Court of Appeals ruling on concealed carry

[sidearm1]

(Note:  This is NOT legal advice, just an FYI) Interesting court case from Nebraska Court of Appeals.  State v Senn 24 Neb App 160.
Court ruled that a weapon sitting behind the back seat of a truck out of reach of the driver is not a concealed weapon.

Not getting into details, but driver stopped by deputy, deputy found handgun in case behind passengers seat, admitted that the driver could not easily reach weapon. Still cited him for carrying a concealed firearm.  Court of appeals over ruled lower court ruling that it was.

[shooter]

OH MY GOD! a judge with common sense,  what will happen next?

[hilowe]

OH MY GOD! a judge with common sense,  what will happen next?

 Human sacrifice, dogs and cats living together – mass hysteria.

Sorry, had to pull out the Ghostbusters quote.

[Sandhillian]

24 Neb App 160

I had trouble looking that citation up, so thought there was a typo, but there isn't.  The case just came out yesterday.

[jFader]

I had trouble looking that citation up, so thought there was a typo, but there isn't.  The case just came out yesterday.

Very interesting! 

[GreyGeek]

https://www.nebraska.gov/apps-courts-epub/public/viewOpinion?docId=N00003117PUB

What interested me was the appellate judge's interpretation of the Nebraska concealed carry law:

. Criminal Law: Weapons. The purpose of Neb. Rev. Stat. § 28-1202 (Cum. Supp. 2014), Nebraska’s concealed weapon statute, is to prevent the carrying of weapons because of the opportunity and temptation to use them which arise from concealment.

The "purpose" as he explains it contradicts the 2nd Amendment, which makes no distinction about "opportunity" or "temptation".  Obviously 28-1202 fringes the blanket right granted by the 2A and thus is an unconstitutional infringement.  It was common when I was young for people to casually carry pocket pistols on their person or keep one in their glove compartment, a life was a lot safer then than now. 

Another story brought up a statistic about Obama being the best gun salesman ever.  It quoted a statistic that during his eight years in office over 141,000,000 background checks had been made.  The number of checks doesn't relate to the number of guns purchased during a single check, nor does it relate to weapons purchased by thugs illegally.   The figures do suggest that the percentages of Americans owning firearms is well above the 30% claim by the media, and is increasing, not decreasing as the media claims.   This figure probably doesn't include the explosion of gun purchases and concealed carry permits by Gays, who now clearly understand why No Gun signs are  not affective in preventing abuses of firearms by thugs and mentally deranged individuals.

[SemperFiGuy]

Thanks for the highly informational research, GG.

sfg

[Sandhillian]

While the end result of the case is favorable, some of the legal reasoning used in reaching that result is flawed.  The Court sprinkled in civil law concepts that have not been applicable to, and should not apply in, the realm of criminal law.  Those concepts, however, have nothing to do with the actual firearm issues in the case.

[Kendahl]

.... the percentages of Americans owning firearms is well above the 30% claim by the media, and is increasing, not decreasing ....

Right after the husband-and-wife terrorist attack in San Bernardino, local residents were lined up outside the doors at gun shops. Lots of guns were sold, much to the President's displeasure.

Rural California is much different from the major coastal cities. The sheriff of San Bernardino County  is CCW friendly. Unfortunately, the large populations of the cities means they dominate state politics.

[GreyGeek]

Same here in Nebraska.  Omaha and Lincoln are strongholds of "Intellectuals" and those dependent on gov welfare and "freebies" (to them, at taxpayers expense). 

While I was working at the dept of Revenue 10 years ago writing the Homestead application and working on tax returns I noticed an interesting trend.  A LOT of people were moving from California to Nebraska.  This was before the housing bubble burst.  They were selling their modest two bedroom houses in California for $500-750K and buying better houses here for $250-300K, and banking the rest.  They also brought other things with them ... voting for the policies that made California almost. a third world state. 

It reminds me of an old joke about Berkeley:   Too small to be a nation state and too big to be an insane asylum.   (In response to Berkeley city council declaring Berkeley to be a "Nuclear Free Zone".

[shooter]

Another story brought up a statistic about Obama being the best gun salesman ever.  It quoted a statistic that during his eight years in office over 141,000,000 background checks had been made.  The number of checks doesn't relate to the number of guns purchased during a single check, nor does it relate to weapons purchased by thugs illegally.   The figures do suggest that the percentages of Americans owning firearms is well above the 30% claim by the media, and is increasing, not decreasing as the media claims.   This figure probably doesn't include the explosion of gun purchases and concealed carry permits by Gays, who now clearly understand why No Gun signs are  not affective in preventing abuses of firearms by thugs and mentally deranged individuals.
[/quote]

   how many states have a system like Nebraska, we get 1 background check every 5 years.   and can buy all the firearms we want,  ( notice I said want. NOT afford!)  so the entire state of Nebraska throw that number off.

[DenmanShooter]

Human sacrifice, dogs and cats living together – mass hysteria.

Sorry, had to pull out the Ghostbusters quote.

  Yes, your honor, this man (the cop) has no D***.

[wcr]

 Article in todays (Dec 17,2016) Omaha World Herald titled "High court clarifies concealed carry law"  might want to check it out. It discusses 'beyond reach' and 'accessible/inaccessible" meanings.  Rod Moeller is mentioned toward the end of the article.  I would appreciate any comments/clarifications. 

