NFOA MEMBERS FORUM
General Categories => Carry Issues => Topic started by: Hondo on November 29, 2016, 11:17:00 AM
-
I've been poring over the Nebraska CHP law, but I have a question: If I have a handgun locked in a steel box under the seat of my vehicle.....am I "carrying" a concealed handgun ? Or am I only "carrying" a concealed handgun if it is on my person or readily accessible ?
I was driving a commercial truck and was flagged down after pulling across the scale for a vehicle inspection. Since it wasn't a 'usual' contact by law enforcement, and my handgun was locked in a steel box in the cab......I didn't 'notify' the officer.......he inspected the truck and at the end asked for my license and registration.....he was a little upset that I didn't 'notify'......I told him the gun was locked in a steel box, he said it didn't matter....it was in the vehicle.... He let me off because it wasn't a 'usual contact'......but I'm curious... Thanks in advance.
-
IMHO You were carrying concealed and should have notified... unless it was not loaded, without any ammunition in proximity, and it was inaccessible from anyone in the cab... then you may have met the requirements for Safe passage under federal law, or you may have been arrested and had your permit revoked if the officer decided to let a judge sort it out.
Is it really worth taking that chance?
-
I agree with Dan, you probably SHOULD have notified the Officer. I always recommend to folks to notify the Officer (if you are a permit holder) even if you are not carrying. This way when an Officer runs your name, there aren't any surprises to them.
If it was locked in a case under the seat and not readily accessible, then technically I would say you were NOT carrying concealed.
Of course I'm not a Attorney, so my opinion is only my two cents.
-
If it was locked in a case under the seat and not readily accessible, then technically I would say you were NOT carrying concealed.
The fact that it was loaded takes it out of clear transportation situations (not accessible to the driver, unloaded for transportation, etc), and into a grey area where it isn't well-defined (not accessible, but not correct according to interstate transportation rules either)....which is another way of saying "we don't know because there isn't a clear answer, so the only way to find out would be in court."
...and you probably don't want to do that.
Note: This isn't me disagreeing with Chris, I personally think you can't be "carrying" when it is locked away from you. However, that doesn't mean that law enforcement will agree, and the law itself on this is....non-specific.
My personal opinion is that if you have a loaded gun in the car, inform. If it is unloaded but on your person, inform. If it is unloaded in a case, don't worry about it.
-
Wanted: Sage Advice from the CHP Gurus....
Not really a CHP Guru, but here are some thoughts that may be useful:
Let's start with "usual" contact." No "usual" contact provision is made in the NE Concealed Handgun Act.
The term "contact" is quite specific:
=====================================
NEBRASKA ADMINISTRATIVE CODE
TITLE 272/CHAPTER 21
SECTION 2 - DEFINITIONS
002.04 Contact With Emergency Services Personnel shall mean that the permit holder is provided treatment by emergency services personnel in the course of their official duties.
002.05 Contact With a Peace Officer shall mean that the permit holder has been stopped, detained, questioned, or addressed by a peace officer for an official purpose or in the course of his or her official duties.
=====================================
You were clearly in "contact" with a sworn law enforcement officer in the course of his official duties.
What is less clear is the determination of when a handgun is being carried concealed and when it is simply being legally transported.
Federal transport condition is described in 18 USC 926a Federal Code, wherein the handgun is not readily accessible from within the passenger compartment. For an expanded case law definition of readily accessible, well....best to consult an attorney who is knowledgeable in federal and state firearms law.
My very uneducated non-lawyer guess is that your (unloaded?) handgun was not readily accessible to you in the legal sense, because it wasn't in a grab-and-shoot condition, due to its inclusion in a locked container.
However, if that locked container happened to be the glove compartment or console, then the handgun is (a) readily accessible and (b) an actual concealed handgun.
Now: Should you have notified the LEO of the handgun at the very get-go of the contact?
In the immortal phraseology of the Great Sarah Palin: Yew-Betcha!!!
Legally required? (Most Likely) NO
A very reasonable, sensible courtesy: YEWBETCHA!!
The LEO was gonna find out anyhow. Proof of Case: He actually did.
So........why not get the fact of the handgun out in the open at the very start of the contact?? Most folks don't want to deal with an unhappy LEO, especially if we made him that way.
Bottom Line Recommendation:
If you are a CHP Holder, Notify the LEO and Tell Him What's Going On. That is, "I do" or "I do NOT" have a concealed handgun in my possession at this time.
Because You Asked.
FWIW
sfg
-
One More Item:
You didn't say whether the handgun was "loaded" or not.
Makes a Big Difference.
Ahhhhhhhhh............ And if we only knew the complete, full, accurate, legal definition of "loaded".
sfg
-
There is NO definition of a "Loaded Handgun" in Nebraska law that I am aware of.
