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Author Topic: Court of Appeals ruling on concealed carry  (Read 9251 times)

Offline m morton

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Re: CCW clarification from NE high court
« Reply #20 on: December 17, 2016, 04:56:01 PM »
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

 NE state law states you can open carry witch makes this mute if the gun is visible and or on your person does it not ? and what about those people that ride motorcycles that open carry ? there is no compartment out of there reach at all...  i think this is just a way to add more charges to crimminal types and those in possession of stolen guns or those in Omaha and Lincoln that have unregistered guns but i am not nor ever want to be a lawyer lol the legal double speak makes my head hurt

 so if this is what your saying ? this "clarification" now makes it so ONLY people that have chp's can open carry in Nebraska while driving ? the state Constitution just got **** on . and should be challenged and re-clarification to add that those in legal possession of a gun are not breaking any law.
I will allow myself one personal observation. If you want to disarm yourself, that is your choice. The following quote is a favorite of mine and something to keep in mind when you make that choice.

“Sheep don’t tell wolves what’s for dinner.”

Offline Immortality

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Re: Court of Appeals ruling on concealed carry
« Reply #21 on: December 17, 2016, 06:11:22 PM »
Update...  The State petitioned the Supreme Court for further review and after oral arguments in November, issued a ruling Friday reversing the Court of Appeals ruling.  The opinion could be read to make it almost impossible to carry a firearm in the passenger compartment of a vehicle, even if it is in a case.  The court basically threw out the requirement that the firearm must be within immediate reach.  "[T]he jury, as a rational trier of fact, could have found that the handgun was on or about Senn's person, even though it was not within his reach when driving." 

The handgun in Senn was in a hardsided case when it was found in the vehicle, outside the reach of the driver.  So, say you have your deer rifle in a case in the backseat of your truck and it's outside your reach, you could be arrested for carrying a concealed weapon.  And your CHP won't save you.  CHP only applies to handguns.  The concealed carry statute (28-1202) doesn't just apply to handguns, it applies to any weapon.  And under Nebraska caselaw, to be classified as a weapon, a firearm does not have to be loaded. 

So, I guess we'll have to see how this plays out in real life.

https://supremecourt.nebraska.gov/sc/opinions/2016-12-16

Offline Kendahl

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Re: Court of Appeals ruling on concealed carry
« Reply #22 on: December 17, 2016, 06:35:46 PM »
This ruling would appear to apply to any vehicle that doesn't have a trunk. Examples, in addition to pickups, are SUVs, vans and hatchbacks. If you have a pickup, you would need a storage box in the bed. For the others, all I can think of is a roof top carrier. A CHP would cover you for handguns but not for rifles or shotguns. The only solution for them may be to transport them in plain sight rather than in a case.

Offline wcr

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Re: Court of Appeals ruling on concealed carry
« Reply #23 on: December 17, 2016, 06:46:06 PM »
As for storage in a locked trunk.  Wouldn't this also apply to sedans in which the back seat or arm rest can be dropped (usually by pulling a lever) to give access to the locked trunk from inside the car in the back seat.  This is getting rediculous.

Offline SemperFiGuy

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Re: Court of Appeals ruling on concealed carry
« Reply #24 on: December 17, 2016, 07:27:28 PM »
Quote
...a firearm does not have to be loaded.

Yes........  Actually, it doesn't even have to work:

===========================
State v. Clark, 10 Neb. App. 758, 637 N.W.2d 671 (2002).
A firearm does not have to be operable in order for the defendant to be guilty of use of a deadly weapon to commit a felony.
===========================

And for that matter, doesn't even have to be a complete firearm.   Just the bare frame w/serial number constitutes a firearm.   Doesn't need a barrel, magazine, cylinder, etc.

But we have the right to keep and bear it...   Don't we???


sfg

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Offline Immortality

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Re: Court of Appeals ruling on concealed carry
« Reply #25 on: December 17, 2016, 08:29:27 PM »
I don't think a lockbox anywhere the vehicle would work either.  There is caselaw that a firearm in a locked glove box is still concealed for the purposed of this statue.

The other issue is, even if you openly display the firearms, what do you do when you stop at Walmart?  You'd have to leave your firearm out in the open because if you hide it, it's again concealed.  If you leave it in the open, you're just begging to have it stolen.

Offline Mntnman

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Re: Court of Appeals ruling on concealed carry
« Reply #26 on: December 17, 2016, 10:40:31 PM »
Hopefully this nonsense will act as a catalyst to put real common sense in Nebraska statutes.

Offline CrazyGolfNut

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Re: CCW clarification from NE high court
« Reply #27 on: December 18, 2016, 07:04:24 AM »
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.