[SemperFiGuy]

It appears that the NE Supreme Court ruling further defined reachability of a handgun while  being transported by vehicle; namely, that the handgun must not be reachable by the driver while either driving or while stopped.   Which therefore now makes any handgun within the passenger compartment to be "reachable".

From what I could tell by reading the article, non-CHP pickup truck drivers will now need a lockable toolbox in the bed of their vehicle for use in order to transport a handgun.   Non-CHP auto drivers can use their car trunks.   Non-CHP Soccer Moms with SUVs and minivans can just go to jail; get a nice break from the kids and the dog and the laundry.   And work, of course.

Article didn't appear to address or clarify transportation of long guns.

It's a Never-Ending Battle Out There.

sfg

[JAK]

I downloaded and attached a copy of the Court Decision referenced in the article and a copy of Nebraska 28-1201 and 28-1202.

What it seems to say is that if a weapon is in the passenger compartment of a vehicle then it is considered to be accessible to the driver.  From reading 28-1201/1202 and the associated notes this applies to handguns, knives (blade over 3.5"), brass knuckles, or other deadly weapons. 

In the notes of 28-1202 it specifies that the gun dose not need to be operable in order to meet the definition. 

A loaded handgun was inside of a case, on the far side of the truck cab "against the wall of the truck—between the passenger seat and the right side wall of the truck, partially behind the seat, with some clothing on top of it" and was described as not accessible while driving.

According to the decision "Neither 28-1202 nor case law requires that the weapon be within the defendant’s reach while driving in order to be considered “on or about his person.”"

John K

[Les]

It appears that the NE Supreme Court ruling further defined reachability of a handgun while  being transported by vehicle; namely, that the handgun must not be reachable by the driver while either driving or while stopped.   Which therefore now makes any handgun within the passenger compartment to be "reachable".

From what I could tell by reading the article, non-CHP pickup truck drivers will now need a lockable toolbox in the bed of their vehicle for use in order to transport a handgun.   Non-CHP auto drivers can use their car trunks.   Non-CHP Soccer Moms with SUVs and minivans can just go to jail; get a nice break from the kids and the dog and the laundry.   And work, of course.

Article didn't appear to address or clarify transportation of long guns.

It's a Never-Ending Battle Out There.

sfg

Yup, lockbox time for pickups it appears. "Sigh"

[Mali]

This is a big reason I encouraged my wife to get her CCW. In some ways that is a Get-Out-of-Jail pass since so many things don't apply to someone with that little card in their possession. This is clearly something we need to address in law since it is more and more turning into a no-guns-or-else approach to enforcement.

[Les]

Another link. http://www.guns.com/2016/12/17/nebraska-supreme-court-clarifies-concealed-carry-in-cars/?utm_content=bufferbf86f&utm_medium=social&utm_source=twitter.com&utm_campaign=buffer

[depserv]

From reading 28-1201/1202 and the associated notes this applies to handguns, knives (blade over 3.5"), brass knuckles, or other deadly weapons. 

Is there some definition of "deadly weapon" in Nebraska state law beyond a knife having to have a blade over 3 1/2"?  How about a tool box containing common lethal weapons like screwdrivers and a hammer?  Or yard and camping tools like a hand ax or machete?  Or how about a baseball bat?  If I had to defend myself and I had to choose between a baseball bat and a knife with a 4" blade I know which one I'd pick.  And the biggest mass murder committed by an individual in America was committed with about a dollar's worth of gasoline and a lighter, so would a gas can be like a so-called assault weapon? 

Is there some kind of a phony test like legitimate use, as in it's ok to have a deadly weapon if it also has a non-weapon function?     

[SemperFiGuy]

Is there some definition of "deadly weapon" in Nebraska state law beyond a knife having to have a blade over 3 1/2"?

Here's about what I can find for the moment:
=======================================
28-1205.
Use of a deadly weapon to commit a felony; possession of a deadly weapon during the commission of a felony; penalty; separate and distinct offense; proof of possession.
(1)(a) Any person who uses a firearm, a knife, brass or iron knuckles, or any other deadly weapon to commit any felony which may be prosecuted in a court of this state commits the offense of use of a deadly weapon to commit a felony.
(b) Use of a deadly weapon, other than a firearm, to commit a felony is a Class II felony.
(c) Use of a deadly weapon, which is a firearm, to commit a felony is a Class IC felony.
(2)(a) Any person who possesses a firearm, a knife, brass or iron knuckles, or a destructive device during the commission of any felony which may be prosecuted in a court of this state commits the offense of possession of a deadly weapon during the commission of a felony.
==========================================

Basically, a Deadly Weapon is any "destructive device" (a term found elsewhere in Nebraska Statutes) that may be used to inflict lethal (killing/maiming) force.

Like a:

Brick
Broken beer bottle
Baseball bat
Chairs (Over the head, like the Cowboy Movies)
Club
Crowbar
[I'll stop here:  We're only in the B's and C's, but you get the idea]

I'm guessin' that fists aren't Deadly Weapons, per se.   Unless somebody is killed with them.

You can also look up Lethal Force.   Same idea.

If the Prosecutor sez it's a Deadly Weapon, then the Defense Attorney is going to be on the spot.

FWIW,

sfg