NFOA MEMBERS FORUM
General Categories => Carry Issues => Topic started by: davep on December 04, 2014, 09:11:22 PM
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NRS 69-2429 defines concealed handgun as: "(1) Concealed handgun means the handgun is totally hidden from view. If any part of the handgun is capable of being seen, it is not a concealed handgun;"
Title 272 Nebraska Administraive Code, Chapter 21 State Patrol, section 002.03 defines concealed handgun as: "002.03 “Concealed handgun” shall mean totally hidden from view with no portion of the handgun visible."
Where did the standard LE response of "The gun must be in plain sight", or you will be charged with carrying a concealed weapon under NRS 28-1202 originate? What is the statute that says it must be in plain sight, or does one exist? If one does exist, would it not conflict with the above statues?
I have to assume that the Nebraska State Patrol would certainly know what Title 272, NAC, Chapter 21 says, as that section pertains directly to them. "If any part of the handgun is CAPABLE of being seen, it is not a concealed handgun" is a far cry from "plain sight". So again, my question, where does the "plain sight" requirement come from?
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I can't give a definitive answer, but only an observation/comment.
http://nebraskafirearms.org/forum/index.php/topic,2130.msg16181.html#msg16181 (http://nebraskafirearms.org/forum/index.php/topic,2130.msg16181.html#msg16181)
http://nebraskafirearms.org/forum/index.php/topic,2099.msg16185.html#msg16185 (http://nebraskafirearms.org/forum/index.php/topic,2099.msg16185.html#msg16185)
When this man defended himself and other patrons of a Walgreens from some thugs who threatened their lives during a robbery, he did not have a CHP. I thought for sure Marty Conoboy was going to charge him with carrying a concealed handgun. However, he decided not to charge him saying "...(his) weapon was not completely concealed during the incident." So they have set the precedent, if it needed to be set.
Fly
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The definition of a concealed handgun was changed as a part of the Concealed Handgun Act and it was done because no legal definition existed in state law previously, but there was the widely accepted requirement of "in plain sight" for legal open carry that had no statutory basis that I am aware of.
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I completely agree statute was followed in this case, and precedent has been set. In my opinion, this is a good thing. My original question was more to do with handgun placement in a vehicle. I know I did not qualify my question with carrying in a vehicle. If a handgun was holstered, or mounted ON the console of your vehicle, with nothing covering it, would it meet the "capable of being seen" requirement of the statute? Keep in mind, accessibility has to presumed to be carrying. Would a handgun mounted in this fashion clear the "plain sight" judgement call of the LEO?
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If a handgun was holstered, or mounted ON the console of your vehicle, with nothing covering it, would it meet the "capable of being seen" requirement of the statute?
I assume you don't have a permit or you would not be asking this...any way, back in the day before CCW was allowed I carried on the front seat in a holster and was ready to move it to the dash for better visibility if I thought it was necessary, but I never was involved in a traffic stop while OC'ing so I don't really know how effective that would have been, but I know others did and were successful at avoiding a CCW charge.
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One thing to consider...if the LEO can see it then it is capable of being seen, but that would be my black and white way of thinking that usually gets me in trouble
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I fully understand the Concealed Carry Permit negates this question, and I have not had any problems, or charges brought against me. I am trying to establish that since the Concealed Handgun Act did define what is considered concealed, and since the precedent was set in the Walgreen's shooting that "any part is capable of being seen" does matter, why does LE continue to operate under the plain sight requirement that has never had any statutory basis?
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One thing to consider...if the LEO can see it then it is capable of being seen, but that would be my black and white way of thinking that usually gets me in trouble
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We are on the same page here. Unfortunately you are also correct in your prediction of that thinking getting you in trouble.
Even after the LEO put in his report that "saw the grips of a handgun" he went all out, and made the arrest, confiscated the firearm, and impounded the vehicle. Fortunately the County Attorney did decline to prosecute, but a why put someone through that wringer in the first place? This happened 3 months ago, and the individual just got notification he could drive over 100 miles to the headquarters and recover his firearm.
