NFOA MEMBERS FORUM
General Categories => Laws and Legislation => Topic started by: loader18 on August 09, 2014, 11:30:21 AM
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I'm a Nebraska CHP holder and want to make sure i am clear on Nebraska Statute 6.1.12 28:1212 that deals with my pistol in my vehicle. If I understand correctly, the statute means that if i have my handgun loaded and anywhere in the vehicle, the law assumes all persons in the vehicle are "in possession" of my firearm and to ensure I am the only one in the vehicle to be considered in possession of my pistol, it has to be on my person. Is this right?
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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.
So, yes, if it is in the vehicle it is deemed to be in the possession of every person in the vehicle. The only way it can be claimed to be in the possession of just one person is for it to be physically on the person claiming it as being the one possessing it. This also works the other way...if your buddy has a gun in the car under one of the seats, you can be charged with possessing it as well.
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Another law aimed at 'stopping gang violence' that only accomplishes further infringement on law abiding citizens.....thanks for that one Brad 'Good Time Law' A$$Ford!....you won't be missed by us in the legislature! :-X
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Few gray areas like every law. Someone with a CHP can't conceal a long gun, if I carry one in my truck I like to have it in a gun case, technical that makes it concealed.
Hmmmmm. ???
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Thank you for your help barmandr
So if I need to go into a place that does not allow conceal carry and my teenage son wants to stay in the car and listen to his dub step music, I leave the pistol in the car unloaded (maybe locked in the glove box) and take the magazine in the store with me. Is that the way to handle this situation?
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Few gray areas like every law. Someone with a CHP can't conceal a long gun, if I carry one in my truck I like to have it in a gun case, technical that makes it concealed.
Hmmmmm. ???
Huh ???? Please reference statute .....
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Does this mean that a pistol in a lock box, locked is concealed for everybody, or does that mean that just I have possession of it? ???
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Thank you for your help barmandr
So if I need to go into a place that does not allow conceal carry and my teenage son wants to stay in the car and listen to his dub step music, I leave the pistol in the car unloaded (maybe locked in the glove box) and take the magazine in the store with me. Is that the way to handle this situation?
I think the trunk unloaded and locked would work. I wouldn't leave it in passenger area.
Huh ???? Please reference statute .....
Nebraska has a CHP (concealed handgun permit) it doesn't allow you to conceal long guns. You can look up the statute.
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Does this mean that a pistol in a lock box, locked is concealed for everybody, or does that mean that just I have possession of it? ???
I have often wondered this same thing, never could get a straight answer, so I avoid it with someone that doesn't have a CHP.
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All this personal "interpretation" of firearm storing in vehicle laws and such are fine, but IMO these questions are best directed to the Nebraska AG. You'll also have the response on record.
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AG can not give his legal opinion unless the request comes from the proper channels, and even then, it is only an opinion and does not end the debate until a court rules one way or the other.
If we want an AG's opinion we need a sitting state legislator to ask for one
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Nebraska has a CHP (concealed handgun permit) it doesn't allow you to conceal long guns. You can look up the statute.
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You threw that comment out there...so you would want to reference if you are stating such. I don't need to look up a statute that does not exist. I am going to say you are absolutely INCORRECT in your comment. There is nothing in state statute forbidding concealing a long gun. Because Nebraska has a "Concealed Handgun Permit", one should not conclude a long gun is ILLEGAL to conceal any more than conclude Open Carry is ILLEGAL. With all due RESPECT, if you are attempting to educate another member on the "law", you really need to source yourself ...... and I will be the FIRST one to eat crow if you can source your comment about concealing a long gun.
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The CHP does not allow you to carry a long gun concealed. It only allows the concealed carry of a hand gun which the state of NE defines as "...any firearm with a barrel less than sixteen inches in length or any firearm designed to be held and fired by the use of a single hand" (Nebraska Revised Statute 69-2429).
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Nebraska has a CHP (concealed handgun permit) it doesn't allow you to conceal long guns. You can look up the statute.
You threw that comment out there...so you would want to reference if you are stating such. I don't need to look up a statute that does not exist. I am going to say you are absolutely INCORRECT in your comment. There is nothing in state statute forbidding concealing a long gun. Because Nebraska has a "Concealed Handgun Permit", one should not conclude a long gun is ILLEGAL to conceal any more than conclude Open Carry is ILLEGAL. With all due RESPECT, if you are attempting to educate another member on the "law", you really need to source yourself ...... and I will be the FIRST one to eat crow if you can source your comment about concealing a long gun.
