Open Carry – The Legality, The Ethics And The Risk To Public Safety

photo of protesters at Campbell, Ohio open carry firearms rally

 

by Richard Cameron


 

Once again, mass shootings – of which there have been a deluge in recent weeks, are at the forefront of the national conversation. The killings in El Paso, Texas, Dayton, Ohio and Gilroy, California are the impetus to another round of policy debates on solutions.

The only low hanging fruit among them are Universal Background Checks. And even that is more than likely going to require immense public pressure, teeth pulling and horse trading to move Congress – at least on the GOP Senate side, to produce a bill.

Red Flag laws – giving law enforcement and the courts more latitude to determine whether a gun owner might be a threat to himself or others, also seems to have broad support. Banning so called “assault weapons” does not appear to be a prospect now, or in the near future.

But even though it has not come up so far in the general discussion, laws permitting the public carrying of certain classes of firearms, will certainly at some point be revisited. One of them that is pertinent is the category of “Open Carry”, due to the fact that the shooter in the El Paso incident, took his weapons into the Walmart store and killed and injured his victims there.  In like fashion, the Dayton shooter approached his targets with unconcealed weapons in a busy retail district. 

    
Open Carry Laws

A majority of states in America, allow, to one extent or another, individuals to carry firearms in public. The map below, shows the status in each state:

color coded national map indicating in Dark Green, Green, Yellow, Tan and Red - the status of Open Carry laws by state.

The color coding of the individual states, represents the following statuses:

Dark Green“Permissive Open Carry”

Green“Permissive Open Carry with Local Restrictions”.

Yellow“Licensed Open Carry”

Tan“Anamolous Open Carry”

Red“Non-Permissive Open Carry”

Broadly defined, the largest category of open carry statutes (31 states), Permissive Open Carry, generally indicates that in these states so designated, most citizens may openly carry a firearm without the necessity of either registering the weapon or obtaining a license or permit to do so.

The states categorized as Permissive Open Carry with Local Restrictions, hold much the same status as the above, with the exception that individual municipalities and counties may opt out of the state permissions and either prohibit open carry or require a license / permit.

In the states shown in Yellow on the map – the “Licensed Open Carry” states – the definition here is fairly self explanatory. Open carry is permitted by the state on the condition that the person carrying, has applied for a license to do so. Even so, the extent to which the licenses are issued, are situational and specific to the individual state in this category.

Some of these states are, in practical terms, “May Carry” states, in which state and local law enforcement authorities have the purview to decline to issue carry permits for all but a narrow band of circumstances.

The only state that fits the sole classification shown in Tan on the map, is California – where, based on population density, some counties may exercise the discretion to allow public carry of firearms. California has vast areas in several rural counties that afford “rugged individualists” a great deal of open space with which to express their freedom and the local governments in those counties are at liberty to relax regulations on firearms.  This factor also exists in certain of the states labeled “Permissive Open Carry” as well, for example the state of Virginia.

Finally, there is the “Non-permissive Open Carry” category, (states shown in Red) – which in itself, is a bit of a misnomer. It suggests that one could conceivably carry without permission, but this is not the case. Open carry in these states is only allowed in three instances – when one is issued a hunting permit from state Fish and Game departments, when target practicing in legally approved venues or when the individual has obtained legal permission to open carry for specified instances related to the purpose of self defense.

Preemption

 

In addition to the above outline, it should also be noted that many states whose statutory position corresponds to the Dark Green, Green and Yellow policies shown on the map, have written into the laws, “Preemption” clauses, simply meaning that a state law supersedes local ordinances.  For example, here is the one from Arizona’s law:

Arizona Revised Statutes section 13-3118 states:      

“[e]xcept for the legislature, this state and any agency or political subdivision of this state shall not enact or implement any law, rule or ordinance relating to the possession, transfer, or storage of firearms other than as provided in statute.”

