Author Topic: Car carry question (Read 4050 times)

XDHusker · « **on:** December 27, 2012, 09:38:35 PM »

Hey guys, I'm kind of new around here but I plan to be a lot more active. Especially with all the crazy laws going down.

Little back story: OK, I am in the process of appealing my CCW permit. I had an attempted assault misdemeanor conviction in 2008 that the NSP denied me on. They called it a "crime of violence" even though there's no case law to support an attempt as being a crime of violence. I appealed and am still waiting on the appellate judge to rule.

OK, so in the meantime I want to do as much as I legally can to protect myself. I own my own business that's located in a business park. I have my own entrance from the parking lot that's about a 20 feet walk from my office door to where I park. I know I can legally carry concealed at home without a permit, and my understanding is I can legally carry concealed at my office without a permit.

My question is what to do in the car.
I know I cannot carry concealed in the car without a permit, so my plan is to unload my XDs by removing the loaded magazine and placing the gun and magazine together in a locked nanovault that's under my seat.
I work in the wonderful gun rights utopia of Omaha, and live outside city limits, so I believe the city ordinances will be the more restrictive laws that I have to adhere to.

The other gray area I'm not sure about is the short walk from my office to the car. Is that still considered "my property" from a CCW standpoint or am I out in public for those few steps.

I'm really curious to everyone's thoughts on my plight? As you can probably tell I am genuinely trying to stay within the law, but I also want to push it as far as I legally can.

SemperFiGuy · « **Reply #1 on:** December 27, 2012, 10:17:25 PM »

XDHusker

There's more than one way to skin a cat and more than one way to carry concealed.

Here's a copy of:

--------------------------------------------------
28-1202. Carrying concealed weapon; penalty; affirmative defense.

(1)(a) Except as otherwise provided in this section, 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.

(b) It is an affirmative defense that the defendant was engaged in any lawful business, calling, or employment at the time he or she was carrying any weapon or weapons and the circumstances in which such person was placed at the time were such as to justify a prudent person in carrying the weapon or weapons for the defense of his or her person, property, or family.

(2) This section does not apply to a person who is the holder of a valid permit issued under the Concealed Handgun Permit Act if the concealed weapon the defendant is carrying is a handgun.

(3) Carrying a concealed weapon is a Class I misdemeanor.

(4) In the case of a second or subsequent conviction under this section, carrying a concealed weapon is a Class IV felony.
--------------------------------------------------------------

Which says you may carry concealed without an NE CHP, provided that the "...circumstances......were such to justify a prudent person.....etc., etc."

Now.....some informed discussion and some not-so-informed lively discussion will probably ensure on this forum on this issue from this point. It might be a good idea to hear all of this discussion and then...........

talk to a very firearms-law-knowledgable attorney about the pros, cons, and risks of carrying under the provisions of 28-1202.1(b).

This non-CHP provision is in the law. No one is really sure what it means.

Might work for you. Might not.

Also, you could get an Omaha Open Carry permit [actually, Handgun Identification Card] and carry the fully loaded handgun openly with the gun on your front seat or in an open holster.

sfgPS: You MUST register the handgun with Omaha Police Department if you bring it into the city, since you do not have an NE CHP.

skydve76 · « **Reply #2 on:** December 27, 2012, 10:36:23 PM »

In my opinion, just keep your nose clean pending the appeal. If denied, then just open carry in these situations.
I would expect you will get your permit if you go through the hoops. I would focus your energy there. I was told several times I could not have a permit and then I just went for it and got it no problem. These guys down there play lawyer and in reality have no clue.

What the heck it attempted assault anyways? Care to explain a bit more what happened

FarmerRick · « **Reply #3 on:** December 28, 2012, 07:17:28 AM »

In my opinion, if you are getting denied for a state CHP, you are very unlikely to qualify for a Omaha Open Carry Permit.

Also, I would store the loaded mag in a different spot than in the same container that you store the handgun. Put the mag in the glove box or something. Or just leave the mag in the gun and put it out in the open on the seat next to you, perfectly legal(assuming you register it with OPD...).

From here: http://library.municode.com/index.aspx?clientId=10945

Sec. 20-207. - Firearm training program.

(a)
A training program to qualify persons in the safe use of firearms shall, after review and approval by resolution by the city council, be established and operated by the city, which may contract with private organizations or use the services of other agencies, or may use a combination of the two, to provide such training. Said resolution shall be submitted to the city council on or before December 21, 1993.

(b)
A fee shall be charged each person attending the training program. The city shall set out a reasonable fee, to be set by the city council, after review and approval by said resolution, which shall include the cost of training, to be paid to the licensed training facility, and to the city.