"Unloaded and locked in a case" is what comes from Federal law....... which is dealing with Interstate transportation
-
The fact that it was loaded takes it out of clear transportation situations (not accessible to the driver, unloaded for transportation, etc), and into a grey area where it isn't well-defined (not accessible, but not correct according to interstate transportation rules either)....which is another way of saying "we don't know because there isn't a clear answer, so the only way to find out would be in court."
...and you probably don't want to do that.
Note: This isn't me disagreeing with Chris, I personally think you can't be "carrying" when it is locked away from you. However, that doesn't mean that law enforcement will agree, and the law itself on this is....non-specific.
My personal opinion is that if you have a loaded gun in the car, inform. If it is unloaded but on your person, inform. If it is unloaded in a case, don't worry about it.
Its Ok to disagree with me :-)
-
They let you run the lights and siren when you inform them ... or show them your CHP badge .....
-
They let you run the lights and siren when you inform them ... or show them your CHP badge .....
It even gets better than that...........
They Don't Shoot You.
sfg
-
Its Ok to disagree with me :-)
Wouldn't dare.
Now.......YOU are speaking of Nebraska Law.
Tom and I are speaking of 18 USC 926A/Federal Code.
We are all correct.
Ain't it Great!!!
sfg
-
...reading back, it occurs me to that for some reason I thought someone said it was loaded.
On reading again, I can't find that. So....yeah. Never mind!
-
this is why i love this forum. so much knowledge.
-
Since we're on this subject, not meaning to hi-jack the thread however, hypothetically if I have a pistol in the glove box while I'm a passenger (Legal CHP) is everyone in the vehicle carrying concealed? I know this has been discussed in the past but it doesn't hurt to refresh everyones memory.
-
Since we're on this subject, not meaning to hi-jack the thread however, hypothetically if I have a pistol in the glove box while I'm a passenger (Legal CHP) is everyone in the vehicle carrying concealed? I know this has been discussed in the past but it doesn't hurt to refresh everyones memory.
Here's the legal skinny on that question:
=======================
28-1212.
Presence of firearm in motor vehicle; prima facie evidence.
The presence in a motor vehicle other than a public vehicle of any firearm or instrument referred to in section 28-1203, 28-1206, 28-1207, or 28-1212.03 shall be prima facie evidence that it is in the possession of and is carried by all persons occupying such motor vehicle at the time such firearm or instrument is found, except that this section shall not be applicable if such firearm or instrument is found upon the person of one of the occupants therein.
=======================
.
sfg
-
Since we're on this subject, not meaning to hi-jack the thread however, hypothetically if I have a pistol in the glove box while I'm a passenger (Legal CHP) is everyone in the vehicle carrying concealed? I know this has been discussed in the past but it doesn't hurt to refresh everyones memory.
Yes discussed here before but I look forward to the answers and would also add... are my minor children in the backseat criminals? I've always been curious about that.
Dad, Mom and Kids are on a road trip. Dad takes off his uncomfortable IWB holster during the long drive and stows it under his seat. Mom and Dad have CHPs so are GTG. What's the status of the 13 and 15 y.o. kids in the back seat?
-
Yes discussed here before but I look forward to the answers and would also add... are my minor children in the backseat criminals? I've always been curious about that.
Dad, Mom and Kids are on a road trip. Dad takes off his uncomfortable IWB holster during the long drive and stows it under his seat. Mom and Dad have CHPs so are GTG. What's the status of the 13 and 15 y.o. kids in the back seat?
Yeah, always seemed to me to be all sorts of legal landmines, that's why I opened this up for more discussion. Accessible not accessible, loaded not loaded, things that make you go , hmmmmmmm. And I would rather not be a test case.
-
Here's the legal skinny on that question:
=======================
28-1212.
Presence of firearm in motor vehicle; prima facie evidence.
The presence in a motor vehicle other than a public vehicle of any firearm or instrument referred to in section 28-1203, 28-1206, 28-1207, or 28-1212.03 shall be prima facie evidence that it is in the possession of and is carried by all persons occupying such motor vehicle at the time such firearm or instrument is found, except that this section shall not be applicable if such firearm or instrument is found upon the person of one of the occupants therein.
=======================
.
Precisely the reason my wife got her CCP. This way I could drive without the gun in the holster and she wouldn't get in trouble.
-
Precisely the reason my wife got her CCP. This way I could drive without the gun in the holster and she wouldn't get in trouble.
But what about my hypothetical with the kids in the backnseat? Is a three-year-old strapped in a car seat a criminal if Dad puts his weapon in the center console on a long road trip? What if he's ten years old? What if he's seventeen and still to young to get a CHP?
