open carry almost gone bad in lincoln

[AAllen]

D.A.D these discussions are educational for all of us, don't feel out of place by having questions.  These questions are how we find the flaws real or perceived and work to either fix them or get clarification, either in the bill or in floor debate.

I understand and see your concern, this is a clarification that we will need to get taken care of next year when we address the parking lot issue.  A note on what is being worked upon there, it includes everyone not just concealed carry permit holders.  This will make this more difficult to get done so we will need a lot of people to show up for the hearing and making trips into the Capital to talk to their Senators to get the pressure there to get this done.

[lneuke]

Andy, I appreciate your comments and you putting up with my line of discussion, but I hope it proves to be instructive to others. 

Neb. Rev. Stat. 69-2441(2) - What if you are carrying concealed and you start to pull into a parking lot only to find that the conspicuous signage recommended by the State Patrol is posted at the entrance to the parking lot?  Would that not signify that that entrance to the premises was the line beyond which a person with a concealed carry permit would not be allowed to bring a firearm?  If it was a gated property and the sign was posted on the gate, does not that indicate the point at which firearms are not allowed?

Parking lots are a different story, you're fine as long as it's locked in a trunk/glovebox or the like.  That's all there is to it unless you're trying to carry onto a "secured" parking lot (like the National Guard lot) or other outlawed places.  You can still bring your firearm into any parking lot, whether your employer owns it or not, as long as you lock it up.  They can post as much signage as they want, it doesn't give them the power to overturn that law.  Although if you screwed up somehow and they found out, you could still be legally fired for violating their company policy, but that's as far as they could take it.  They couldn't press any legal charges, as they would have no basis to pursue them.  Furthermore, I don't think they could even legally search your car unless they had reason to or you gave them permission...and I'm sure locking a glovebox doesn't constitute reasonable suspicion. 

I'm sure a state correctional facility is one of those places where you aren't going to be allowed to carry a firearm.

[cckyle]

I agree you could not get your CHP taken away for this or charged with anything.  Under section 3 if it is locked properly and the public is allowed to enter the parking lot there is nothing illegal about this as a CHP holder.  It does not matter where the sign is, the parking lot is the parking lot.  Even if it's a parking lot at a correctional facility it doesn't matter as long as the public is allowed to enter the parking lot.  The law says nothing about the signs placement creating boundaries or a line or anything of that sort.  That's the way the law reads, and the CHP class explains this (or at least they did at the class I took). 
As far as employment repercussions, put some tint on your windows and/or lock your handgun up a before you get to the parking lot.  As CHP holders or future CHP holders, let's just hope lb785 will pass.  Then we won't have to worry about any repercussions from being legal armed in these cases from employers. 

[Chris Z]

I agree you could not get your CHP taken away for this or charged with anything.  Under section 3 if it is locked properly and the public is allowed to enter the parking lot there is nothing illegal about this as a CHP holder.  It does not matter where the sign is, the parking lot is the parking lot.  Even if it's a parking lot at a correctional facility it doesn't matter as long as the public is allowed to enter the parking lot.  The law says nothing about the signs placement creating boundaries or a line or anything of that sort.  That's the way the law reads, and the CHP class explains this (or at least they did at the class I took). 
As far as employment repercussions, put some tint on your windows and/or lock your handgun up a before you get to the parking lot.  As CHP holders or future CHP holders, let's just hope lb785 will pass.  Then we won't have to worry about any repercussions from being legal armed in these cases from employers. 

If I understand correctly, Department of Corrections Employees have to sign a waiver allowing searches of their vehicles as a condition of employment........ And someone correct me if I'm wrong, but I believe there was a case in the last year where a Dept of Corrections employee challenged that requirement and lost.

[sidearm1]

All State Correctional Facilities are posted very plainly, that firearms or ammunition are not allowed on Correctional Facilities property.  All vehicles, (as posted) are subject to search, not only employee vehicles, but any visitor or public official.  They may be searched by Department K9 units or State Patrol K9 units, also.  While the public may use the parking lot, they can only use them for visiting, any other use would be classified as loitering, and that is prohibited by state law.

[cckyle]

(3) A permitholder carrying a concealed handgun in a vehicle or on his or her person while riding in or on a vehicle into or onto any parking area, which is open to the public, used by any location listed in subdivision (1)(a) of this section (Police, sheriff, or Nebraska State Patrol station or office; detention facility, prison, or jail;on and on) , does not violate this section if, prior to exiting the vehicle, the handgun is locked inside the glove box, trunk, or other compartment of the vehicle, a storage box securely attached to the vehicle, or, if the vehicle is a motorcycle, a hardened compartment securely attached to the motorcycle.

I don't get it? So are you guys saying that section three is not part of the law or only is applicable to certain places in 1a?  I don't remember what the signs says at correctional facilities but I'm going by what the law says and to me the law says that if I am entering a public parking lot at a place where concealed carry is prohibited(places listed in 1a), as a CHP holder I can lock up my handgun in my vehicle before exiting the vehicle and be completely within my legal rights. 

