonable regulation by the State under its police power. The regulation must be reasonably necessary to protect the public safety, health, morals, and general welfare and must be substantially related to the legitimate ends sought.
[4] Criminal Law – Statutes – Vagueness – Areas of Uncertainty. The fact that there may be some areas of uncertainty in the application of a statutory definition of a crime does not render the statute unconstitutionally vague.
[5] Weapons – Intimidation With Weapon – Validity – Right To Bear Arms. The criminal prohibition against carrying or displaying particular types of weapons in a manner that warrants alarm for the safety of other persons (RCW 9.41.270(1)) does not unconstitutionally infringe on the right to bear arms (Const. art. 1, § 24).
[6] Criminal Law – Statutes – Vagueness – Test. A statutory definition of a crime is unconstitutionally vague in violation of due process only if it (1) fails to provide adequate notice to citizens of which conduct is prohibited or (2) fails to contain ascertainable standards to prevent arbitrary enforcement.
[7] Criminal Law – Statutes – Vagueness – Construction of Language. A criminal statute is not unconstitutionally vague if the challenged term or phrase can be made definite by a reasonable construction.
[8] Weapons – Intimidation With Weapon – Validity – Vagueness. For purposes of the criminal prohibition against carrying or displaying particular types of weapons in a manner that warrants alarm for the safety of other persons (RCW 9.41.270(1)), a reasonable person standard is incorporated into the phrase "warrants alarm" and the statute is not unconstitutionally vague.
[9] Criminal Law – Statutes – Vagueness – Particular Conduct – Within Constitutional Core. When a criminal defendant's conduct falls within a criminal statute's constitutional core, a court will not speculate as to the vagueness of the statute as applied to other conduct.
[10] Criminal Law – Statutes – Overbreadth – Conduct – Amount of Constitutionally Protected Conduct. A criminal prohibition that affects only behavior and not speech is not unconstitutionally overbroad unless its overbreadth is both real and substantial in relation to its plainly legitimate sweep.
[11] Weapons – Intimidation With Weapon – Validity – Overbreadth. RCW 9.41.270(1), which prohibits carrying or displaying particular types of weapons in a manner that warrants alarm for the safety of other persons, is not unconstitutionally overbroad.
Nature of Action: Prosecution for unlawfully displaying a weapon.
District Court: The King County District Court, No. K28362, Sue Freeborn, J. Pro Tem., entered a judgment of guilty on November 12, 1991.
Superior Court: The Superior Court for King County, No. 92-1-01433-1, Patricia H. Aitken, J., on December 29, 1992, affirmed the judgment.
Court of Appeals: Holding that the crime of unlawfully displaying a weapon does not unconstitutionally infringe on the right to bear arms and is neither unconstitutionally overbroad nor unconstitutionally vague as applied to the defendant's conduct, the court affirms the judgment.
Adam Shapiro of Washington Appellate Defender Association, for petitioner.
Norm Maleng, Prosecuting Attorney, and Roger S. Rogoff and Janet L. Capps, Deputies, for respondent.
Richard B. Sanders, amicus curiae.
COLEMAN, J. – Randolph J. Spencer was granted discretionary review of his conviction for one count of brandishing a weapon. He argues that (1) RCW 9.41.270 violates his right to bear arms under the Washington State Constitution, (2) the statute is unconstitutionally vague, and (3) the statute is unconstitutionally overbroad. We affirm.
On August 19, 1991, at approximately 10 p.m., Spencer was taking a walk with his dog. He carried his AK-47 semiautomatic rifle, with the clip attached, on his shoulder as he walked. «1»

«1» Spencer was walking in a residential area near South 260th Street and Pacific Highway South, in King County.