It then goes on to specify what is prohibited to local municipalities as far as city ordinances are concerned:

Arizona Revised Statutes section 13-3108 provides that political subdivisions of Arizona may not:

“Enact any ordinance, rule or tax relating to the transportation, possession, carrying, sale, transfer, purchase, acquisition, gift, devise, storage, licensing, registration, discharge or use of firearms or ammunition or any firearm or ammunition components or related accessories in this state.”

No matter what category your state falls into, there are limitations applicable to all of them – the status of the persons allowed to carry and the specific places one is allowed to carry.

Federal Law Open Carry

 

Almost universally, general open carry notwithstanding, you may not open carry in a State, Local or Federal building, on public transportation, public educational facilities, polling places, power generating plants, in business establishments serving alcohol, (bars, taverns, nightclubs), properties belonging to or under the jurisdiction of Native American tribes (tribe owned hotels and casinos), public airport terminals within the TSA security screening areas and beyond – and any private establishment, workplace or retail place of business that declares that firearms are prohibited.

Federal law is controlling with regard to who may and may not be permitted to own or carry a firearm, either openly or concealed. No one in any of the following classifications may own or carry a firearm, in public or elsewhere:               

• Persons under indictment for, or convicted of, any felony crime punishable by imprisonment for a term exceeding one year
• Fugitives from justice
• Persons who are unlawful users of, or addicted to, any controlled substance
• Persons who have been declared by a court as mental defectives or have been committed to a               mental institution
• Illegal aliens or aliens who were admitted to the United States under a non-immigrant visa
• Persons who have been dishonorably discharged from the Armed Forces
• Persons who have renounced their United States citizenship
• Persons subject to certain types of restraining orders
• Persons who have been convicted of a misdemeanor crime of domestic violence

A public debate is underway, about whether, given the acceleration of mass shooting events and the increased fear and anxiety they produce, businesses should voluntarily adopt no carry policies.

Today, the Arizona Republic featured an article by reporters Perry Vandell and Russ Wiles, detailing how retail businesses are working through the implications of the Dayton, Ohio and El Paso, shooting rampages. Arizona is a “Permissive Open Carry” state.

Disorderly Conduct and Going Armed To The Terror Of The Public

 

At one time, Arizona required a Concealed Carry permit, but in recent years, the state legislature, under the dominance of the Republican party, found it politically advantageous to jettison any requirement other than age, to carry open or concealed. That status is really only tempered by one other aspect of existing public safety codes – those dealing with “disorderly conduct”.

The avenue in which particular provisions of these codes intersect with the activity of open carry, is their heritage in earlier codes relating to the prohibition of “going armed to the terror of the public”.

One of the notable examples which bases a specific segment of disorderly conduct on this remnant of common law, is North Carolina.

In North Carolina, “going armed to the terror of the public” is technically not a state statute per se, but is an established and enforceable principal of accepted case law, hearkening back to 14th century English Common Law, that allows public safety officers that either witness the offense or in response to a complaint, to arrest an individual who:

(1) arms himself or herself with an unusual and dangerous weapon
(2) for the purpose of terrifying others and
(3) goes about on public highways
(4) in a manner to cause terror to the people.

“Unusual and dangerous weapon” is somewhat nebulous and interpretive. Presumably – in the environment of a state like North Carolina, a handgun that is holstered and remains so, would not likely meet this terminology. And in fact, in one of the cases on the record, STATE V. HUNTLEY, the judge in that case stated explicitly: “Simply wearing a gun in a holster in a peacable manner is not ‘going armed to the terror of the public’.“ But carrying a tactical or “military style” semi-automatic rifle in public areas, could be interpreted as terrifying others. And in January of this year, three men were arrested on these charges in Burlington, NC.

An example of the sort of provisions within disorderly conduct ordinances, is this from Texas, which reads:

“DISORDERLY CONDUCT. (a) A person commits an offense if he intentionally or knowingly…(8) displays a firearm or other deadly weapon in a public place in a manner calculated to alarm.”

