Not wanting to beat a dead horse I just had to revisit the issue of carrying firearms in Oak Harbor Parks, Marina and City Council Chambers.
Is this legal?
The answer is, that depends, it depends on whether you are causing “alarm” or not.
If you are carrying a concealed weapon and it remains concealed you are OK. As for open carry that question may still be open. Carrying an “assault rifle” from what I can find out may lead to prosecution under RCW 9.41.270.
RCW 9.41.270 states:
(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.
There has been a Washington State Supreme Court decision that speaks to this issue in their decisions.
In State vs Spencer, 75 wash.app. 118 it was found that carrying an assault rifle with a clip inserted down a city street was indeed a violation of RCW 9.41.270.
A few excerpts from the decision:
“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.
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”.”
He was prosecuted for unlawfully displaying a weapon and found guilty. He appealed to the State Supreme Court and they upheld the decision. In the decision the Justice stated below:
“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.”
So if you do carry a weapon openly and do “cause alarm” in others you could very well find yourself in the same predicament as the person in State vs Spencer.
When the issue concerning the firearm ordinances were before the City Council this possible issue was not known, at least to me or anyone else I talked with. And here is the problem. It could, at that time, have been possibly been considered by some in the audience “alarming” and that would place the firearm holder under jeopardy under RCW 9.41.270.
Now I am NOT a lawyer and I am not trying to pretend to be I just thought I would throw this out for so others would know also…
Sources:
RCW 9.41.270
Weapons apparently capable of producing bodily harm — Unlawful carrying or handling — Penalty — Exceptions.
http://apps.leg.wa.gov/rcw/default.aspx?cite=9.41.270
THE STATE OF WASHINGTON, Respondent, v. RANDOLPH J. SPENCER, Petitioner.
http://www.impsec.org/~jhardin/gunstuff/legal/State_v_Spencer.pdf
Tags: 2nd Amendment, Article1 Section 24 Right To Bear Arms, Washington State Constitution Article 24
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Interesting. I have no problem with concealed weapons so long as the person(s) carrying have gone through the process for a Concealed Weapons Permit. I do however think it was inappropriate for people to show up at the State Capitol and Oak Harbor City Council meetings with a rifle strapped to their shoulder and with issue put to rest….show up at another council meeting with a rifle strapped to their shoulder. Point has been made, corrective action taken, why can’t we move on and let the Mayor and Council Members tend to issues that concern all citizens of Oak Harbor…alot of things need to be done that benefit the city as a whole…lets move on…..
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It was more to the point of whether someone can be charged with a crime for what many think is legal. It is more than just an Oak Harbor issue…
I certainly would not want to be arrested for doing something that I think is legal…
…This is news to me so I figured it would be news to others…
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Concealed means concealed. ;-)
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FWIW, the Washington open carry statute originated in the 1960s when the Black Panthers were doing “armed protests” in California.
In 1969, RCW 9.41.270 was passed in light of the intimidating actions of the Black Panther Party in both the State of California and in Seattle .
Analysis of the legislative intent behind the bill and final law indicated that the Washington State Legislature never intended this to be a gun control bill, and stripped out in committee provisions of the bill which would have prohibited carry within 500 feet of any “public building” for fear it would ensnare a peaceable open carrier walking nearby, thereby violating a persons rights under Article 1, Section 24 of the Washington State Constitution.
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Bellevue Police Department Training Bulletin.
I am pleased to announce that Bellevue PD has issued a training bulletin
as to the legality of open carry. I have copied the pertinent parts
below:From: Simonton, Patricia
Mr. Wilson,
Thank you for bringing this training issue to our attention. Below is
the training material that was sent to our Corporals to provide at squad
meetings for training.Kyle Aiken
Bellevue Police DepartmentSent: Tuesday, January 09, 2007 11:24 AM
To: PD_CORPORALS
Cc: Mcomber, Christopher G.
Subject: Squad TrainingTo all,
SQUAD TRAININGIt has recently come to our attention that a group calling itself,
“Pacific Northwest Open Carry” and with a spokesman named Lonnie Wilson, has an agenda that deals with the peaceable open carrying of a handgun in a holster.He says that while doing his research to write an informational bulletin for the public and for law enforcement, he asked a number of BPD officers if it was legal to carry a handgun in public, in the open, in a holster.