A passing motorist, Verrill Olsen, saw Spencer and noticed that he was "walking briskly and carrying a rifle". Olsen became concerned when he saw that the rifle had a clip attached to it. He approached some firefighters who were investigating a propane leak nearby and suggested that they call the police. Olsen then saw police officer Heather Wall and told her that a man was walking down the street with a "military rifle slung on his shoulder".
Several firefighters also observed Spencer walking with his rifle and became concerned. Eric Tomlinson saw Spencer walking "rather fast with his head down". Tomlinson saw the rifle and noticed that it had a clip in it. He became alarmed "[b]ecause there was no obvious reason to have a weapon like that, given the surroundings". He also thought that the manner in which Spencer carried the rifle was threatening.
Officer Wall approached Spencer in her vehicle and noticed that he was carrying a rifle in "a hostile, assaultive type manner with the weapon ready". She also noticed that the rifle had a clip attached to it. Wall stopped her vehicle at a distance from Spencer and ordered him to put the gun down and walk toward her with his hands in the air. She then took him into custody, searched him, and found a .45-caliber automatic pistol under his jacket, as well as a valid concealed weapons permit.
Spencer was arrested and charged with unlawfully displaying a weapon, as prohibited by RCW 9.41.270. The District Court found him guilty, and the Superior Court affirmed the conviction. This court granted Spencer's motion for discretionary review.
We initially consider whether RCW 9.41.270 unconstitutionally restricts the right to bear arms under the Washington State Constitution.
[1, 2] Former RCW 9.41.270(1) provides, in part:
It shall be unlawful for anyone to carry, exhibit, display or draw any firearm . . . 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.
A statute is presumed constitutional, and the party challenging it has the burden of proving that it is unconstitutional beyond a reasonable doubt. State v. Maciolek, 101 Wn.2d 259, 263, 676 P.2d 996 (1984) (citing State v. Dixon, 78 Wn.2d 796, 479 P.2d 931 (1971); State v. Rhodes, 92 Wn.2d 755, 600 P.2d 1264 (1979)). If possible, a court will construe a statute so as to render it constitutional. State v. Luther, 65 Wn. App. 424, 427, 830 P.2d 674 (1992) (citing State v. Reyes, 104 Wn.2d 35, 41, 700 P.2d 1155 (1985)).
[3] Article 1, section 24 of the Washington Constitution provides:
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. «2»
continued . . . .
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Old May 23, 2004, 01:27 AM   #16
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Quote:
«2» Spencer correctly argues that an analysis under the criteria stated in State v. Gunwall, 106 Wn.2d 54, 720 P.2d 808, 76 A.L.R.4th 517 (1986) demonstrates that the Washington Constitution grants a broader right to bear arms than the United States Constitution, which provides: "A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed." U.S. Const. amend. 2; see State v. Rupe, 101 Wn.2d 664, 706, 683 P.2d 571 (1984) (state provision is facially broader than federal provision). Therefore, this case will be analyzed under the Washington Constitution.

Although this provision is stated in absolute terms, the right to bear arms is subject to reasonable regulation by the State under its police power. State v. Rupe, 101 Wn.2d 664, 707 n.9, 683 P.2d 571 (1984). However, the regulation must be reasonably necessary to protect the public safety, health, morals, and general welfare and must be substantially related to the legitimate ends sought. Second Amendment Found. v. Renton, 35 Wn. App. 583, 586, 668 P.2d 596 (1983) (citing Homes Unlimited, Inc. v. Seattle, 90 Wn.2d 154, 158, 579 P.2d 1331 (1978)).
In Second Amendment Found., the appellants challenged a provision in the Renton Municipal Code which prohibited the carrying of firearms in places where alcoholic beverages are dispensed by the drink. The court upheld the ordinance, concluding that it was narrowly drawn because it prevented the carrying of firearms only in bars. «3»

«3» The ordinance contained an exception for restaurants that served alcoholic beverages.

