NFOA MEMBERS FORUM
General Categories => Carry Issues => Topic started by: bwarner on March 23, 2013, 12:39:27 PM
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Reading the Administrative Code Charter 21 for conceal carry.Are you considered by law a conceal carry if the weapon is in a locked safe in your car that you occupy?
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Loaded and in the passenger area, probably
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Loaded and in the passenger area, probably
Agreed
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I'd always heard if it wasn't unloaded, locked up, and out of reach, it was a problem.
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You'd think that as long as there is no practical way you could use the weapon to defend yourself, those who have no respect for the right to bear arms wouldn't have a problem with it. But that assumes common sense being part of the law, which is a really big assumption. So it's best to not take any chances.
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So a hypothetical here...
If I'm out and about and a friend calls to meet up for a drink, I would lock up my pistol in my truck. After a drink, I drive home (just one drink, with food). Since there is alcohol in my blood, I can't legally carry a concealed firearm.
With the pistol locked in a case secured to my truck's center console, am carrying a concealed handgun or not???
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locked in a case secured to my truck's center console
My guess is that it doesn't meet the "out of reach" part of fiream transportation.
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So a hypothetical here...
If I'm out and about and a friend calls to meet up for a drink, I would lock up my pistol in my truck. After a drink, I drive home (just one drink, with food). Since there is alcohol in my blood, I can't legally carry a concealed firearm.
With the pistol locked in a case secured to my truck's center console, am carrying a concealed handgun or not???
That depends on whether or not you unloaded it, and stored the ammunition separate from it.
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That depends on whether or not you unloaded it, and stored the ammunition separate from it.
In this case, the driver did not unload the pistol.
So this driver would have to rely only on the 4th Amendment protections against searches, and he'd need to remember that if ever asked to submit to a vehicle search.
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In this case, the driver did not unload the pistol.
So this driver would have to rely only on the 4th Amendment protections against searches, and he'd need to remember that if ever asked to submit to a vehicle search.
Although, with alcohol on the driver's breath, the officer might make a case for probable cause if, let's say, the driver had a NRA or NFOA or similar decal on his or her vehicle.
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Although, with alcohol on the driver's breath, the officer might make a case for probable cause if, let's say, the driver had a NRA or NFOA or similar decal on his or her vehicle.
I'm thinking that one would fail horribly badly in court if it even got that far, and the officer and department would end up getting sued, and lose.
(Having a sticker isn't grounds for anything, and just because someone has alcohol on their breath doesn't justify a search of locked containers in a vehicle.)
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Having a sticker isn't grounds for anything, and just because someone has alcohol on their breath doesn't justify a search of locked containers in a vehicle.)
You don't have to have any stickers: A week ago Sunday, I got pulled over in Papillion by a Sarpy County Deputy for a headlight out. He asked me if I had my gun, and if so, where was it, and said he asked because it came up when he ran my plates, it came up ...... if I'd have had even a little alcohol on my breath, I'd have been in the soup.
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You don't have to have any stickers: A week ago Sunday, I got pulled over in Papillion by a Sarpy County Deputy for a headlight out. He asked me if I had my gun, and if so, where was it, and said he asked because it came up when he ran my plates, it came up ...... if I'd have had even a little alcohol on my breath, I'd have been in the soup.
Was this after he checked your license? I didn't think CHP status was linked to vehicle registration, just to DL number.
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You don't have to have any stickers: A week ago Sunday, I got pulled over in Papillion by a Sarpy County Deputy for a headlight out. He asked me if I had my gun, and if so, where was it, and said he asked because it came up when he ran my plates, it came up ...... if I'd have had even a little alcohol on my breath, I'd have been in the soup.
Doesn't justify a search of locked containers in the car. Again---just because you have a NRA sticker, a CCW permit, or anything at all does not legally justify a search of locked containers in the car just because you have alcohol on your breath.
And as someone else said---it came up when he ran your license, yes? Not your plates.