(c)
An identification card on a form approved by the city shall be issued to each person who successfully completes the training program.

(d)
The training program shall consist of eight to ten hours of classroom training and education and two hours of practical firearm operation at an approved shooting range.

(e)
The city shall prescribe such procedures as may be necessary for its operation in conformity with the provisions of this article.

(f)
The city shall have complete control over the training program and shall decide upon the qualifications of all applicants.

(g)
An applicant for the training program shall fill out a form stating his or her full name, social security number (optional), residence, age, whether applicant has ever been convicted of a felony, whether the person is addicted to the use of alcohol or any controlled substance, whether the person has any history of mental illness, and whether the person has ever been convicted of a misdemeanor involving acts of violence.

(h)
The identification card shall be valid for three years from the date of issuance.

(i)
The identification card may be renewed every three years provided that:

(1)
The applicant pays a reasonable recertification fee, as set by the city council.

(2)
The applicant has not violated, or is currently charged with violating, any applicable provision of this Code, state law or city ordinance, rule or regulation during the past three years.

(j)
The identification card may be revoked by the city for the violation of any applicable provision of this Code, state law or city ordinance, rule or regulation, or if the identification card was issued to an unqualified applicant.

(k)
Waivers may granted to those who can provide evidence of satisfactory completion of either a United States armed forces or a nationally recognized handgun firearms training program.

(Ord. No. 33113, § 8, 11-23-93; Ord. No. 34229, § 2, 6-17-97)

Neeco · « **Reply #4 on:** December 28, 2012, 08:58:45 AM »

Quote from: FarmerRick on December 28, 2012, 07:17:28 AM

Also, I would store the loaded mag in a different spot than in the same container that you store the handgun. Put the mag in the glove box or something. Or just leave the mag in the gun and put it out in the open on the seat next to you, perfectly legal(assuming you register it with OPD...).

It is legal to open carry a weapon in your vehicle? I mean to have a loaded handgun on the seat next to you, if its in plain site? Is this true for Lincoln/Lancaster county?

XDHusker · « **Reply #5 on:** December 28, 2012, 09:18:07 AM »

Quote from: SemperFiGuy on December 27, 2012, 10:17:25 PM

XDHusker

There's more than one way to skin a cat and more than one way to carry concealed.

Here's a copy of:

--------------------------------------------------
28-1202. Carrying concealed weapon; penalty; affirmative defense.

(1)(a) Except as otherwise provided in this section, 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.

(b) It is an affirmative defense that the defendant was engaged in any lawful business, calling, or employment at the time he or she was carrying any weapon or weapons and the circumstances in which such person was placed at the time were such as to justify a prudent person in carrying the weapon or weapons for the defense of his or her person, property, or family.

(2) This section does not apply to a person who is the holder of a valid permit issued under the Concealed Handgun Permit Act if the concealed weapon the defendant is carrying is a handgun.

(3) Carrying a concealed weapon is a Class I misdemeanor.

(4) In the case of a second or subsequent conviction under this section, carrying a concealed weapon is a Class IV felony.
--------------------------------------------------------------

Which says you may carry concealed without an NE CHP, provided that the "...circumstances......were such to justify a prudent person.....etc., etc."

Now.....some informed discussion and some not-so-informed lively discussion will probably ensure on this forum on this issue from this point. It might be a good idea to hear all of this discussion and then...........

talk to a very firearms-law-knowledgable attorney about the pros, cons, and risks of carrying under the provisions of 28-1202.1(b).

This non-CHP provision is in the law. No one is really sure what it means.

Might work for you. Might not.

Also, you could get an Omaha Open Carry permit [actually, Handgun Identification Card] and carry the fully loaded handgun openly with the gun on your front seat or in an open holster.

sfgPS: You MUST register the handgun with Omaha Police Department if you bring it into the city, since you do not have an NE CHP.

I saw the affirmative defense language, but I am not comfortable enough with it to carry everywhere relying on it to keep me out of jail.

Thanks for the reminder about registering with Omaha. I was aware of it, but forgot to mention that in my first post.

CitizenClark · « **Reply #6 on:** December 28, 2012, 09:22:38 AM »

Quote from: Neeco on December 28, 2012, 08:58:45 AM

It is legal to open carry a weapon in your vehicle? I mean to have a loaded handgun on the seat next to you, if its in plain site? Is this true for Lincoln/Lancaster county?

Yes, open carry in your vehicle is legal in Lancaster County. Your firearm should be in plain view.