In addition, the court reasoned, the statute promoted public safety by reducing the possibility of armed conflict between people under the influence of alcohol. Thus, the court upheld the ordinance, concluding that the public's interest in safety outweighed the individual's right to bear arms in public places where liquor is served. Second Amendment Found., at 586-87.
Spencer attempts to distinguish Second Amendment Found. by arguing that the statute in this case constitutes an effective ban on the right to bear arms in self-defense from past or future aggression. He also argues that the statute here is overly broad because it is unclear which weapons will cause alarm. Thus, he argues, people will decide not to carry any weapon for fear of prosecution, and the statute will have an undue chilling effect on the constitutional right to bear arms. Furthermore, he argues, the statute does not promote public safety because "preventing alarm" is an overly ambiguous objective.
[4, 5] We do not find these arguments persuasive. First, the statute does not prevent a person from carrying weapons in self-defense. Weapons may be carried in response to "presently threatened unlawful force by another". RCW 9.41.270(3)(c). If there is no present threat, weapons must be carried in a manner that does not warrant alarm in others. The statute does not prohibit the ownership of weapons, and it limits the possession of certain weapons only when they are carried or displayed in a manner and under circumstances that warrant alarm. Thus, for example, the statute does not prohibit an individual from legally carrying a concealed weapon such as the .45-caliber pistol Spencer carried under his jacket. We conclude that the statute's restriction on an individual's right to bear arms in self-defense is minimal. The statute is narrowly drawn and demonstrates the Legislature's awareness of and concern with preserving the rights of the individual.
In addition, the statute does not have an undue chilling effect on the right to bear arms. As the Superior Court found, the statute only prohibits the carrying or displaying of weapons when objective circumstances would warrant alarm in a reasonable person. «4»

«4» These circumstances may include, as in the present case, the fact that the weapon is being carried in a residential neighborhood, the time of day, the urban environment, the manner in which the weapon is carried, the size and type of weapon, and the fact that the weapon has a clip visibly attached.

Thus, the restriction applies only in a limited number of situations. Furthermore, the prohibition is not so vague that it would prevent persons of common intelligence from ever carrying a weapon on the street. In the vast majority of situations, a person of common intelligence would be able to ascertain when the carrying of a particular weapon would reasonably warrant alarm in others. Although some areas of uncertainty may exist, these potential "gray areas" of the statute are small and do not render it unconstitutional. Cf. Maciolek, at 265 (possible areas of disagreement do not render statute unconstitutionally vague). «5»

«5» In this regard, we note that the present case, in which the Defendant was carrying a visibly loaded AK-47 rifle in an assaultive manner at night in a residential area, does not fall anywhere near a potential "gray area" in the statute.

Finally, contrary to Spencer's argument, the statute does promote public welfare and safety. People have a strong interest in being able to use public areas without fearing for their lives. The statute protects this interest by requiring people who carry weapons to do so in a manner that will not warrant alarm. Therefore, we conclude that the statute is reasonably necessary and substantially promotes the public welfare.
To summarize, we have determined that the statute minimally restricts the rights of the individual, it is narrowly drawn, and it promotes a substantial public interest. This public interest in security, and in having a sense of security, outweighs the individual's interest in carrying weapons under circumstances that warrant alarm in others. For these reasons, we hold that the restriction in RCW 9.41.270 on the right to bear arms is not unconstitutional.
We next determine whether RCW 9.41.270 is unconstitutionally vague as applied to Spencer's conduct.
[6] The text of former RCW 9.41. 270 is set forth, in part, supra. A statute is unconstitutionally vague and violates due process if it (1) fails to provide adequate notice to citizens of which conduct is prohibited or (2) fails to contain ascertainable standards to prevent arbitrary enforcement. State v. Maciolek, 101 Wn.2d 259, 264, 676 P.2d 996 (1984) (quoting State v. Foster, 91 Wn.2d 466, 474, 589 P.2d 789 (1979)). A statute that is not vague on its face may nonetheless be vague as applied to conduct that falls outside the statute's "constitutional core". Maciolek, at 266 (citing Bellevue v. Miller, 85 Wn.2d 539, 541, 536 P.2d 603 (1975)).
In Maciolek, three petitioners challenged RCW 9.41.270, arguing that it was unconstitutionally vague. In one case, when the petitioner's doctor refused to give him a prescription for Percodan, the petitioner became angry and pulled back his jacket, revealing a handgun. The doctor was frightened and immediately wrote the prescription. In another case, the petitioner, a juvenile, fired his BB gun at two children and took one of their bicycles. In the third case, the petitioner, a juvenile, got into an argument with a woman and chased her with a knife. Maciolek, at 261-62. The petitioners argued that the statute was unconstitutionally vague because it contained an unclear definition of weapons and an unclear description of the conduct prohibited. Maciolek, at 264.
The Supreme Court rejected these arguments and held that the statute was not unconstitutionally vague. Maciolek, at 269. The court reasoned that the average person would know that the statute prohibited using a weapon to threaten another. Maciolek, at 265. In addition, the court concluded that the statute was directed at identifiable criminal conduct, had a reasonably definite focus, and did not encourage arbitrary enforcement. Maciolek, at 268-69. Furthermore, the court held, the statute was not vague as applied because the petitioners' conduct fell within the statute's constitutional core. Maciolek, at 266.
continued . . . .
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Old May 23, 2004, 01:28 AM   #17
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Spencer argues that this case is distinguishable from Maciolek because, unlike the petitioners in that case, he did not intend to threaten anyone and was convicted under a different portion of the statute. Spencer is correct that the Maciolek holding does not apply to this case. However, the court in Maciolek did address the "warrants alarm" portion of the statute in a footnote and essentially rejected Spencer's claim. See Maciolek, at 268 n.3.
In the footnote, the Maciolek court stated that because the term "warrants alarm" was qualified by specific weapons, it was sufficiently definite to prevent ad hoc determinations of criminality. The court contrasted the present statute with the ordinance in Bellevue v. Miller, supra, which prohibited wandering or prowling that warrants alarm for the safety of persons or property. The court reasoned that the "warrants alarm" portion of the Miller statute was qualified only by the words "wandering or prowling", both of which are inherently vague. Thus, the court concluded, because the specification of weapons in the present statute gives it a narrow scope, it is distinguishable from the statute in Miller and is not unconstitutionally vague. «6»