He says he received a variety of answers, ranging from, it is legal, to, it is a felony, to, you will be stopped and arrested for brandishing.
As a refresher, the Corporals will go over the following:
1. Washington is an “open carry” state for firearms.
This means a person may carry a firearm in an exposed holster unless there is something that makes it specifically illegal.
For example, carrying a weapon onto school grounds or other prohibited places or carrying a weapon by most convicted felons or anyone convicted of a domestic violence crime.
2. Unlawful carrying or display.
RCW 9.41.270 occurs when the person carries or displays a weapon in a manner under circumstances at a time and place that manifests alarm for the safety of persons or with an intent to intimidate.
This is something more than just walking around with an exposed firearm. If there is a dispute for example and one person, while angry, displays the weapon to scare the other person.
3. Carrying without a Concealed Weapons Permit
RCW 9.41.050, occurs when a person carries a CONCEALED pistol on his person and does not have a CWP.A person with a CWP can carry a firearm in a vehicle without having the weapon on his person.
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Cliff….
Show us again where the word “causes” appears in RCW 9.41.270? “Causes Alarm” is not in RCW 9.41.270. You reference State v. Spencer. Well how about State v. Casad (WA State Supreme Court)?
http://forum.nwcdl.org/index.php?action=downloads;sa=downfile&id=9
“Here, the Defendant was carrying a rifle only partially concealed and clearly identifiable as a rifle to the citizen who made the call as well as law enforcement officers, with the barrel pointing towards the ground walking on a main thoroughfare in the City of Port Angeles in daylight hours. In fact there were two rifles, which would likely be less alarming than the carrying of one rifle. Nothing indicates that the manner in which the Defendant was carrying the weapons in any way would give reasonable cause for alarm unless the mere fact of carrying a weapon within the city limits in the open in daylight on a major thoroughfare in and of itself would cause such alarm. The statute does not and, under the Constitution, cannot prohibit the mere carrying of a firearm in public. Therefore the Court finds that the officers at the time of the initial contact had no reasonable articulable suspicion that any criminal activity was occurring.”
All of the circumstances of RCW 941.270 must be met to be convicted:
(1) in a manner,
(2) under circumstances,
(3) and at a time and place
(4) that either manifests an intent to intimidate another or that warrants alarm for the safety of other personsAND again, the word is WARRANTS alarm NOT CAUSES alarm. So, I am carrying an AR-15 slung on my back, with a magazine inserted in the firearm, pushing a child in a swing on a park.
“in a manner” is not met because the firearm is not pointed at anyone.
“under circumstances” is not met because I am not doing anything out of the ordinary while displaying the firearm – I am doing what people normally do in the park.
“at a time and place” is not met, assuming the action is occurring at a normal time when people are in the park.A loaded AR-15 slung on the back may certainly CAUSE plenty of alarm with other patrons in the park. But it does not violate the statute until I actually take some action that is more out of the ordinary than carrying an AR-15. Think about the guy with the rifle in the Oak Harbor City Council meeting. He was not doing anything different than anyone else there except carrying a rifle.
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You are correct that “cause” is not in the RCW. That was my word for describing the causal action of the act of carrying. (see why I am not a lawyer :)
I am just a little more than concerned that our laws are quite vague in this area and obviously open to interpretation. I do not see where in Spencer the 4 point test you gave, which makes common sense, was applied and what the issue was that
causedwarranted the alarm. Was it only because he was in a residential area? Was it only because others were alarmed by his actions?I had a friend a few years back that was charged and convicted under RCW 9.41.270. He had a concealed pistol license and on a hot summer day walked into an auto parts store in Mt Vernon with his shirt unbuttoned which allowed his Colt Mustang to be seen by the store clerk, she wigged out called the police and he was charged and convicted with unlawful display. It took him several years and several thousand dollars to have his rights restored. This process and the underlying causes needs to be understood by people like myself who carry 24/7.
And this brings up another point maybe you can help clarify. Is it true it is not the actual act of displaying that is illegal it is the feelings of others when they are “alarmed” that makes this action illegal? That seems to be the deciding factor here, not the actions of the firearms owner but the feelings of alarm by those who may see that the person is carrying? If this is the case it is troubling. This makes carrying openly legally dependent on the whims of others and not on some fixed rule of law that is broken.