XDHusker · « **Reply #7 on:** December 28, 2012, 09:26:59 AM »

Quote from: skydve76 on December 27, 2012, 10:36:23 PM

What the heck it attempted assault anyways? Care to explain a bit more what happened

lol, not really. Long story, but was originally charged with 3rd degree Assault and plead it down to attempted. I agree it looks weird.

Neeco · « **Reply #8 on:** December 28, 2012, 09:37:31 AM »

Quote from: CitizenClark on December 28, 2012, 09:22:38 AM

Yes, open carry in your vehicle is legal in Lancaster County. Your firearm should be in plain view.

Of a loaded weapon? Just making sure I understand this completely.

SO I can transport my XDm to the range fully loaded, as long as it is in plain site in my vehicle? But I can't have it open carried on my hip. Correct?

XDHusker · « **Reply #9 on:** December 28, 2012, 09:38:11 AM »

Quote from: FarmerRick on December 28, 2012, 07:17:28 AM

In my opinion, if you are getting denied for a state CHP, you are very unlikely to qualify for a Omaha Open Carry Permit.

Also, I would store the loaded mag in a different spot than in the same container that you store the handgun. Put the mag in the glove box or something. Or just leave the mag in the gun and put it out in the open on the seat next to you, perfectly legal(assuming you register it with OPD...).

From here: http://library.municode.com/index.aspx?clientId=10945

Sec. 20-207. - Firearm training program.

(a)
A training program to qualify persons in the safe use of firearms shall, after review and approval by resolution by the city council, be established and operated by the city, which may contract with private organizations or use the services of other agencies, or may use a combination of the two, to provide such training. Said resolution shall be submitted to the city council on or before December 21, 1993.

(b)
A fee shall be charged each person attending the training program. The city shall set out a reasonable fee, to be set by the city council, after review and approval by said resolution, which shall include the cost of training, to be paid to the licensed training facility, and to the city.

(c)
An identification card on a form approved by the city shall be issued to each person who successfully completes the training program.

(d)
The training program shall consist of eight to ten hours of classroom training and education and two hours of practical firearm operation at an approved shooting range.

(e)
The city shall prescribe such procedures as may be necessary for its operation in conformity with the provisions of this article.

(f)
The city shall have complete control over the training program and shall decide upon the qualifications of all applicants.

(g)
An applicant for the training program shall fill out a form stating his or her full name, social security number (optional), residence, age, whether applicant has ever been convicted of a felony, whether the person is addicted to the use of alcohol or any controlled substance, whether the person has any history of mental illness, and whether the person has ever been convicted of a misdemeanor involving acts of violence.

(h)
The identification card shall be valid for three years from the date of issuance.

(i)
The identification card may be renewed every three years provided that:

(1)
The applicant pays a reasonable recertification fee, as set by the city council.

(2)
The applicant has not violated, or is currently charged with violating, any applicable provision of this Code, state law or city ordinance, rule or regulation during the past three years.

(j)
The identification card may be revoked by the city for the violation of any applicable provision of this Code, state law or city ordinance, rule or regulation, or if the identification card was issued to an unqualified applicant.

(k)
Waivers may granted to those who can provide evidence of satisfactory completion of either a United States armed forces or a nationally recognized handgun firearms training program.

(Ord. No. 33113, § 8, 11-23-93; Ord. No. 34229, § 2, 6-17-97)

Yeah, i thought of that too. Even with the handgun registration the code says nobody with a conviction of assault can register a handgun in Omaha.

Has a conviction of an offense listed below which has not been pardoned or set aside under any state or federal law:
a. Any felony;
b. Carrying a concealed weapon or being a minor in possession of a concealable firearm;
c. Within the previous five years, assault, child abuse, or violation of any provision of chapter 20, article VII of the Omaha Municipal Code.

However, I've registered a couple of my handguns and the guy in charge at OPD said he didn't care about attempted anything. So, I may or may not be able to get the open carry permit, but if my CCW doesn't come though I'm going to try.

I have been trying to narrow down what to do with the loaded magazine. From my research NE seems to not have a definition of a loaded gun, but federally and several other states define loaded as having a round in the chamber or a loaded magazine inserted into the gun. Meaning if the loaded magazine is outside of the gun then the gun is not loaded no matter where the magazine is.
I've also thought about just sticking the magazine in my pocket when transporting because I don't think there are any laws against carrying a loaded magazine in NE.

On the leaving the loaded handgun on the seat, I thought I had to have the open carry permit to leave it out on the seat inside Omaha City limits. I thought the registration just allowed me to legally "transport" and/or possess the gun in city limits but not open carry it in the seat. Or is in the seat not considered "open carry".
I know outside of city limits I can just open carry and/or leave it on the seat.