«6» Furthermore, the court reasoned, even if the phrase "warrants alarm" in the present statute could be considered vague, it can be interpreted narrowly for purposes of upholding the statute. The court then stated:
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.
Maciolek, at 268 n.3.

[7] Spencer urges this court not to follow the reasoning in Maciolek because it is only dicta. He also urges this court to reject the Superior Court's view that RCW 9.41.270 sets a "reasonable person" standard for determining whether the statute has been violated. However, the general rule is that if a term or phrase in a statute can be made definite by a reasonable construction, the court must narrowly construe it and uphold the statute. Maciolek, at 268 n.3 (citing State v. Martinez, 85 Wn.2d 671, 538 P.2d 521 (1975), overruled on other grounds by State v. Smith, 93 Wn.2d 329, 610 P.2d 869, cert. denied, 449 U.S. 873 (1980)).
[8] We agree with the Supreme Court that the weapons limitation gives the statute a sufficiently narrow scope. In addition, we adopt the Superior Court's conclusion that a reasonable person standard is incorporated into the phrase "warrants alarm". When viewed with these two limitations in mind, it is clear that the statute is sufficiently definite to (1) provide defendants with adequate notice of prohibited conduct and (2) provide adequate enforcement standards. This construction is reasonable and in accord with the plain language of the statute. «7»

«7» As the State points out, the Legislature's use of the word "warrants" in the statute implies that there must be a sufficient objective basis for the alarm, i.e., circumstances must be such that a reasonable person would be alarmed.