Again---if you are pulled over for whatever reason, courts have said that police officers are justified in a quick search of areas close at hand to you in the car. If you do not consent to a search, the fact that you have an NRA sticker on your car, a CCW permit, and are wearing a shirt that proudly proclaims the 2nd amendment is the foundation of all other rights, AND have alcohol on your breath, is still NOT sufficient cause for a search of locked containers in your car.
They'll lose that one in court. Badly. And you'll sue the officer, his department, and his municipality for it, and you'll win.
Now, if you have a concealed weapon on your person, and you DO have alcohol in your system, there isn't anything anyone can do to help you. After all, you are in violation of the law, AND the law can (and will) perform a search of your person and your immediate area if they wish.
If you have alcohol in your system, and have a firearm in a locked container, and were smart enough to separate it from its ammunition prior to locking it up, not only are you not in violation of any law, but it would be a violation of your rights if you did not consent to a search and they opened the locked container anyway.
As a comment: never consent to a search. Period. It'll never help you. It isn't like they are going to find anything to get you OUT of trouble.
Don't argue about searches---if they ask, you say no. If they say, "we are doing it anyway," you say "I do not consent to any search. I will comply with your directives, but you do NOT have my permission to search."
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As a comment: never consent to a search. Period. It'll never help you. It isn't like they are going to find anything to get you OUT of trouble.
In fact if you consent to a search you gave up your right against illegal search. In court, they will state that you waived your right. Definitely obey their directions, but do not consent to a search!
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Do you give up your open carry rights when you get your CC. I'm saying I can go for a beer or two and drive home with my pistol sitting on the seat next to me no problems , so if you do have a CC then can you chose to open carry ? And avoid the rules of CC?
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On not consenting to a search I agree it probably is a bad idea, but I did once and I think it probably kept me out of trouble.
This was mid 1980s. My friend wanted to leave his car at a dealership for some work and we were driving to an out of town job; it was around 4 AM. I had a .22 rifle in the front seat and a Mini 14 with a loaded 20 round magazine behind the seat in my pickup. A police officer came along and wanted to know what I was doing in a place like that at a time like that. I gave him my reason.
He asked me about the rifle and if I had any other "weapons" in the vehicle. I said no. And of course he asked if he could "look around a little," which of course means will I surrender my 4th Amendment rights. I said OK, believing at the time that "look around a little" meant literally what it said.
He called in 2 other officers and did a full scale search. Found the Mini 14. Asked me if it was full auto (which it wasn't). I had some construction tools that he decided could be classified as weapons.
My friend and I talked to the officers and were respectful and cordial with them. They could tell that we were a couple of working guys. And they let us go on our way.
I never knew if maybe he would have been able to find probable cause to search the vehicle if I had not given him permission. But since I was cooperative he and the other officers decided to let me go.
I wouldn't expect that to happen today. And now I know better than to have one gun in the open and another one hidden, except of course for the one I carry concealed legally. But being cooperative did seem to go a long way toward getting me out of trouble.
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did seem to go a long way toward getting me out of trouble.
You were never IN trouble in the first place! You weren't doing anything against the law. I would never give permission to search.
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I never knew if maybe he would have been able to find probable cause to search the vehicle if I had not given him permission. But since I was cooperative he and the other officers decided to let me go.
Just a layman's opinion, but it seems to me if they did THAT thorough of a search and found nothing, then there would have been nothing that would have given them probable cause in the first place. I would assume, that if they had probable cause (smelled alcohol/pot on you, saw something in the car, etc.), they would have just pulled you out and searched. That is why he had to ask.
Fly
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4 reasons to search 1) RAS (reasonable articulable suspicion (they must be able to articulate to the court why they felt search was warranted). 2) Probable cause 3) Incident to arrest (you've been handcuffed and Mirandized sitting in the back of the cruiser) 4) Exigent circumstances i.e. the Boston Terrorists are hiding under your back seat (okay being a little sarcastic hear but that is an example). As has been stated before, you do yourself NO favors by consenting. If you are going to be arrested it is going to happen no matter the "favor" you think you are doing for the LEO. They are fishing otherwise.....
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What I'm asking is can you just open carry if you have had a beer or two? Having a conceal carry or only if you don't, so are you giving up your open carry rights if you get a CC permit?