OnTheFly · « **Reply #10 on:** December 28, 2012, 11:00:23 AM »

Quote from: Neeco on December 28, 2012, 09:37:31 AM

Of a loaded weapon? Just making sure I understand this completely.

SO I can transport my XDm to the range fully loaded, as long as it is in plain site in my vehicle? But I can't have it open carried on my hip. Correct?

Open carry of a loaded firearm IS legal in the state of Nebraska whether it is in your vehicle or on your hip, though there are many here who would advise against it. It must be FULLY visible and not concealed in any way. Walking from your car to the gun range entrance probably wouldn't create a panicked "Man with a gun" call to the LPD, but doing it in other locations may result in you getting to meet some of Lincoln's finest.

Fly

skydve76 · « **Reply #11 on:** December 28, 2012, 07:11:02 PM »

Oh I see. looks like you will have a 10 year wait or you will have get an attorney to press it through. I waited 3 years for mine though in the end I didnt have to do that.

Quote from: XDHusker on December 28, 2012, 09:26:59 AM

lol, not really. Long story, but was originally charged with 3rd degree Assault and plead it down to attempted. I agree it looks weird.

XDHusker · « **Reply #12 on:** December 28, 2012, 07:21:08 PM »

Quote from: skydve76 on December 28, 2012, 07:11:02 PM

Oh I see. looks like you will have a 10 year wait or you will have get an attorney to press it through. I waited 3 years for mine though in the end I didnt have to do that.

Yep, working on pressing it through now and have been doing that for the last year. Had my district court appeal hearing on Dec 3 and am awaiting the judges opinion. Oral arguments were positive so hopefully I'll get my permit soon.

If not, I might have to change my state residency and get an out of state permit. lol (I say that jokingly, but there's got to be a legal loophole somewhere I can exploit)

DaveB · « **Reply #13 on:** December 28, 2012, 08:05:31 PM »

Wasn't it Omaha a few years back that someone got caught just having a 22LR rolling around in the car and the cop saw it when he stopped them for something else? I think he was charged with something because of that.

I hate Omaha, lived there for a lot of years, will never go back!

XDHusker · « **Reply #14 on:** December 28, 2012, 08:37:23 PM »

Quote from: DaveB on December 28, 2012, 08:05:31 PM

Wasn't it Omaha a few years back that someone got caught just having a 22LR rolling around in the car and the cop saw it when he stopped them for something else? I think he was charged with something because of that.

I hate Omaha, lived there for a lot of years, will never go back!

That wouldn't surprise me at all, but I'm wondering if the cop saw the cartridge and then got consent to dig for more.

I've searched the Omaha municipal code upside down and backwards and can't find anything related to magazines, bullets, or ammunition restrictions. Other than the gun shows and display of ammunition in a store window. I'm pretty sure the state law is silent on the issue as well.

I agree about Omaha, but unfortunately my company is inside city limits as are the vast majority of my customers. So I'm pretty much stuck here. :-/

skydve76 · « **Reply #15 on:** December 28, 2012, 10:16:58 PM »

Well in 5 more years you can have one (2018). My 3 years went fast 5 years will go fast too. In the interim like I said, just keep your nose clean during the appeal. Anything happens they most certainly will use it against you.

After that I would work on getting that conviction set aside or expunged or whatever.

Mine was mental health related so it was even more ambiguous and no one really knows much about that. Its much more defined now and there now due process to get it removed, which I didnt need and was never disqualified anyways. This was back in 2007 when even NSP didnt want to hand these out for some reason.

CitizenClark · « **Reply #16 on:** December 31, 2012, 09:46:39 AM »

Dan W · « **Reply #17 on:** December 31, 2012, 12:00:32 PM »

Back when the CCW bill was passed we were able to get a definition on concealed vs visible.

Quote

69-2429. Terms, defined.

For purposes of the Concealed Handgun Permit Act:

(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;

Despite this I would be cautious about holstered open carry in a car

XDHusker · « **Reply #18 on:** December 31, 2012, 12:03:27 PM »

Quote from: Dan W on December 31, 2012, 12:00:32 PM

Back when the CCW bill was passed we were able to get a definition on concealed vs visible.

Despite this I would be cautious about holstered open carry in a car

Wasn't there an incident in Omaha in the last year or two where a guy shot a robber in a gas station (kid with a shotgun) and didn't have a CCW. However, somebody said they could see some portion of the gun and they considered it open carry and didn't press charges.

Dan W · « **Reply #19 on:** December 31, 2012, 12:12:05 PM »

Walgreens