If the public can use the parking lot for visits, then to me it's a parking lot that is open to the public.  Lets say you were parked in the parking lot at a correctional facility.  You are a CHP holder and have locked up your handgun per 69-2441.  They decide to search your vehicle you would say, I am a CHP holder, and I have a firearm in my vehicle locked up accordingly to 69-2441 section 3.  Then they would say, ok, thanks for letting us know.

I understand the employer/employee aspect may be different in terms of employment, but not legal charges against you. 

Am I missing something?  I just don't understand why they put section 3 in there if it doesn't have an legal standing for CHP holders. 

[D.A.D.]

CCKyle,
In a sense, that is what I have been asking.  And, using the example of the State Correctional facility, the property of my employer and Article (2), it seems that the controller of the property decides where the line is drawn beyond which a firearm can be carried.  Article (3) offers reasonable relief on the property by drawing the line at the door, but Article (2)seems to provide discretion to be exercised by the controller of the property to draw the line at the property line.  Premises include the buildings and the grounds, so the line can be legally drawn anywhere on the property.

I'm not saying I'm right, I'm not saying I agree, I'm not saying that is way it should be.  What I'm saying is, that is the way it is being interpreted by some governmental (mostly) and private agencies. 

But then, I would probably have the right to say that about my own property as well.  And I think I should because it is my castle.  What I say goes as long as it is legal.  If I put up a "No Trespassing" or "No Hunting" sign, I expect people to obey it, or else.  You would probably want the same authority over your property.

As an employee of the company I work for, I am not being afforded the right under Article (3) because they are (probably without knowing it) trying to trump it with Article (2).  But I want to work on that.

[Dan W]

But then, I would probably have the right to say that about my own property as well.  And I think I should because it is my castle.  What I say goes as long as it is legal.  If I put up a "No Trespassing" or "No Hunting" sign, I expect people to obey it, or else.  You would probably want the same authority over your property.

Is your property open to the public? Does it have a public parking area? Those are limiters in the statute

[Dan W]

Article (3) offers reasonable relief on the property by drawing the line at the door, but Article (2)seems to provide discretion to be exercised by the controller of the property to draw the line at the property line.

I am not sure how many different ways I can state that article 3 is there to limit the scope of article 2 .

Most of the statements you are making are just supposition and have no real basis in fact, at least as far as the language of the statute reads your are just assuming that your employer has legal powers that are not supported by the evidence. 

Of course, you are free to do as you wish, and free to limit yourself in ways the law in this instance does not.

The only other way to end this dispute is a test case in the courts

[AAllen]

Dan, section 3 specifically refers to subsection 1a for where the exemption for carrying and storing in a vehicle, while posting places is mentioned in section 1a it is further discussed and elaborated upon in section 2 .

So there is a valid question if the posting talked about in section 1a is the same or something separate form that discussed in section 2.  I agree with you that the posting in section 1a is the same as in section 2 with section 2 just giving further detail as to the posting needing to be conspicuous etc.  But since section 3 does not mention section 2, there is a valid question of weather a posted lot is exempted or not.

Yes a test case would be one way to clarify but I think it would be a lot less expensive to simply clarify it in the way the law is written.  With the parking lot bill coming back next year we should work to get that addressed there.

I see both sides of the discussion, and think that the interpretation being given by the majority here is correct or at least what was meant by those that wrote the statute.  But I can also understand someone wanting to be cautious in how they would handle this situation, because I would not want to be the test case just like D.A.D does not wish to be.

[Dan W]

Andy, it also specifically states a permit holder  " does not violate this section"... Not a violation of what, you ask? The entire "Section 69-2441" which includes subsections 1(a), 1(b), 1(c) 2, 3, 4 and 5. 

So, In my opinion as a non lawyer, subsection 3 is referring to subsection 2 specifically, and was intentionally added to limit subsection 2.

There would be no other reason for the language in subsection 3 to  exist

Not ambiguous at all to me

[D.A.D.]

Gentleman,
I have a busy week ahead and will probably not make any more comments this week, but I have had a discussion with a top level management person who holds the understanding provided him by the attorney from whom he receives guidance in the posting of buildings, and it is their practice and policy that the typical sign designating a premise to be a non-carry premise also includes the parking lots to the property line.  They use the exception provided by the word "unless" in the articles to nullify the ability a CHP holder is given in (1)(a) to possess, transport or securely store a firearm in a vehicle on the property.

The manager was a bit taken back when I told him that I knew his property had vehicles with firearms in them on a daily basis (and that I had done so on many occasions) because the absence of signs served as an indication that the parking lot was not a prohibited area. 

I also noticed that the signs usually reference only the entire statute, but that may only be for convenience.

This manager intends to contact me the first of next week after discussing this issue with his attorney in further detail.  It is my belief that this attorney would be willing to discuss the meaning of the entire statute (and indeed should make himself available to do so given the influence he has in Lincoln), but I think it would be best if DanW and AAllen (and or others of their choosing) be directly involved in the discussion.  I think this should be discussed outside of this forum given the importance and level of impact this conversation might have.

I do know that there is a lot of confusion among people on both sides of this issue and it is my highest concern that someone who thinks he is in compliance with the statute is charged with being in violation and he has a permanent mark on his record because people don't understand what the law says.