Closer to home. When our fellow citizen Shane walked out of the council meeting seemingly alarmed and afraid by the presence of firearms in the council meeting is this the type of alarm that is outlined in RCW 941.270? And even though open carry is legal, can the presence of an alarmed individual be the deciding point in further prosecution?
The portion of the Spencer decision below is what I find troubling:
“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.”
It is the “in others” that I am concerned with and find troubling. Back in the days it was common to carry rifles on the streets and even to school. Now we find that the political climate has changed and people can be alarmed by the most innocuous acts. This seems to be a very troubling standard when your Rights can be abridged by the feelings of others.
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State v. Spencer:
http://forum.nwcdl.org/index.php?action=downloads;sa=downfile&id=25(1) In a manner:
“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.”
(2) Under circumstances:
“A passing motorist, Verrill Olsen, saw Spencer and noticed that he was “walking briskly and carrying a rifle”.”Eric Tomlinson saw Spencer walking “rather fast with his head down”.
(3) At a time and place:
“On August 19, 1991, at approximately 10 p.m., Spencer was taking a walk with his dog.” (10:00 pm)“the fact that the weapon is being carried in a
residential neighborhood, the time of day, the urban environment,”(4) that warrants alarm for the safety of other persons
“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.”In State v. Spencer, all 4 elements were met. It wasn’t ONLY the fact that Spencer carried a loaded AK-47 rifle. It was the fact that Spencer, himself, was not acting like the rest of the people in his surroundings, that it was 10:00pm in a residential neighborhood, and it was not just a soccer mom with her kids in the park that were alarmed by his actions – it was also several firefighters and a police officer.
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I guess it just seems to me to be too dependent on the judgment of others which is a strange way to enforce such a critically
necessary right. There is certainly not a clear standard so to speak in those 4 tests that is not subject to a personal opinion.
I can certainly see the need for police to be able to stop and question in a case like Spencer but to prosecute on the basis of failing a test which is based on someone elses judgment and standard does seem troubling to me.
In simpler terms would he have been prosecuted if he lived in a more gun friendly city or neighborhood? If not the same standards are not being applied.-
and my personal opinion is that hiding our guns away and catering to the “sensitive” people doesn’t do anything to help change the situation, it just reinforces their irrational fear of guns.
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I agree. But we also must be careful to not cross that legal line. I would much rather choose when and where to cross that line than have it happen upon me through my own ignorance..
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In State v. Casad, none of the 4 elements were met, even though at least one person was alarmed and Casad was found not guilty:
http://forum.nwcdl.org/index.php?action=downloads;sa=downfile&id=9
(1) In a manner:
Casad was carrying two rifles in his arms wrapped in a towel and was merely carrying them – not pointing them at anyone.(2) Under circumstances:
Casad was not doing anything different than would be expected for people to do during the day on a Saturday (I believe) afternoon, he was just walking down the street, with nothing to distinguish him from anyone else, except for carrying firearms.(3) At a time and place:
Again, daytime, downtown. Casad was not out of place because there were likely many other people doing exactly the same NORMAL behavior as Casad – walking down the street, in a business district, during the daytime.(4) that either manifests an intent to intimidate another or that warrants alarm for the safety of other persons:
Even though at least one person WAS alarmed, if Casad had not been carrying the rifles, it is likely that nobody would have been alarmed by any of Casad’s actions or his presence. The fact that the presence of a firearm DOES alarm some people is not enough to violate the statute.One must also remember that when a person is convicted of a crime, it must also be ascertained exactly how hard did the defendant fight the prosecution? How hard did Cliff’s friend fight the prosecution? How well versed was his lawyer on case law behind RCW 9.41.270? Casad fought his case all the way to the WA Supreme Court and was not guilty. I, personally, have accepted the fine associated with a traffic ticket that I felt I did not deserve just because it would cost me more to appeal the initial hearing than it would to just pay the fine.
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In the case of my friend he did not at the time have the funds to hire an attorney and fight the original charge. It actually turned out much cheaper to have his rights restored some years later than to fight the original charge. If I recall it would have been $10000.00 to retain the attorney and it was $2500.00 to have his right restored. He was successful.
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“Is Carrying Firearms Now Legal In Oak Harbor Parks And Marina?”
Based on recent events, the short answer would be appear to be “yes”.