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I'm glad that worked out ok for the person, but that is quite a hassle to go through. When a LEO makes a wrong interpretation such as in this example, is there any followup by the county attorney to educate the police officer or maybe the entire force on this subject? If I were the attorney, I would want the officers to know the law better because that would make less work for me. I wold bet that this particular officer won't make that mistake again.
Fly
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Fly, your point of correcting a wrong interpretation is why I posted this incident. I do believe the LEO made the charge based on his training. I believe the mis-interpretation is still being taught as this LEO had a new trainee with him, hence the problem is being passed on. It is my hope this post might cause some to re-think some of what is taught at the Law Enforcement training facilities.
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What is your basis/support for this statement? I reread the OP and replies ... you make it sound a rampant or even common issue (likes cops going around in packs killing black males....)
why does LE continue to operate under the plain sight requirement that has never had any statutory basis?
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What is your basis/support for this statement?
Support/basis for LE still operating under the plain sight requirement is, that is reason the LEO gave for making the charge.
Support/basis for plain sight requirement having a statutory basis?...That is the question I have been asking, what is the statute that backs up "plain sight"?
Makes it sound rampant?....The County Attorney's response when asked about waiving the 28-1202 charge started like this; "What we have been doing with these". That statement would lead one to believe this was not the first time this offense had crossed this CA's desk.
Rampant problem?...I don't know, but it did happening once.
Lastly, all involved in the initial contact were white males, so I don't think playing the race card will work with this one. :-)
Dave
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I what would help my slow catching up DavP is your OP ... what exactly are you referring to ? The McCullough shooting?
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I am referencing an incident in September this year when an individual violated a traffic ordinance (failed to stop at stop sign), and a contact was made with LEO. In the course of the stop the 2 LEOs saw the driver's holstered handgun that was mounted in front of the console of his vehicle. The senior LEO then went forward with an charge and arrest for violating NRS 28-1202, carrying a concealed weapon, and seized then firearm, and impounded the vehicle. The driver did question the LEO as to how can it be concealed if you could see it? LEO's response was it has to be in plain sight. The LEO's report states he could see the handle of a gun.
The reason for my post is to attempt to establish if the "plain sight" requirement has any statutory basis, as statutory basis has been established for "any part capable of being seen it is not a concealed handgun". I have given the LEO the benefit of the doubt that he was carrying out his duties as he had been trained (must be in plain sight). If there is no statutory basis for the plain sight requirement, and there is statutory basis for the capable of being seen requirement, then the training of the LEO is what I am attempting to debate.
Dave
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Thnaks.... Personally my trip to recover my firearm would include a request to meet with thw Chief or Sheriff and respectfully "read them the riot act" .
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Chiefs of Police! And County Sheriffs are generally easily accessible, and open to discussing misunderstandings, differing views.
I have talked about this with active duty LE including the Sheriff, and they responded respectfully, but defended the LEO in this case, citing the "plain sight" requirement. Most were understanding, and even sympathetic, and agreed with the CA' decision to waive.
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The only thing that will change law enforcement's attitudes are lawsuits, like false arrest and conspiracy to deny one's fundamental civil right to keep and bear arms under force of law
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I know there are many members of the NFOA that are LEOs, both past and active. I have attempted to temper my posts, and not be inflammatory because these guys do have a tough job to do, and there are plenty of insulant, and offensive people out there looking for an excuse to bash them, I am not one of them, nor to I think the NFOA wants associated with any of them. I am also certain the vast majority of LEOs want to perform their duties professionally, and within statutory boundaries. I do believe this incident is a rare example of training not keeping up statute. I am troubled that the legislature would define concealed, Nebraska Administrative Code defines concealed for the State Patrol, and yet we have a trainer training a trainee, and making an arrest in conflict with their own code. Surely it won't take a court to say we need to think about this a minute.
Dave
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Hmmm. I am thinking the NSP/Sheriff has to cite under local regulations for the jurisdiction where the offense occurred?
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Hmmm. I am thinking the NSP/Sheriff has to cite under local regulations for the jurisdiction where the offense occurred?
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The location of the incident was in Nebraska.