My wife and I both got our CCW because of the the confusing laws.
“He flourished his sword, I pulled out my gun and shot him”
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Offline Hardwood83

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Re: CCW clarification from NE high court
« Reply #28 on: December 18, 2016, 09:31:33 AM »
What utter foolishness. Constitutional carry will cure all these super confusing issues for the poor supreme court.
"A fear of weapons is a sign of retarded sexual and emotional maturity." Sigmund Freud

Offline unfy

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Re: Court of Appeals ruling on concealed carry
« Reply #29 on: December 18, 2016, 12:59:38 PM »
Concerning Rod's statement to the OWH - I approve.

Quote
Rod Moeller of Omaha, president of the Nebraska Firearms Owners Association, said he had not yet read the opinion, so he wasn’t sure how far-reaching it might be.

Good, good Rod :D

Off to read the opinion myself - but at face value this is asinine.
hoppe's #9 is not the end all be all woman catching pheramone people make it out to be ... cause i smell of it 2 or 3 times a week but remain single  >:D

Offline unfy

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Re: Court of Appeals ruling on concealed carry
« Reply #30 on: December 18, 2016, 01:03:21 PM »
Quote from: SCONE
Senn was charged in the district court for Richardson County,
Nebraska, with attempted second degree murder, use of a firearm
to commit a felony, two counts of terroristic threats, and
carrying a concealed weapon. Following a jury trial, he was
convicted of carrying a concealed weapon but was acquitted of
the remaining charges.

Wait... what ? I'm confused lol...

anyway... continuing to read...
hoppe's #9 is not the end all be all woman catching pheramone people make it out to be ... cause i smell of it 2 or 3 times a week but remain single  >:D

Offline unfy

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Re: Court of Appeals ruling on concealed carry
« Reply #31 on: December 18, 2016, 01:09:30 PM »
Quote from: SCONE
Citing a civil case, the Court of Appeals declined
to address the State’s argument that Senn could have committed
the offense just before he allegedly shot at Buckley,

I'm sorry - "could have committed the offense" ?  EXCUSE ME ? TRY AGAIN.

(shaking head)
hoppe's #9 is not the end all be all woman catching pheramone people make it out to be ... cause i smell of it 2 or 3 times a week but remain single  >:D

Offline unfy

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Re: Court of Appeals ruling on concealed carry
« Reply #32 on: December 18, 2016, 01:14:50 PM »
Quote from: SCONE
The Court of Appeals relied on testimony establishing that
Senn could not reach the handgun while driving, but that testimony
did not speak to whether he could have reached it in
other driving situations, such as while the vehicle was stopped.
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.” In fact, in Kennedy v. State,
171 Neb. 160, 170-71, 105 N.W.2d 710, 718 (1960), where the
defendant was one of several occupants in the vehicle, we held
that a weapon is concealed when it is hidden from ordinary
observation and is “readily accessible on [the] person [of] or
in a motor vehicle operated by [the] defendant.” (Emphasis
supplied). Further, in State v. Goodwin, 184 Neb. at 541, 169
N.W.2d at 273, we affirmed the jury’s factual finding and held
that a loaded pistol found in a locked glove compartment during
a postarrest search was concealed “on or about” the person
of the driver because it was concealed in an accessible location
over which the defendant had control.

Could not reach the handgun while driving but it could be reached in other driving situations ?

I'm a bit confused.

Anyway, the locked glove box appears to be very relevant.  I'd wanna read Goodwin as well just to make sure... but anyway...



I think we need "readily accessible" defined.  Cause it's kind of looking like the weapon HAS to be outside of the passenger area - which is somewhat impossible in several vehicle types.  IE: a minivan, suv, compact car with a hatch back, etc.

Given my initial quote of the opinion/decision a couple posts a go, it looks like a domestic situation that might have involved a questionable character (I honestly dunno) - and that the concealed weapons charge decision is more or less "poisoning the tree" (legal / liberty term).  Possibly bending the law in order "to get one bad guy".  See also - "you have to invoke your 5th amendment rights in order for it to apply to you" that the SCOTUS did a couple years ago.

« Last Edit: December 18, 2016, 01:22:35 PM by unfy »
hoppe's #9 is not the end all be all woman catching pheramone people make it out to be ... cause i smell of it 2 or 3 times a week but remain single  >:D

Offline Immortality

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Re: Court of Appeals ruling on concealed carry
« Reply #33 on: December 18, 2016, 02:59:02 PM »
This is my case.  I've been working on this thing for two years and got the outcome we wanted on appeal.  The ruling from the Supreme Court was disappointing to say the least.  What was worse is that it didn't really clarify anything except making it appear that it is no longer possible to carry a firearm in the passenger compartment of a vehicle unless it is in plain sight.