I didn't have to look it up because my CHP instructor C. Zeeb does such a good job, it's clear as my name from 5 years ago.
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Or should I say that, I didn't stay at a Holiday Inn last night but I had Zeeb for a instructor. :laugh:
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barmandr... you are correct in your citation with regards to the DEFINITION of a HANDGUN.... However (and I guess I was unclear when I asked for a clarity, and my last post was technically and definitely WRONG by not keeping to the SPECIFIC example FarmerBob used....so I will eat a little crow for giving my post a blanket statement), FarmerBob alluded to idea of him carrying a long rifle in a "gun case" in "his truck" was against the law. 28-1202 "illegal to carry a concealed weapon on or about your person (except handgun with a permit)"
It would be INCORRECT to say a long rifle/gun is illegal concealed carry if cased per FarmerBob's example. "About your person" pretty much mean readily accessible.
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You might want to eat a little more crow. I didn't say it was against the law rather, I threw it out there as something that was a "gray area" a question????????????????? (Would like an answer)
Quiet trying to put words in my mouth!
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My apologies... I saw emoticons and not question marks. In the future I will "Quiet (sic) trying to put words" in your mouth. CAW CAW ....
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It's all good bullit. No worries.
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(http://i379.photobucket.com/albums/oo234/barmandr/crow_zps956b61a4.png)
Yummy... (http://www.easyfreesmileys.com/smileys/lol-049.gif) (http://www.easyfreesmileys.com/facebook-smileys.html)
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So what is the dang law regarding long guns in my trunk? It is unclear to me and have heard differing opinions. Can I carry a loaded rifle in my trunk? Or does it have to be cased and unloaded?
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Thanked my instructor told me one is considered in possession of a concealed handgun if the gun is in your vehicle and its loaded. I dont think it matters if its locked, its still loaded so its considered conceaked. I dont know about if its in plain view but really, who does that anyway? He said having the gun unloaded and ammo separated from the gun and not readily accessible to occpants in the vehicle is considered "transporting a firearm" which is lawful. I don't know how "transporting" works with someone under age, or if there are any real concerns with that. Someone please correct me if I'm wrong
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With the exception of shotguns, you are legally allowed to have a loaded firearm in your vehicle provided it is in plain sight. This is state law.
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Few gray areas like every law. Someone with a CHP can't conceal a long gun, if I carry one in my truck I like to have it in a gun case, technical that makes it concealed. Hmmmmm. ???
I think the problem that people are having with this statement is that it isn't specific enough to determine the actual answer.
For example, if your rifle was encased but unloaded---then no, you aren't necessarily carrying concealed. Instead, the laws you might be operating under would be those for transporting firearms, which are very different. For proper transportation there are some other requirements also (which is a different discussion) but again---merely having a firearm in a case does not automatically make it a concealed weapon.
Matter of fact, having a handgun (which is specifically enumerated in the concealed weapon statute) in a case does not make it a concealed weapon necessarily. For example, if I have an unloaded handgun in a locked case at the back of my car (my car doesn't have a trunk) that is not a concealed weapon, instead it is merely a firearm being transported legally.
So----going back to what started a lot of this: "Someone with a CHP can't conceal a long gun, if I carry one in my truck I like to have it in a gun case, technical that makes it concealed. "
Correct in that having a concealed carry permit does not allow having a concealed long gun, incorrect that having one in your truck in a gun case is automatically an illegally concealed weapon.
For folks wanting to know about transportation, here is the federal law regarding transporting a firearm:
http://www.law.cornell.edu/uscode/text/18/926A (http://www.law.cornell.edu/uscode/text/18/926A)
Basically:
--Firearm unloaded
--Firearm and ammunition not accessible from the passenger compartment (i.e. in the trunk)
--If vehicle has no trunk, firearm and ammunition in a locked container other than the glove box or console.
So an unloaded rifle and a box of ammo (or a loaded magazine NOT in the rifle) in your trunk is legal for transportation. An encased-and-locked unloaded rifle in the passenger area where the ammo is also locked up is similar legal for transportation.