However, as of today, one wouldn’t know that to be the case if one were to reference Oak Harbor Municipal Code – http://www.codepublishing.com/WA/OakHarbor/ – which STILL says:
“6.12.010 Prohibited activities – Gross misdemeanors.
(1) The following activities are not permitted in city parks:
(h) Displaying or using weapons in the park except in lawful self defense or defense of another;6.14.070 Firearms and fireworks.
It is unlawful to shoot, fire or explode any firearm, fireworks, firecrackers, torpedo or explosive of any kind or to carry any firearm or to shoot or fire any air gun, bows and arrows, B.B. gun or use any slingshot in any park without the written permission of the council. (Ord. 214 § 8, 1965).
6.40.180 Prohibited activities – Gross misdemeanors.
(1) The following activities are not permitted in the marina:
(h) Displaying or using weapons in the marina except in lawful self defense or defense of another;”The above wording is the SAME wording found in the City’s Municipal Code as was delineated in the City Council’s reading packet for the December 04, 2012 meeting, where it was explained as being ILLEGALLY worded.
See: http://www.oakharbor.org/uploads/documents/9123december_4__2012_city_council_agenda_packet.bates.pdf (pages 45-52).
How many weeks does it take the City of Oak Harbor to update text its website?
Or, did the recent EMERGENCY resolution passed by the City Council NOT actually change these pieces of Municipal Code and only APPEAR to do so?
Or, is it the City of Oak Harbor’s position that Municipal Code which appears on their official Government website is simply perennially out-of-date, purposely misleading to the public, and generally erroneous in nature?
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According to Webster’s – “Concealed” means “hide” “to put out of sight” “to keep from another’s knowledge; keep secret. I attended the City Council Meetings and some of the body carrying “exposed” and “rifle” strapped over the shoulder made me feel very uncomfortable. You never know what trips a persons trigger……If a person is carrying and the weapon is :concealed” then I believe they are following the law, otherwise, why does a person have to “OPEN” carry to make others feel UNSAFE….
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“why does a person have to “OPEN” carry to make others feel UNSAFE”
Just as you never know who may be carrying a concealed firearm, it’s also not known whether someone who is open-carrying has a currently valid Concealed Pistol License, but lack of such a license does not prohibit them from open-carry.
The people attending those particular City Council meetings who were exercising their right to open-carry were obviously making a political point about their right to do so. They are not breaking the law simply by doing so.
Shane Hoffmire, for example, expressed how allegedly unsafe he had been in a similar situation at one City Council meeting in a letter to the City COuncil. Personally, I think Shane was grandstanding his “fear”, but, assuming he was sincere in this respect, at a subsequent City Council meeting he seemed perfectly comfortable with the situation.
Sometimes, people simply need to learn not to be scared of things that are not actually scary.
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People who do not carry have rights just like those that carry…if it makes me uncomfortable I’m sure it makes other the same way…
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I have not yet acquired the ability to know how other people feel about things just because I feel one way about them. Good for you to know this about other people. Tell me, please, how do I feel right now, when writing this?
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During those meetings at the City Council meeting, if one person who was carrying an “OPEN” loaded gun and did not like what he/she heard and got upset (as one person did), they tripped the tripper, how many could have been hurt people of that error in judgement.
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Concerned,
During those meetings at the City Council meeting, if one person who was carrying a concealed loaded gun and did not like what he/she heard and got upset (as one person did), they tripped the tripper, how many could have been hurt people of that error in judgement.
While shopping at Wal Mart, if one person who was carrying a concealed loaded gun and did not like that Wal Mart would not refund their money and got upset (as one person did), they tripped the tripper, how many could have been hurt people of that error in judgement.
While looking for a parking spot, if one person who was carrying a concealed loaded gun and thought that someone stole a parking spot from them and got upset (as one person did), they tripped the tripper, how many could have been hurt people of that error in judgement.
We can go on and on, can’t we? So, in order to make you feel safe we should ban all firearms in any public place where you might happen to be, right?
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I have no idea what a “tripper” is or what it means to trip the “tripper”.
I suggest you refer to this graphic and rephrase:
“Integral Parts of a Firearm”:
http://www.ballistics101.com/integral_parts_of_a_firearm.php
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Some people just can’t understand that the difference between the person who open carries and the person who conceals is that a few millimeters of cloth is tucked in behind the gun for open carry, or worn over the gun for concealed carry. That is the ONLY difference.