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so are you giving up your open carry rights if you get a CC permit?
Kinda appears like it.........Unfortunately.
sfg
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Do you give up your open carry rights when you get your CC. I'm saying I can go for a beer or two and drive home with my pistol sitting on the seat next to me no problems , so if you do have a CC then can you chose to open carry ? And avoid the rules of CC?
Not sure if anyone saw this or just chose not to respond, but I was wondering this myself so I thought I'd reply and rephrase
1) Per the scenario above, I'm a CCW holder but meet a friend while carrying. Obviously concealed carry is illegal if you have detectable alcohol in your system. Without reference to whether it's a good idea, is it legal to carry the weapon in the open after I've had a beer or two but still legal to drive? What about in Omaha?
2) What if I secure the weapon in an inaccessible area, i.e a locked container in the trunk or something like that?
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Bucket:
(2) First......If the handgun is secured in an inaccessible area, then it is no longer being carried concealed.
(1) is knottier. Most CHP folks know this part of NAC Title 272, Ch. 21:
"002.03 Concealed handgun shall mean totally hidden from view with no portion of the handgun visible." (The Concealed-Means-Concealed definition and all that.)
If any ruling or determination of this aspect of the NE CHP law has been made, it hasn't popped up in the usual places, like this forum. Strict interpretation would seem to indicate that any kind of open carry is prohibited to CHP holders.
So--anybody who wants to be a test case, OK by me. Got the summer off now and would be pleased to come watch the court proceedings. But I ain't gonna volunteer to be the First Offender.
FWIW--I just renewed and do carry the Omaha Handgun Identification Card, which is the Omaha permit for Open Carry (I also teach those classes.) But that's just against the possibility that my concealed handgun would someday flash and just maybe the Omaha LEO could be convinced by the HIC card that's it's OK.
sfg
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Bucket:
(2) First......If the handgun is secured in an inaccessible area, then it is no longer being carried concealed.
(1) is knottier. Most CHP folks know this part of NAC Title 272, Ch. 21:
"002.03 Concealed handgun shall mean totally hidden from view with no portion of the handgun visible." (The Concealed-Means-Concealed definition and all that.)
If any ruling or determination of this aspect of the NE CHP law has been made, it hasn't popped up in the usual places, like this forum. Strict interpretation would seem to indicate that any kind of open carry is prohibited to CHP holders.
So--anybody who wants to be a test case, OK by me. Got the summer off now and would be pleased to come watch the court proceedings. But I ain't gonna volunteer to be the First Offender.
FWIW--I just renewed and do carry the Omaha Handgun Identification Card, which is the Omaha permit for Open Carry (I also teach those classes.) But that's just against the possibility that my concealed handgun would someday flash and just maybe the Omaha LEO could be convinced by the HIC card that's it's OK.
sfg
Thanks for weighing in. I certainly have no intention of being the test case, or even testing it down the road. Since open carry is legal outside of Omaha, I'm just wondering if unconcealing the weapon eliminates some of the requirements inherent in the CHP.
Are you suggesting that having a CHP means no longer having the right to open carry? I thought the CHP was a statutory exemption to the law against carrying a concealed weapon.
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CHP has no bearing on your legal rights to OC. That being said, it has been determined (and you or someone else can look it up) that you are NO LONGER afforded the right of "affirmative defense" in carrying concealed in say a bank.
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CHP has no bearing on your legal rights to OC. That being said, it has been determined (and you or someone else can look it up) that you are NO LONGER afforded the right of "affirmative defense" in carrying concealed in say a bank.
So back to the original question: I grab a few beers with a buddy. Not drunk but obviously can't carry concealed. Am I ok to take the weapon out and put it on the seat beside me (outside Omaha that is)? I'm making the assumption that open carry doesn't have the same "zero tolerance" alcohol rules that CCW does.
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Are you suggesting that having a CHP means no longer having the right to open carry?
I'm saying out loud and clearly that I simply don't know. And that no one else does, either. Because.....this issue is not clearly covered in the laws and won't be until it is decided in a court case, thereby becoming case law.