If the firearm is loaded, that takes you out of the protection of the federal transportation statute, and leaves you with state laws regarding concealed and open carry.
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For folks wanting to know about transportation, here is the federal law regarding transporting a firearm:
http://www.law.cornell.edu/uscode/text/18/926A (http://www.law.cornell.edu/uscode/text/18/926A)
Basically:
--Firearm unloaded
--Firearm and ammunition not accessible from the passenger compartment (i.e. in the trunk)
--If vehicle has no trunk, firearm and ammunition in a locked container other than the glove box or console.
So an unloaded rifle and a box of ammo (or a loaded magazine NOT in the rifle) in your trunk is legal for transportation. An encased-and-locked unloaded rifle in the passenger area where the ammo is also locked up is similar legal for transportation.
If the firearm is loaded, that takes you out of the protection of the federal transportation statute, and leaves you with state laws regarding concealed and open carry.
Be advised, that section of FOPA only applies to interstate transport of firearms, not intrastate transport.
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Be advised, that section of FOPA only applies to interstate transport of firearms, not intrastate transport.
I'm aware that the code says:
"18 U.S. Code § 926A - Interstate transportation of firearms"
And yet, the law itself says:
"Notwithstanding any other provision of any law or any rule or regulation of a State or any political subdivision thereof, any person who is not otherwise prohibited by this chapter from transporting, shipping, or receiving a firearm shall be entitled to transport a firearm for any lawful purpose from any place where he may lawfully possess and carry such firearm to any other place where he may lawfully possess and carry such firearm if, during such transportation..."
...in which it makes NO mention of any interstate requirement. And if I recall correctly (someone please inform me if they have data contradicting this) this specific wording superceded and replaced wording that specifically mentioned interstate commerce with wording that not only does NOT mention "interstate" but does not even mention "commerce".
Also if I recall correctly: In Nebraska overall as a state (so, ignoring Omaha's stupid local rules), open carry is legal everywhere without respect to weapon type. So if any weapon is in the open in the car, loaded or unloaded, that's legal. If it isn't in the open...
With respect to "concealed" the only definitions in the Nebraska State Statutes are: "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;"
(from http://www.nebraskalegislature.gov/laws/statutes.php?statute=69-2429 (http://www.nebraskalegislature.gov/laws/statutes.php?statute=69-2429) )
And on a related note: "any person who carries a weapon or weapons concealed on or about his or her person, such as a handgun, a knife, brass or iron knuckles, or any other deadly weapon, commits the offense of carrying a concealed weapon" (from http://www.nebraskalegislature.gov/laws/statutes.php?statute=28-1202 (http://www.nebraskalegislature.gov/laws/statutes.php?statute=28-1202) )
As such, having any firearm in a case in the passenger compartment of a vehicle, loaded or unloaded, might be construed as being "concealed" as it is "on or about your person" and "totally hidden from view." (And rifles and shotguns are obviously "deadly weapons" by definition of statute.)
However, since the "totally hidden from view" specifically references handguns, and having a firearm in a locked case in the back of a car without a trunk makes no sense in terms of calling it "concealed," falling back on the requirements listed specifically for legal transportation of a firearm under federal law seems to me to be the clearest way to not have an issue. (Especially since the federal law itself was re-worded to NOT include any mention of interstate commerce.)
Because without something like that, technically speaking any time you go to the range with a rifle or shotgun in a bag, or a case, or a lockbox, then you are illegally carrying a concealed weapon---since our CCW permits only allow for handguns. In other words, unless all your long guns are in the open, you cannot help but illegally carry a concealed weapon! (Again, if you don't have a trunk, which many people these days do not.)
...unless there is something else that can clarify the difference between transport and concealment.
There is a nicely blurred and undefined line between a handgun loaded in a car under your seat (concealed) and a handgun unloaded locked in a case in the back of the car without a trunk (is that still concealed? Arguably, it is, and yet, obviously it shouldn't be)---and for long guns, there is no way around "concealed" being illegal, since we ONLY allow permits for handguns.
(Unless, of course, you want to argue in court using the affirmative defense regarding your concealment of a rifle....wouldn't suggest that.)
Again----so dropping back to a federal law specifically listing firearms transport, proper method of, "a firearm for any lawful purpose from any place where he may lawfully possess and carry such firearm to any other place where he may lawfully possess and carry such firearm," ---seems to me to be about the only clear way to make certain that you won't have any "concealed weapon" issues.