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People who carry “Concealed” go through background checks and are considered “safe”, people who carry “OPEN” do not go through as extensive checks. At any rate, what I understand is “CONCEALED” is just that. Banning firearms in public places should already be that look at all the people being shot, do away with firearms in public and govenment places should be law.
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People with a Concealed Pistol License carry their firearms in public. So, as per the above from “Concerned”, doing so is a “safe” thing to do, and therefore is there is no justification to “do away with firearms in public”.
People who open-carry may have also gone though background checks.
Also, for example, neither a rifle nor shotgun is a firearm that can be carried concealed by virtue of having a Concealed PISTOL license (which actually means both “pistols” and “revolvers”). Therefore, one must most likely “open-carry” such a firearm.
Most people, except law enforcement, do not generally open-carry a sidearm. But, having said that, since most law enforcement DOES open carry, does it also follow that all law enforcement personnel are therefore unsafe since they do not carry concealed?
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So you really think that every person who carries concealed has a license? WOW. Let’s say I was a criminal and I was carrying a gun around when the opportunity arose to commit a crime. Which method do you think I would choose to carry my gun? Concealed or open?
Again, the only difference in the law abiding citizen who is carry a gun openly or concealed is whether they tuck their shirt in behind the gun or over it. If a criminal is carrying a gun for evil purposes, they won’t risk the attention of carrying it exposed for everyone to see.
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Most law enforcement are responsible (not like the one in LA recently). To much violence in the world and irresponsible people with guns. I do not own a gun and have no plans to own a gun….if I am in need of a gun to live, then I live in the wrong place. I enjoy shooting at targets and not people….that is why we have law enforcement…..its said to see children being shot because of irresponsible gun owners. Not saying people should not have guns…I just think they need to better controls in place to keep people who misuse guns from getting to them….
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To dream the impossible dream….control is an illusion.
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“I enjoy shooting at targets and not people….that is why we have law enforcement”
Yeah, here’s an example of those law enforcement folks doing exactly what you suggest they do:
“Man killed by Seattle police was mentally ill, neighbors say”
http://seattletimes.com/html/localnews/2020449292_shootingpolicexml.html
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I like Mr. Hawkins comments: “Concealed is Concealed” Whay can’t people understand that. It doesn’t say you can pack a rifle on your shoulder and walk into a room full of people in a public meeting and made a scene and be on TV..Look at me I am carrying a rifle —– think people need to use better judgment and a little common sense.
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Actually, people can, and do, open-carry, when appropriate to do so. That City Council meeting was one of those times when it was appropriate to do so – in order to the get the Oak Harbor City Council-elected-clowns to use better judgment so the City of Oak harbor would not get sued.
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You do understand that it was Rick Almberg acting childish that started the TV media coverage of the Oak Harbor City Council meetings, right?
And how about the anti-gun protestors that march with their signs “look at me, I am carrying an anti-gun sign!”
Where is your outcry about them? They are gathering together and legally carrying objects for political reasons. Why are they any different than these guys:
http://www.komonews.com/news/local/Gun-rights-supporters-turn-out-in-force-in-Olympia-190457921.html
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“Rick Almberg acting childish that started the TV media coverage of the Oak Harbor City Council meetings…how about the anti-gun protestors that march with their signs “look at me, I am carrying an anti-gun sign…Where is your outcry about them?”
“Never wrestle with pigs. You both get dirty and the pig likes it.” ― George Bernard Shaw
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I think the whole process was out of hand…..and could have been dealt with in a different manner, it did not require people to show up with guns looking like going to fight a war…….we all need to find ways to make the world a better place and not sure that meeting was the right course…
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You are absolutely correct:
“I think the whole process was out of hand…..and could have been dealt with in a different manner, it did not require people to show up with guns looking like going to fight a war…….we all need to find ways to make the world a better place and not sure that meeting was the right course”The Oak Harbor City Council should have just obeyed state law back in December to begin with and Almberg should not interrogate law abiding citizens during city council meetings.
Stanwood City Council just removed their illegal firearms bans in their ordinances. No tv cameras, no protestors, no fanfare. Just about 4 sentences about it buried in the back pages of the local newspaper. Why? Because they know how to follow state law.
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Agree.
Reply
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