[9] 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.
We also conclude that a person of common intelligence would realize that carrying an assault rifle under such circumstances and in such a manner would warrant alarm in others. Whether different circumstances would warrant alarm is a question that must be left open; here, however, Spencer's conduct falls squarely within the core of the statute. Therefore, we reject Spencer's argument that the statute is unconstitutionally vague.
[10] Finally, we decide whether RCW 9.41.270 is overbroad. In the free speech context, a statute is overbroad if its prohibitions reach constitutionally protected free speech activities. Seattle v. Huff, 111 Wn.2d 923, 925, 767 P.2d 572 (1989). If a statute regulates behavior, as opposed to pure speech, it will not be overturned unless the overbreadth is "'both real and substantial in relation to the ordinance's plainly legitimate sweep.'" Seattle v. Webster, 115 Wn.2d 635, 641, 802 P.2d 1333, 7 A.L.R.5th 1100 (1990) (quoting Seattle v. Eze, 111 Wn.2d 22, 31, 759 P.2d 366, 78 A.L.R.4th 1115 (1988)), cert. denied, 500 U.S. 908 (1991).
[11] Spencer argues that RCW 9.41.270 improperly narrows an individual's right to bear arms in self-defense. However, as discussed, supra, we have concluded that the statute's restriction on self-defense is minimal because (1) weapons may be carried in response to "presently threatened unlawful force by another" and (2) if there is no present threat, weapons may be carried in a manner that does not warrant alarm in others. We have further determined that the statute is narrowly drawn to promote a substantial public interest and that the statute's language demonstrates the Legislature's concern with preserving the individual's right to bear arms in self-defense. For these reasons, we reject Spencer's claim that the statute is unconstitutionally overbroad.
The judgment and sentence are affirmed.
PEKELIS, A.C.J., and SCHOLFIELD, J., concur.
END.
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Old May 23, 2004, 07:09 AM   #18
NINEX19
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Fishorman
I do not want to come off sounding rude or unwelcomming. That is not me as a person. We (I) are glad that you are a part of this forum. I am always happy when I see another name from my home state.

I would that open carry be acceptable and available to the "average, normal" person as you say it is. It will only bring much wasted time and harassment, neither of which I like.

I think that it is great that you are exercising what you think you have as a right. My only fear is that incidents like this through a black cloud over law abiding, pro-gun people and actually makes our cause loose ground. There are correct ways to go about making a change in public perception and laws. Just doing it does not lean well for either.

Like I said before. the west side is too far gone to even think about experimenting with this. I am 99% sure I would be arrested for brandishing or something of that line. That would not be a good thing for pro second amendment rights. Most of this side of the Cascades would see the news story as "just another gun wacko" or even know days, possibly even worse.

If it is acceptable where you are at, great; go for it. Get other locals there to do it consistantly and it will become the norm. Branch out from there like a rock being thrown in a calm pond.

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Old May 23, 2004, 07:38 AM   #19
Fishorman
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Open carry is available and acceptable on this side of the mountains, and I intend to keep it that way. I have seen open carrying by more then one persons in recent years. It WAS in Okanogan County, but it also was acceptable. I seem to be welcome enough here in Ellensburg. I have carried across this town about 10 times, and only gotten the third degree twice. If I wasn't the only one doing this, it might be more effective. But if it ends up being only me, so be it. Maybe your town/city doesn't except it, but mine still has a chance. All the more reason this state should be split down the cascades.

By the way, while hiking out in the woods, what law gives me the right to carry openly? NONE. That's right none, cause the right is implied. Take a walk on a dusty horse trail around here and tell me that the right doesn't still exist.

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Old May 23, 2004, 08:25 AM   #20
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By the way, while hiking out in the woods, what law gives me the right to carry openly? NONE. That's right none, cause the right is implied.
That's right. We have to kill this notion that all acts by the citizen are illegal unless specifically authorized by law. That rule applies to the government only.

The Spencer case is also available at my website, fullerzone.net. Might be easier to read there than in this thread.
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Old May 23, 2004, 08:31 AM   #21
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Voting is also a right, so should we not have to register? I've never once heard that arguement. In fact, most conservatives and libertarians I've talked too, think that voters registration should be made MORE stringent, not less.
How much does it cost to register to vote?
What class or training course do you have to take to be able to APPLY for the right to vote?
Can your right to vote be suspended for voting after a beer or two?
Can it be revoked if your wife ACCUSES you of domestic violence?
Can the state scrutinize how you vote or if you make others aware of your vote?
All voters registration does is prove you are who you say you are and live where you say you liuve, both extremely important aspects of the voting process.
All CCW does is attach a condition to a god given right.

Would I do what Fishorman has done? Probably no I would most likely wimp out and opt for security and comfort over true freedom and inconvience myself.
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Old May 23, 2004, 10:35 AM   #22
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And imagine how fast state law would get changed if the law prevented everyone subject to a restraining order from voting. It wouldn't last a month. The fact that revocation of the RKBA is permitted without due process (both sides) shows just how marginalized the RKBA has become.
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Old May 23, 2004, 11:09 AM   #23
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Gee, I do that here and all I get is yawned at.