Otherwise, (unless you know something different, Clark? You are a lawyer, I'm not)----EVERY carry of a long gun in any sort of case, box, sleeve, etc, in the passenger section of a vehicle is actually illegal carry of a deadly weapon.
If you have a trunk, or a storage compartment not available from the passenger area, you don't have this problem with guns----because "concealed" includes the "on or about his person" section, and your trunk doesn't count. Technically, you can keep 'em loaded and stored there however you like. If you DON'T have a trunk, however, (like many hatchback cars these days, SUVs, etc) then the "on or about his person" section (we assume, and could obviously easily effectively argue in court) could then be based on the federal solution to this problem, which is the unloaded/lockbox.
Quick Summation: Nebraska law currently technically makes you guilty of carrying a concealed weapon if you have a long gun in a case in the passenger compartment of your vehicle, whether loaded or unloaded, and whether or not you have a CHP. (Right, Clark?)
My response to that is simply that transporting a firearm according to federal law, which does not reference interstate transportation in the wording of the code but instead says "from ANY place...to ANY place", and which does specifically say "Notwithstanding any other provision of any law or any rule or regulation of a State or any political subdivision thereof..." means that if it goes to court, it'll be interesting since without the federal transportation statute, lots of folks all the time are guilty of illegally carrying a concealed deadly weapon in their car without knowing it. (Whether going hunting or to the range.)
...oh, just remembered (yeah, I'm writing more): There is ONE case in the NE State Statutes in which they even MAKE you carry a long gun encased on a vehicle. Seeing as I'm pretty sure that the state statutes can't force you to illegally carry a concealed deadly weapon, I'd also mention here that the state statute's solution to the problem matches the federal one.
"...or for any person to carry or possess any firearm, bow and arrow, or other projectile device on a snowmobile unless such bow and arrow or projectile device is enclosed in a car carrying case or such firearm is unloaded and enclosed in a carrying case."
http://www.nebraskalegislature.gov/laws/statutes.php?statute=60-6,342 (http://www.nebraskalegislature.gov/laws/statutes.php?statute=60-6,342)
Given the whole thing above, I again suggest:
Transportation of a firearm (as opposed to concealed carrying said firearm) can be achieved by having said firearm unloaded in a locked case out of reach, or held in a compartment separate from the passenger area.
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So what is the dang law regarding long guns in my trunk? It is unclear to me and have heard differing opinions. Can I carry a loaded rifle in my trunk? Or does it have to be cased and unloaded?
You cannot carry a loaded SHOTGUN in your vehicle. Only a loaded rifle, which makes no sense.
Nebraska does not generally require firearms in vehicles to be unloaded or locked, although
Nebraska prohibits carrying a loaded shotgun in or on any vehicle on any highway.1
If the vehicle is in a safe school zone, a person may still possess a firearm within the vehicle if 1) he or she is an adult nonstudent and the firearm is unloaded and encased or in a locked gun rack in or on the vehicle; or 2) he or she is a concealed handgun permit holder and the handgun is carried concealed.2
Nebraska law allows a concealed handgun permit holder to carry a concealed handgun in a vehicle even in the parking area of a location where concealed handgun possession is generally prohibited. The only requirement is that, prior to exiting the vehicle, the permit holder must lock the handgun inside the glove box, trunk or other compartment of the vehicle, or a storage box securely attached to the vehicle.3
An employer may prohibit permit holders from carrying concealed handguns in vehicles owned by the employer.4
Nebraska prohibits the possession of a shotgun or rimfire rifle while operating or riding on a snowmobile unless the long gun is unloaded and enclosed in a carrying case.5 The state also prohibits the owner of a snowmobile from allowing any person to operate the snowmobile while possessing a shotgun or rifle unless the shotgun or rifle is unloaded and encased.6
1.Neb. Rev. Stat. § 37-522. [?]
2.Neb. Rev. Stat. § 28-1204.04(1). [?]
3.Neb. Rev. Stat. § 69-2441(3). [?]
4.Neb. Rev. Stat. § 69-2441(4). [?]
5.Neb. Rev. Stat. § 60-6,342. [?]
6.Neb. Rev. Stat. § 60-6,344. [?]