I will attempt to contact either or both DanW and AAllen offline when I have more information.  I can definitely see this having to go through a court setting in order to get it resolved.  But, no, I am not volunteering to be the subject of the case.

I will be in touch as soon as I can.  In the mean time, after learning what I learned today, be careful out there.  I know that there are many parking lots accessible to the public that are thought by the managers of the lots to be clearly posted as not open to concealed carry storage in vehicles due to the signs on the building doors.

D.A.D.

[OnTheFly]

Would this be something that could be referred to the state attorney for an interpretation?

Fly

[Husker_Fan]

This isn't a question the AG would likely answer in an opinion, unless the question is submitted by a local prosecutor. That's just my gut impression.

Personally, I agree with Dan's reading of the statute. An example is Westwood plaza in Omaha, most, but not all, parking lot entrances are posted. I don't believe that impacts a permit holder who follows the storage requirements.

One thing to worry about, though, is that a city prosecutor could, at the urging of the property owner, pursue criminal trespass, but I would need to look into that. For an employee it is also a concern.

[bullit]

Westwood is NOT in compliance with the CHP as the notice MUST be conspicuously (sp?) posted....

[D.A.D.]

TITLE 272, NEBRASKA ADMINISTRATIVE CODE, CHAPTER 21
NEBRASKA STATE PATROL
Concealed Handgun Permits

Section 018.01 thru 018.09 seem to duplicate Neb. Rev. Stat. 69-2441 articles 1-6 in simpler language. 
"018.04 A person, entity, or employer in control of a place or premises described in Section 018.01O above, which is open to the public, may prohibit permit holders from carrying concealed handguns in the place or premises by posting a conspicuous notice that carrying a concealed handgun is prohibited in or on the place or premises or by making a request, directly or through an authorized representative or management personnel, that the permit holder remove the concealed handgun from the place or premises."  This portion seems to be the equivalent of  69-2441(2).

"018.06 Except as prohibited by federal law, a permit holder may carry a concealed handgun in a vehicle or on his or her person while riding in or on a vehicle into or onto any parking area which is open to the public and used by any of the places or premises listed in Section 018.01 above if the handgun is not removed from the vehicle and the handgun is properly secured in the vehicle before the permit holder exits the vehicle. To be properly secured in the vehicle, the handgun must be locked inside the glove box, trunk or other compartment of the vehicle, in a storage box attached to the vehicle, or in a securely attached hardened compartment if the vehicle is a motorcycle."  This section seems to be the equivalent of 69-2441(3) and distinctly leaves out the terminology that follows the word "unless" which creates all of the confusion in my mind.  018.06 gives credence to DanW's argument that Article (3) trumps Article (2) in parking lots open to the public that otherwise prohibit carrying concealed on that property.  Neither vehicles or parking lots are mentioned in (2), but the are specified in (3).  And the same holds true for 018.04 and 018.06 respectively.

This seems to be a key point so it sounds like a call to the State Patrol is in order to see if Neb. Rev.Stat. 69-2441 or the Nebraska Administrative Code has the final say.  All of the prohibition signs that I have seen reference 69-2441 and not the NAC 018.

D.A.D.

[Dan W]

D.A.D.

You may or may not be aware that the statutes give the power to write the rules and regulations for the Concealed Handgun Act to the Nebraska State Patrol.

The Administrative code is in fact the set of rules and regulations that the NSP has written, so they are the practical application of the statutes.

The NSP is charged with adhering to the statutes as closely as possible while at the same time establishing a workable set of rules and regs that can be applied by the permit holder and enforced by the Patrol.

In such an effort, understandably the language is not always identical after "translation", so my take on the ambiguities is that the Administrative Code is the law as practically applied by the state of Nebraska and, in my opinion, the final word on how a permit holder should act to remain within the law.

[D.A.D.]

Does anyone know what legislation or changes to the current law are being considered for proposal during the next legislative session?  Do you know what Legislator is going to be proposing the changes?  I would like to send him some input.  I will also send the same information to my legislator.

Does the NFOA have an attorney (list of them) that they recommend that I could discuss possible legal action with regarding the parking issues in the law?  DanW and AAllen, I will be sending you a private email regarding what I have come up with in my discussions with the AG's office, State Patrol's office, LPD and some others.  The problems lies in that each can hold their legal opinion, but until it is interpreted in court, there can be no clarification of the law.  A legislative bill could do this, but it would have to be very tightly written.  And this would be no guarantee unless it changed the legal opinion of the City of Lincoln.

D.A.D.

[AAllen]

It is still a bit early to really have an idea of whats where and who for next year.  There are a lot of balls in motion and until the elections are over most of the Senators are being very noncommittal on bills, unless it addresses a major problem (and without something happening in the courts to require clarification they would not consider this a major issue, even though we do).  I look forward to finding out what you have come across and discussing it with you so we can see if we can find a way to work on the issue.

[cckyle]

D.A.D.  lb785 is one I would consider pertinent to your case.  Here is a link to the neb legislature with info about it. 

http://nebraskalegislature.gov/bills/view_bill.php?DocumentID=15219