When is handgun considered concealed?

[davep]

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?

[OnTheFly]

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,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

[Dan W]

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.

[davep]

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?

[Dan W]

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.

[Dan W]

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

[davep]

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?

[davep]

Quote (selected)
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
     Logged

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.

[OnTheFly]

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

[davep]

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.

[bullit]

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?

[davep]

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

[bullit]

I what would help my slow catching up DavP is your OP ... what exactly are you referring to ?  The McCullough shooting? 

[davep]

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

[bullit]

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" .

[davep]

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.

[Dan W]

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

[davep]

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

[DR4NRA]

Hmmm. I am thinking the NSP/Sheriff has to cite under local regulations for the jurisdiction where the offense occurred? 

[davep]

Hmmm. I am thinking the NSP/Sheriff has to cite under local regulations for the jurisdiction where the offense occurred? 
[/quote]

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.