 

The Arizona Republic interviewed Russ Richelsoph, a partner at criminal law firm, Davis Miles McGuire Gardner PLLC, on the topic of what conforms to those standards and what might not.  Richelsoph remarked that, “You can carry a firearm in a holster and that’s generally not considered threatening. But once you remove the firearm from the holster, depending on the context of the situation, that could be deemed threatening.”

And, Michael Scott,  clinical professor at Arizona State University’s School of Criminology and Criminal Justice, commented that “certainly — especially in the current climate with mass shootings — carrying a firearm openly into a busy, crowded public place, or even into a business, is likely to generate anxiety and fear and concern among other people.  And I would argue that that potentially violates at least the disorderly conduct statute if not a specific firearms law.”

Texas – Full Bore Open Carry

 

In terms of the practical reality of how the unarmed citizenry is affected by people moving in public spaces and retail environments with firearms – local and state officials are examining open carry in a new light due to the anxiety and fear the rash of mass shootings have precipitated. Texas, however, is not one of them. Texas is doubling down on the range of places where people can tote firearms.

USA Today reports:

At the beginning of September, 10 new laws that loosen restrictions on public gun possession will take effect in Texas, a mere month after the El Paso shooting killed 22 and injured 24.  Though Texas gun laws are some of the least restrictive in the nation, the laws will make it easier to possess guns in places of worship like churches, mosques and synagogues, apartment buildings, foster homes and public school grounds. Senate Bill 535 will reduce penalties for people who carry guns at “churches, synagogues or other places of worship” that prohibit firearms.

The laws were passed in the Texas Legislature’s last session, which concluded in June. The National Rifle Association’s lobbying arm, the Institute for Legislative Action, which nationally spends over $30 million annually, lobbied for all 10 of the bills. 

In the course of the past two decades, the number of people in Texas with a permit to concealed carry – and consequentially, open carry, has shot up dramatically. In 2000 there were roughly 215,000 active licenses in the state. As of last year, the number has increased more than four fold, totaling over one million, according to data from the Texas Department of Public Safety.

One important factor to be aware of, regarding Texas and many other “Permissive Open Carry” states, is that if you are publicly drunk or have alcohol on your person or in your vehicle, the legality of open carry goes out the window.              

Open Carry, Retailers and Shoppers

 

The Arizona Republic attempted to obtain public statements from various retailers about whether they have reconsidered their policies allowing guns in their stores. According to FBI statistics, just under half (46%) of mass shootings take place in “business settings”.  Walmart’s response was limited. Randy Hargrove, a public relations liaison, stated, “We follow all federal and state regulations with regard to firearms. There’s no change to our policies at this time (in the wake of the shootings.” That, in effect, means that armed individuals will still be allowed to access the stores.

The spokesperson from Albertsons / Safeway – Nancy Keane, issued a statement that was virtually identical to Walmart’s. “Our policy is to follow state and local laws as they relate to this issue, meaning customers are allowed to bring firearms into stores in states where the law allows it.”

One wonders if these statements, similar in content, are being crafted by some PR consultant group.

Neither Home Depot, Kohl’s, Lowe’s, McDonald’s or a host of other major retailers, responded to the Republic’s inquiry. One other statewide retailer did. Sprouts Farmer’s Markets, whose media representative Diego Romero, said that “Each location posts signage to indicate that firearms are not allowed inside the store, except for those carried by law-enforcement officers. Management will request any customer found in possession of a firearm or other dangerous weapon to remove it from the store or facility.”

Other national retailers and entertainment venues have stated no firearms policies. They include several movie theater chains, like AMC, Regal, Cinemark, and Harkins.  Restaurants prohibiting guests with guns, include, California Pizza Kitchen, Chuck E. Cheese Pizza, Jack-in-the-Box, Chili’s, Outback, Chipotle, Waffle House, Panera Bread, Domino’s, Pizza Hut, Cheesecake Factory and one I found slightly surprising – Buffalo Wild Wings.

