June 2014 - Pg 4
by Marty Hayes, J.D.
Several topics from current events have come up on which I would like to comment. The first is the stupidity of what Network Affiliated Attorney Andrew Branca calls the “Open Carry In Your Face!” crowd in his commentary at http://legalinsurrection.com/2014/05/op-ed-open-carry-activists-score-yet-another-own-goal/. Seems that two twerps decided to openly carry a couple of semi-automatic rifles into a Chipotle restaurant, apparently pausing for photos before they left. I haven’t followed the story completely–there’ve been too many other things happening in my life–but if any of you are considering doing something similar, please do not do it near me.
I am afraid I might mistake you for one of the nut jobs who’ve recently taken their semi-automatic rifles into public places and started shooting people. I am a pretty good shot, and if you make a threatening move as I hold you at gunpoint awaiting the arrival of at least a dozen cops, well, you will probably die. Seriously, how is a responsibly armed citizen supposed to tell you apart? And guess what…If I held you at gunpoint and you waited for the cops to show up and sort it out, they may well arrest you, and here in Washington State you would likely be convicted. That’s because our law reads: RCW 9.41.270 Weapons apparently capable of producing bodily harm — Unlawful carrying or handling — Penalty — Exceptions.
(1) It shall be unlawful for any person to carry, exhibit, display, or draw any firearm, dagger, sword, knife or other cutting or stabbing instrument, club, or any other weapon apparently capable of producing bodily harm, in a manner, under circumstances, and at a time and place that either manifests an intent to intimidate another or that warrants alarm for the safety of other persons.
(2) Any person violating the provisions of subsection (1) above shall be guilty of a gross misdemeanor. If any person is convicted of a violation of subsection (1) of this section, the person shall lose his or her concealed pistol license, if any. The court shall send notice of the revocation to the department of licensing, and the city, town, or county which issued the license.
(3) Subsection (1) of this section shall not apply to or affect the following:
(a) Any act committed by a person while in his or her place of abode or fixed place of business;
(b) Any person who by virtue of his or her office or public employment is vested by law with a duty to preserve public safety, maintain public order, or to make arrests for offenses, while in the performance of such duty;
(c) Any person acting for the purpose of protecting himself or herself against the use of presently threatened unlawful force by another, or for the purpose of protecting another against the use of such unlawful force by a third person;
(d) Any person making or assisting in making a lawful arrest for the commission of a felony; or
(e) Any person engaged in military activities sponsored by the federal or state governments.
Interestingly, here in WA state, it is commonly held that “open carry” is a legal activity, although subject to the above restrictions. Would carrying a semi-automatic rifle on a tactical sling, in a place of business in the public domain without any recognizable purpose, be considered “in a manner, and under circumstances that either manifests an intent to intimidate another or that warrants alarm for the safety of other persons?”
In 1994, Washington’s appellate court affirmed Randolph Spencer’s brandishing conviction, commenting, “… any reasonable person would feel alarmed upon seeing, on a residential street at night, a man carrying a visibly loaded assault rifle in an assaultive manner…” (75 Wn. App. 118, STATE v. SPENCER) Would the same apply to rifles openly carried into a place of business? I don’t know.