He was charged under NRS 28-1202. 28-1202 is a Nebraska State statute, not a local ordinance.
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The only thing that will change law enforcement's attitudes are lawsuits, like false arrest and conspiracy to deny one's fundamental civil right to keep and bear arms under force of law
Maybe, but why wouldn't a Sheriff or Chief of Police want to avoid falsely accusing innocent people, wasting their officer's time, spending unnecessary money, and risking a lawsuit that makes their force look like a troop of circus clowns? Maybe it is a power thing or the inability to admit they can make mistakes.
I would think if they were truly good law men/women, they would consider these factors and make sure their officers have the right interpretation of the law.
Fly
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Fly, the first thing a Sheriff, or Chief of Police would do is check with the County Attorney to see if the charge could be beat based on the arguements we have just presented. If the CA thinks they will have trouble getting a judge to rule in their favor, they will make a change. I would bet that is why the County Attorney waived the charge in this case.
To be fair to our County Sheriff's Offices, and City Police Depts., it wasn't any of theirs that made the contact.
Dave
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I would think if they were truly good law men/women, they would consider these factors and make sure their officers have the right interpretation of the law.
Let me recount a encounter. Nothing to do with guns.
Several years ago when my now adult son was 18, he was pulled over by a certain NSP because he had blue accent lights in his car. (Not flashing in his window or on his dash, just accent lights around his dash instruments and etc., common today even from the factory) The NSP officer wrote him a ticket and told him there was no waiver, he had to go to court.
I called the Captain of the headquarters and complained. I asked him to please present a reason for the stop. He would not.
I asked if I could review the tape. He said I could not.
I asked if my attorney could review the tape. He said "You don't want to get an attorney involved" . I told him it was his officer who made it a required court appearance and if my son had to go to court he was not going without an attorney.
The captain called back later in the day and said he reviewed the tape and my son was very courteous during the stop but that he would not over rule his officer.
The local judge told me he had already told the NSP never to bring anymore of these (his words) "bull**** charges" to his court again or he would immediately throw them out. The NSP was deliberately mis-interpreting the statute they were using to make these stops and issue these citations and he wanted no more of it.
In addition, I found out the officer in question was notorious for pulling over young drivers and if he couldn't get an MIP he would write them up for something else regardless.
Needless to say, my son was off the hook but it still cost me $200 for the attorneys time.
So, yes, LEO will knowingly and willfully stand by obviously wrong arrests and citations because they can't be seen as going against their officers.
This was the only bad encounter I have ever had with the NSP or basically any LEO and I admit to the un-Christian like sin of holding a grudge against the a-hole officer who wrote the ticket and Captain Ruiz can KMA.
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How do you think this notion that an undefined requirement of "in plain sight" with no statutory language as a basis has survived all these years. It continues because there is no downside.
Consider this...they can have the best of both worlds if they continue to arrest and charge in this manner and let the ones that stand up and fight for their rights off the hook. No harm no foul. Right?
Same thing was going on in Omaha when they defied the Legislature and continued the illegal practice of requiring handgun registration for CHP holders. NFOA ended that crap when we sued along with the SAF.
State of Nebraska was denying CHP's to legal resident aliens, and they knew it was not legal, yet they waited until the NFOA and SAF sued before they would act to change the law
If you really want to effect a change in the training and practices of LEO's on the street in regard to open carry, you are going to have to make their bosses see the downside in messing with the 2nd
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If you really want to effect a change in the training and practices of LEO's on the street in regard to open carry, you are going to have to make their bosses see the downside in messing with the 2nd
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Dan,
Sadly I do believe you are correct. Talking doesn't seem to effect much change on the street. As the old saying goes; " Ass chewings are free. If you want it to change, you're gonna have to make cost something".
If the NFOA wants more info on this, I will see if the person wants to share more details with them...not on the forum.
Dave
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Yes, please.
if he would email the specifics to myself and Rod ( rmoeller). Will will look it over. We'll add it to our pile of bad / misinterpreted laws.
Sent from my C771 using Tapatalk 2
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Then sue over this. Still on the books, still enforced by LPD.