If an adult from the Panhandle is taking his high school-age kids and their teenage friends on a road trip to Omaha in a 15 person van, and he unwisely puts his pistol in the driver's side door storage, did he make a criminal out of a dozen people without their even knowing that he was in possession of a pistol?
If so this law needs changed.
-
But what about my hypothetical with the kids in the backnseat? Is a three-year-old strapped in a car seat a criminal if Dad puts his weapon in the center console on a long road trip? What if he's ten years old? What if he's seventeen and still to young to get a CHP?
If an adult from the Panhandle is taking his high school-age kids and their teenage friends on a road trip to Omaha in a 15 person van, and he unwisely puts his pistol in the driver's side door storage, did he make a criminal out of a dozen people without their even knowing that he was in possession of a pistol?
If so this law needs changed.
That's what I'm referring to, seems vague and many scenarios not addressed.
-
The reason for 28-1212 is to prosecute the four gang bangers riding around in a car, they get pulled over and cop finds a gun under the seat. Amazingly none of the four gang bangers new that this gun was in the car. 28-1212 is then used to prosecute all of them for the carrying a concealed weapon charge.
I'll go out on a limb here and say..... Nobody is going to get arrested because they have their wife or kid in the car and a gun in the glove compartment......
Now, if you wife is not a CHP holder and there is a gun in the glove box...... And your wife is drunk and belligerent, throwing beer bottles at passing cars..... And doing otherwise completely stupid things, would it be possible the Police charge her with CCW using that 28-1212???? Possibly
-
I figured it was intentionally vague for a reason. When are you holding your next legal aspects class?
-
This anti gang law was written before any legal way to CCW existed. My understanding is that it is applied to any unclaimed weapons and would only apply to illegally possessed weapons by persons who do not have a permission slip.
I wish I could recall just where I found that information so it may or may not be accurate and IANAL. I agree that the statutes language is very troubling, and in light of today's reality of legal CCW may have unintended consequences if the letter of the law is strictly adhered to.
-
Thanks for all the info. Here's another question: Same 'loaded' G27 in the same locked steel box under the passenger seat (because it won't fit under the driver's seat). I go to my brother's house and he talks me into a beer. I drive home and don't signal a turn and get stopped. I inform that I have a CHP and where the gun is.......did I violate the 'no alcohol' while 'carrying' ?????
-
Thanks for all the info. Here's another question: Same 'loaded' G27 in the same locked steel box under the passenger seat (because it won't fit under the driver's seat). I go to my brother's house and he talks me into a beer. I drive home and don't signal a turn and get stopped. I inform that I have a CHP and where the gun is.......did I violate the 'no alcohol' while 'carrying' ?????
Same issue as before. The "loaded but not on your person, concealed but in a locked case" thing means it is a grey area....so it depends.
That's not a question that the law is clear on, and there is no case law regarding it. As such, it is a question that will ONLY be answered in court...and you don't want to be the test case.
If it IS decided that it is a concealed weapon for which you are responsible, and the officer determines that is alcohol on your breath and administers a test....then yes, you are going to have a problem. (In court, but nonetheless a problem.)
In a situation like that, if you DO have a drink, unload the gun, have no ammunition in the locked case, and have the locked case not within your arms reach. Given that, it would then fall (arguably, but again, our laws are not clear about much on this topic) in the "transportation" mode, not a "concealed carry" mode, and you wouldn't be breaking any law.
For me personally, if there is a loaded gun in the car, it is on my person. (I see no reason to have a loaded gun in the car where I can't get to it, unless I'm locking it in the car when I am forced to go into a place where it isn't legal to carry.) If the gun isn't on my person and I'm in the car, it is unloaded and locked without ammunition in the case.
-
You could simply convert to Open Carry, even with the alcohol involvement, just by placing the handgun in a location in the automobile where it is not fully covered nor hidden from plain sight. Doing so would finesse the concealed carry and alcohol issues. And the handgun would still be available for self-defense.
Of course, doing so would immediately shift the situation to an entirely new paradigm and possibly involve certain other issues, some of them perhaps unpleasant.
And a Prudent Person might even suggest that you consider the use of the trunk compartment on your automobile. Unloaded/cased/locked, yada-yada-yada...........
Even then, it's ever a sound practice to say, "Officer, I DO/DO NOT have a concealed handgun on my person."
FWIW,
sfg
-
I figured it was intentionally vague for a reason. When are you holding your next legal aspects class?
Please shoot me an email chris@neccwtraining.com and I will notify you when another is scheduled
Thanks!
-
Please shoot me an email chris@neccwtraining.com and I will notify you when another is scheduled
Thanks!
Done.