Among retail shopping establishments declining admittance to gun toters are, Target, IKEA, Walgreens, CVS, and Costco.

There is a distinction to note here and that is that while these businesses may have a general corporate policy, it does not necessarily mean that local managers are enforcing them in every location – and concealed carry seldom raises issues with either other patrons or store employees, due to the obvious fact that in such a mode, the firearm is not staring anyone in the face.

Open carry may be winked at in regions where the gun culture is well established and forbidden in other store locations where the prevailing sensibilities are otherwise. 

Concealed Carry vs. Open Carry Debate

 

There is some dispute on the point of whether a store owner can prohibit customers in certain jurisdictions, from carrying guns into the establishment – particularly, whether the signage has legal effect.  It’s a meaningless argument however, because if a manager, employee or store owner asks the armed individual to leave the premises immediately, he or she must leave or face arrest on trespassing (“defiant trespassing”) charges.

Even among gun owners, there is an internal dispute within the ranks, as to the relative merits of open carry as opposed to concealed carry. The position of those who favor open carry, rests partly on Constitutional grounds, in which they maintain that it is an activity that underlines the phrase, “shall not infringe” in the language of the 2nd Amendment.

They also contend that open carry has a certain deterrent value, causing “bad guys with guns” to look elsewhere for potential victims.

Concealed carry proponents, on the other hand,  include a fair number who argue that not only does open carry make that gun owner more of a target for the armed criminals and eliminate completely, the element of surprise, but that in the circumstances of an active shooter situation; law enforcement arriving on the scene may not distinguish the open carry individual from the subject or subjects they are attempting to neutralize. The same objection has been voiced against proposals for arming teachers, administrators and custodians on school campuses.

Additionally, concealed carry supporters are saying that, from the standpoint of defending the rights of gun owners, open carry is a needless provocation of the public and bad civic engagement in terms of public opinion. 

Open Carry In The News


To add relevance to the subject of open carry, there have been two incidents just this week, that have drawn attention to the question at hand about open carry policies.

One took place in Springfield, Missouri at (you guessed it) a Walmart store, where Dmitriy Andreychenko, 20, was arrested by Greene County Sheriff deputies after the department received calls about a man in the store donning body armor, with a semi-automatic rifle and large capacity magazines each carrying 100 rounds.

Witnesses reported that Andreychenko was recording a video on his cell phone while pushing a cart through the Walmart.  Andreychenko was charged Friday with making a terrorist threat in the second degree, a felony, the Greene County Prosecuting Attorney’s Office said.

Andreychenko’s social media profiles include participation in a number of right wing oriented Facebook groups that feature pro-gun, pro-Trump, anti-immigrant, anti-Muslim, and anti-LGBTQ memes. Greene County Lt. Mike Lucas, told local reporters that Andreychenko’s “intent obviously was to cause chaos here, and he did that.”

The second widely distributed story was about 23 year old Conor Climo, arrested in Las Vegas, Nevada by the FBI on charges of terrorist plots against a synagogue and a gay nightclub.

A video still of 2016 local media coverage of domestic terror suspect interviewed about his armed "community patrol".
A video still of 2016 local media coverage of domestic terror suspect interviewed about his armed “community patrol”.

One aspect of this that is significant to our report here, is that Climo had previously been the subject of local television coverage in 2016, when residents in his Centennial Hills neighborhood reported to police that he was walking through the community “conducting a citizens’ patrol” wearing a vest full of magazines and armed with an AR-rifle.

Police told Las Vegas’s KTNV-TV that Climo’s actions are legal as long as he stays away from restricted zones, like schools and certain government buildings. In light of Climo’s arrest yesterday and the possible magnitude of the crime he was allegedly plotting, perhaps LVPD should have taken Climo’s behavior more seriously at the time. 

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