IN A VEHICLE—
When transporting a weapon in a vehicle it is considered a concealed weapon when it is concealed in a manner readily accessible to the driver or passenger of the vehicle. The firearm must be unloaded, and neither the firearm nor any ammunition being transported is readily accessible or is directly accessible from the driver/passenger compartment of such transporting vehicle.
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DenmanShooter, Dan W, and davep...I understand that when an officer is dealing with a BG, they will write them up for everything they can possibly think of. From a broken tail light to possession of a weapon by a disallowed individual (not sure what the actual charge would be titled). When the plea bargaining begins, as it always does, the prosecuting attorney can get something to stick. It sounds like this is similar to what these officers are doing since they can't find anything else. My question would be, is this what ALL police/sheriff's departments are doing, or just some bad apples? If the latter, then these are obviously bad LEO's. Regardless of whether it is all or some agencies, we need more money in the NFOA hoppers to bring some lawsuits down on these agencies.
If this person that davep knows has a legitimate gripe, can the NFOA file suit against the offending agency to set a precedence?
Then sue over this. Still on the books, still enforced by LPD.
IN A VEHICLE—
When transporting a weapon in a vehicle it is considered a concealed weapon when it is concealed in a manner readily accessible to the driver or passenger of the vehicle. The firearm must be unloaded, and neither the firearm nor any ammunition being transported is readily accessible or is directly accessible from the driver/passenger compartment of such transporting vehicle.
Maybe I am reading this wrong, but the phrase "...when it is concealed in such a manor..." does not seem to apply to this discussion. This statement does not define what "concealed" is (or is not). It only says that if a firearm is concealed, but readily accessible to the driver or passenger, then it is considered "concealed". Whether I agree with this law is another issue, but this is correct from what I understand of the law. If you are saying it is not correct, why? I ain't no genesis, so I would like to know where I'm going wrong.
Fly
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If this person that davep knows has a legitimate gripe, can the NFOA file suit against the offending agency to set a precedence?
On our own, No we don't have the muscle to do that, but working with the Second Amendment Foundation legal team has been very successful so far.
The SAF is always looking for strong cases to take on, but the parties to the suit must all be on board and ready to move forward once the decision is made to take the case, and the SAF legal team makes that call.
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Then sue over this. Still on the books, still enforced by LPD.
IN A VEHICLE—
When transporting a weapon in a vehicle it is considered a concealed weapon when it is concealed in a manner readily accessible to the driver or passenger of the vehicle. The firearm must be unloaded, and neither the firearm nor any ammunition being transported is readily accessible or is directly accessible from the driver/passenger compartment of such transporting vehicle.
I believe this is addressing transporting the weapon. Example; You are headed out for a day of shooting, and your handgun, and ammunition is zipped up in your range bag. I would imagine you could have problems if you have your range bag within reach of anyone in the vehicle when you are driving. The accessibility part in this regulation has nothing to do with how concealed is defined as "any portion being capable of being seen". I do understand how the accessibility thing becomes the primary factor when making the charge, but it should not. Accessibility does not make the weapon concealed, "no portion of the handgun capable of being seen" is supposed to be the bar that makes it concealed.
Fly, you posed the question if all Nebraska LEO are doing this? I believe the "in plain sight" language has been around so long, most still turn to that language to make the charge. Again, I am sure this comes from how they were trained. They all have to go through one of the 2 LE training facilities in Grand Island, maybe that is not where it originates, but it would certainly be a good place train what the statute does say.
Dave
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Davep, Omaha has it's own training Academy and does not send it's officers to Grand Island/Hastings.
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Some info for thought. State Vs Hill (577N.W 2d 259-1998) (254 Neb 460) Hill was charged in Omaha with carrying a concealed weapon. The arresting officer testified that She could see the handle up to the hammer when she approached the driver in the vehicle. The city filed two charges one of carrying a concealed weapon and the unlawful carrying of a concealed weapon. The Nebraska Supreme Court ruled that since the handle and hammer of the weapon was observed by the officer it could not be considered concealed.
Now Mr. Hills conviction for reckless driving was upheld. Lesson. Don't do things that attract attention.