I am filing a motion for rehearing with the Supreme Court this week but I'm not holding my breath that much comes of it.  Unfortunately the Nebraska Supreme Court has a lot of former prosecutors on it.

If anyone has questions about the case or the ruling, I'll do my best to clear it up.

Offline SemperFiGuy

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Re: Court of Appeals ruling on concealed carry
« Reply #34 on: December 18, 2016, 03:28:39 PM »
Quote
This is my case......If anyone has questions about the case or the ruling, I'll do my best to clear it up.

And you must feel like you're caught in a really, really bad, bizarre dream.

The contradiction here is that we have the right to keep and bear arms (US and NE Constitutions), but we can't keep them and bear them in our automobiles, where we spend a great deal of our time and life's essence.

So:   How Can We--the NE Forum Membership--Help You?

Because...........By helping you we help ourselves and all other NE firearms owners.


sfg
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Offline Les

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Re: Court of Appeals ruling on concealed carry
« Reply #35 on: December 18, 2016, 03:40:49 PM »
This is my case.  I've been working on this thing for two years and got the outcome we wanted on appeal.  The ruling from the Supreme Court was disappointing to say the least.  What was worse is that it didn't really clarify anything except making it appear that it is no longer possible to carry a firearm in the passenger compartment of a vehicle unless it is in plain sight.

I am filing a motion for rehearing with the Supreme Court this week but I'm not holding my breath that much comes of it.  Unfortunately the Nebraska Supreme Court has a lot of former prosecutors on it.

If anyone has questions about the case or the ruling, I'll do my best to clear it up.

I still fail to see how they came to this conclusion, after the previous ruling that was correct. Are they attempting to give law enforcement the widest possible brush for prosecution?  Did they give any insight into intent of the ruling?

Offline Immortality

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Re: Court of Appeals ruling on concealed carry
« Reply #36 on: December 18, 2016, 05:50:40 PM »
The problem is that it is hard to have a jury verdict overturned.  And this jury, I feel, felt like they needed to convict Senn of something since they found him not guilty of the felony charges.  This was a fairly minor issue at the trial and I thought the testimony of the Deputy and the Sheriff saying it was outside his reach, along with the fact it was in a hard case, would be enough to get a not guilty on that too. 

Although I was happy with the Court of Appeals ruling, I didn't really like their reasoning either.  We have a lot of appellate judges and justices who don't really understand gun law and how this opinion will affect transporting a firearm in Nebraska (even though I stressed this multiple times).

Offline wcr

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Re: Court of Appeals ruling on concealed carry
« Reply #37 on: December 18, 2016, 06:03:37 PM »
Ref. Kendahl's forum comment above. Lets assume you have a CCW and own a SUV, van or hatchback.  You want to take your rifle/shotgun to the range or go hunting sometime within the next 2 weeks. Since the rifle/shotgun  are not covered by your CCW.  Under this ruling how are you going to do it.  If you say tie it on the roof I'm going have trouble believing it.   


Offline Immortality

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Re: Court of Appeals ruling on concealed carry
« Reply #38 on: December 18, 2016, 06:10:56 PM »

And you must feel like you're caught in a really, really bad, bizarre dream.

The contradiction here is that we have the right to keep and bear arms (US and NE Constitutions), but we can't keep them and bear them in our automobiles, where we spend a great deal of our time and life's essence.

So:   How Can We--the NE Forum Membership--Help You?

Because...........By helping you we help ourselves and all other NE firearms owners.


sfg

At this point, I'm making a motion for rehearing and see what happens with that.  It's more than likely they will not allow a rehearing.  At that point, I'm going to be contacting my state Senator and see if this can be resolved by the Unicam.  There is plenty of room in the statute to clarify what "on or about" actually means.  I'd think even Ernie Chambers would be on board with making this more clear (since a few of his constituents get convicted of this now and again).

Offline Immortality

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Re: Court of Appeals ruling on concealed carry
« Reply #39 on: December 18, 2016, 06:14:46 PM »
Ref. Kendahl's forum comment above. Lets assume you have a CCW and own a SUV, van or hatchback.  You want to take your rifle/shotgun to the range or go hunting sometime within the next 2 weeks. Since the rifle/shotgun  are not covered by your CCW.  Under this ruling how are you going to do it.  If you say tie it on the roof I'm going have trouble believing it.

Your only choice is to leave it in plain sight.  I made this point as well at oral arguments.  You're on your way to the range with your rifle in an SUV, you stop at Cabela's to buy ammo.  What do you do with it?  If you cover it up with anything (including a case) it's now a concealed weapon.  Leave it out in the open and anyone could see it and break into your vehicle.  I tried to frame that part as a public safety issue but clearly didn't have any effect.