Good for you, sir. Maybe more will follow your example in standing up for their civil rights. No more back of the bus for us!

Welcome to TFL!
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Old May 23, 2004, 12:44 PM   #24
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Welcome Jason .... glad to see someone join up with above average cojones!

PA is in same situation .. nothing says it AIN'T possible to open carry but ... as in so many places ..... it won't always avoid the panic buttons being hit by the paranoids when they see it. Local paper had something in it very recently re a guy carrying open and accused of something like ''intimidation'' .... it sure ain't easy these days excercizing rights but ... as so many say - if they are never used the sorta ''melt away''.
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Old May 23, 2004, 01:25 PM   #25
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Well, I am not sure what happened last night/this morning, but I was unable to make it back into the forums for quite awhile. So, I was forced to only post over at my blog... I will now copy that post here. By the way, thanks for all the support/information. Specifically, those not really in favor of me open carrying. Like I said in my original post I still don't think keeping the "good" guns hidden is really helping the cause either. Many people have seen me with my handgun; cashiers, customers, and sadly police. Now, I for one am always very friendly, (well, not with the police so much), and the last thing they usually notice is the gun. I can't imagine that after walking away from those folks, they had a bad impression about guns, (or this gun nut). [The police are another matter. They know handguns are good and legal, but still they want the monoply on them. In that way they have choosen their side.]

Obviously, some of sheep have gotten a bad impression and 911 has been called. But, two 911 calls out of I'm guessing around 50 people seeing a handgun and thinking nothing of it. It still might not be enough to keep up with main stream media, but I am only one person.

Here's what I was thinking this morning:
RCW 9.41.270

Weapons apparently capable of producing bodily harm -- Unlawful carrying or handling -- Penalty -- Exceptions.

(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.

(2) Any person violating the provisions of subsection (1) above shall be guilty of a gross misdemeanor. If any person is convicted of a violation of subsection (1) of this section, the person shall lose his or her concealed pistol license, if any. The court shall send notice of the revocation to the department of licensing, and the city, town, or county which issued the license.


I am just being informed of this 9.41.070, (of course, after the fact). I have already walked thru this town to the gun store to buy a clip and was approached by officer's in the gun store. The local prosecutor stopped by the store a few days later to find out what had happened and saw nothing wrong to issue a violation of law. Whether or not that is because he is gun friendly or because he couldn't see a way to apply 9.41.070, I am not sure.

That case is over with either way. The case now at hand is someone calling 911 because they got scared. The bank manager might have just wanted an officer there while he asked me not to return to the store open carrying, (but that's not what it felt like). Either way this is something the prosecutor might try turning into a 9.41.070 issue.

Having carried the gun across town, should mean something. Having gone to the bank before carrying, should mean something. (I am welcomed by the local Bi-Mart manager). Going to the bank to withdraw $400 should mean something. But, I have no way of controlling other's attitude about guns and their fear.

It seems the law is written for those actually doing some kind of action. Such as uncovering a concealed weapon, but it is written just vagually enough to piss me off.... ugh... anyway... I guess time will tell.

"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."

That is what might try to get proven beyond a reasonable doubt. Manifests an intent to intimidate seems like a big stretch. "Warrants alarm" not sure what the heck that could mean... more later

Update: Ok, I have thought about it... read up on it and decided everyone is right. This law in effect makes this a very, very unfriendly state to open carry, if not outright illegal in most situations. But, this poorly written law is not going to be the reason I walk away from this issue. This law was not written with the intent of taking away the RIGHT to open carry. It will not be the reason I kiss the king's ars, pay more taxes, and submit to proving I am innocent before I can have a permit for the "right" to conceal carry...

I will continue to open carry. I have drawn a line in the sand. We have allowed ignorance of the sheep, because we haven't taken a stand, when we could have... I was one of the sheep then, so maybe, it's too late for me... I risk being the unarmed civilian, or the armed criminal for the rest of my life. Big deal! Laws have surrounded us making us all criminals... Keep tiptoeing if you like, but, that is not the respect that the law abiding gun carrying civilian deserves.
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