Until such time, it dangles out there. Best to take a conservative approach in the meantime.
sfg
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I'm saying out loud and clearly that I simply don't know. And that no one else does, either. Because.....this issue is not clearly covered in the laws and won't be until it is decided in a court case, thereby becoming case law.
Until such time, it dangles out there. Best to take a conservative approach in the meantime.
sfg
So you're saying you don't know? 8)
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Clearly, I am saying that I do not know.
CHP rules say that no part of the handgun may show.
Open Carry has no statewide written rules, but lots of parts of the handgun do show during open carry. Which violates the written CHP rule for CHP holders.
Almost quaiifies as being a dilemma. With horns.
As a CHP holder, I intend to continue to carry with no part of the handgun showing. And continue not to imbibe any alcohol before or while carrying. A conservative approach. But then, I've always been a conservative kinda guy.
sfg
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Which violates the written CHP rule for CHP holders.
What rule? There are legal definitions of concealed and not concealed, but no rule I know of that requires a CHP holder must remain at all times concealed
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Title 272, Nebraska Administrative Code
Chapter 21
Section 002.03 Definitions
“Concealed handgun” shall mean totally hidden from view with no portion of the handgun visible.
sfg
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There was a time when open carry wasn't a political issue because everyone understood what the Founding Fathers meant when they wrote it. And, as I've written before, no one showed the slightest concern when I, a teenager, rode a bus or my bike carrying a large caliber rifle(s).
That was before 1968, when Charles White shot up the University of Texas campus shooting a high powered rifle from a tower. (I was in grad school in Abilene, TX, at the time.) Since then the meaning of the 2nd Amendment has been and continually is under political revisionism. That which "shall not be infringed" has been, and now we are discussing if one law which infringes the 2nd Amendment can abrogate the plain meaning of the 2A. To my old eyes and mind it is both amazing and disgusting.
But, considering the political realities, and how many bitterly cling to their nanny state for safety and permission to do what they used to have an "unalienable right" to do, IMO it would be wiser to never carry open. First, it would alarm the fearful thumb suckers. Second, it would make the person a target of political agenda groups. Third, it would mark someone as a potential target for future assault specifically to steal the weapon. Carrying open doesn't give someone eyes in the back of their head, and if unseen a pipe or piece of 2X4 to the back of the head means they are out of action and no longer in possession of their weapon. CCW gives the necessary secrecy and surprise. OC totally destroys that. Which, BTW, is why I am for the law which prohibits posting the names of CHP holders in the news papers or websites, and why others, on the Left, against it.
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Title 272, Nebraska Administrative Code
Chapter 21
Section 002.03 Definitions
“Concealed handgun” shall mean totally hidden from view with no portion of the handgun visible.
sfg
The language above isn't a restriction. It is a definition of what "concealed" means.
Dan W is correct.
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Thanks for weighing in. I certainly have no intention of being the test case, or even testing it down the road. Since open carry is legal outside of Omaha, I'm just wondering if unconcealing the weapon eliminates some of the requirements inherent in the CHP.
Are you suggesting that having a CHP means no longer having the right to open carry? I thought the CHP was a statutory exemption to the law against carrying a concealed weapon.
Yes, this.
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The language above isn't a restriction. It is a definition of what "concealed" means.
Dan W is correct.
Parse it as you will. My energy on this item has been fully expended.
sfg
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There is no "rule" that a Nebraska CHP holder may never carry openly no matter how you parse it.
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Was this after he checked your license? I didn't think CHP status was linked to vehicle registration, just to DL number.
Before I handed him my DL, he asked where my gun was.
I had been pulled over before while carrying, and I am thinking someone may have made a note of it.
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There is no "rule" that a Nebraska CHP holder may never carry openly no matter how you parse it.
I have emailed the SP twice with this question of OC with a CCW permit. Twice I got no reply. I have called once, was supposed to call me back with an answer after checking it out, never got a return call.
I am going to guess that they are waiting for a chance to try out some prosecutors ability to make something legal illegal.