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... State Vs Hill ... The Nebraska Supreme Court ruled that since the handle and hammer of the weapon was observed by the officer it could not be considered concealed.
To which most rational people would say, "Duh!" Or at least I'd hope that's what they would say. With most holsters, those same parts of a gun are the only parts visible when people overtly "open carry". Why should sitting in a car be any different?
If I carried a single action revolver in a flap holster, all you could see is the bottom of the butt when viewed from a certain angle, but I wouldn't consider a Blackhawk in a flap holster concealed. I'd think most reasonable people would consider the verb "conceal" to mean to put something away from view with the purpose that others wouldn't be aware of its presence. The etymology of the word simply comes from "to hide".
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Davep, Omaha has it's own training Academy and does not send it's officers to Grand Island/Hastings.
I did not know Omaha had it's own training facility, I stand corrected.
This incident did not happen in one of the larger metropolitan area such as Lincoln or Omaha, it happened in mountain time zone.
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State Vs Hill (577N.W 2d 259-1998) (254 Neb 460)
Interesting read...And I found some info related to court decisions regarding when a handgun is concealed based on a repealed statute 28-1001, but I can't find the language of the repealed law.
This court previously defined what it means for a weapon to be concealed in violation of the law in terms of Neb.Rev.Stat. § 28-1001 (R.R.S.1943), which, prior to its repeal in 1977, was substantially similar in its operative language to Omaha Mun.Code, § 20-192. In Kennedy v. State, 171 Neb. 160, 170, 105 N.W.2d 710, 718 (1960), we stated that "absolute invisibility to other persons is not indispensable to concealment of a weapon on or about the person of a defendant, and that a weapon is so concealed when it is hidden from ordinary observation...." What is clear from the evidence in this case is that Cornett could see the weapon while she was standing outside of the vehicle. That Hill pointed out the existence of the weapon is corroborative of his obvious intent not to conceal the weapon. Giving every inference to the State, we find as a matter of law that the evidence in this case is insufficient to convict Hill of the charge of carrying a concealed weapon, and, therefore, we reverse the judgment and dismiss the conviction on this charge.
Perhaps this is the source for the "plain view" requirement, but the law it was based on was repealed, and I have no way (so far) to read the repealed statute
and see if the language concerning concealed carry was clearer than mud
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I found the language of Neb. Rev. Stat. sec. 28-1001 (Reissue 1975), and it does not define concealed or reference "plain view". The gist of that statute really isn't a whole lot different than the current statute at Neb. Rev. Stat. sec. 28-1202. The annotations for the old statute reference the case also cited in Dan's excerpt, Kennedy v. State, 171 Neb. 160 (1960). In that case, the Nebraska Supreme Court said that "a weapon is so concealed when it is hidden from ordinary observation and is readily accessible on his person or in a motor vehicle operated by defendant." Kennedy, 171 Neb. at 170-71.
Obviously, changes to the statutes that now include a definition of "concealed" should override the Kennedy case. Since the Legislature has defined "concealed", there is no longer any need for the Court's definition.
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Since the Legislature has defined "concealed", there is no longer any need for the Court's definition.
There is a caveat...the statute gives the definition of a concealed handgun "for the purposes of the Concealed Handgun Act" so it may be limited by that statement.
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Just a little trivia regarding the case that Dan quoted from in his post, State v. Hill, 254 Neb. 460 (1998); the Cornett that is mentioned in that case is former Omaha Police Officer and former State Senator Abbie (Irene) Cornett. The guy was cited for carrying a concealed weapon after he told then-Officer Cornett that he had a loaded gun in the car, and Cornett admitted that she could see it.
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There is a caveat...the statute gives the definition of a concealed handgun "for the purposes of the Concealed Handgun Act" so it may be limited by that statement.
Good point, Dan.
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the Cornett that is mentioned in that case is former Omaha Police Officer and former State Senator Abbie (Irene) Cornett. The guy was cited for carrying a concealed weapon after he told then-Officer Cornett that he had a loaded gun in the car, and Cornett admitted that she could see it.
Yes, that is her "claim to fame".