Saturday, March 15, 2014

UT: Legislature says: Open Carry is not Disorderly Conduct

There has been an ongoing debate in the Utah legislature about the open carry of firearms.   Some people have been arrested for openly carrying holstered firearms.  Open carry is legal in Utah.  The charge has been, as it was in Wisconsin five years ago, "Disorderly Conduct".

Disorderly conduct tends to be a catchall phrase that is used to crack down on conduct that is not illegal, but that the police disapprove of.  Being arrested can be a significant punishment.   The Wisconsin AG eventually ruled that openly carrying a firearm is *not* disorderly conduct by itself.   Police departments paid out several settlements to people that they had charged with disorderly conduct.

Wisconsin then passed a shall issue law for concealed carry, one of the least restrictive in the nation.  As part of that law, the legislature clarified, in statute, that openly carrying a gun was *not* disorderly conduct.    From Wisconsin ACT 35:

66.0409 (6) Unless other facts and circumstances that indicate a criminal or malicious intent on the part of the person apply, no person may be in violation of, or be charged with a violation of, an ordinance of a political subdivision relating to disorderly conduct or other inappropriate behavior for loading, carrying, or going armed with a firearm, without regard to whether the firearm is loaded or is concealed or openly carried. Any ordinance in violation of this subsection does not apply

The State of Utah enacted its shall issue law long before Wisconsin.  It had state constitutional protection of the right to keep and bear arms long before Wisconsin.   It lacked statutory protection of open carry.   The bill that passed the legislature on 13 March, to clarify that open carry is not disorderly conduct, moves Utah toward a Wisconsin level of protection of the right to keep and bear arms.

Here is the Wisconsin Constitutional provision:

Article I, Section 25
The people have the right to keep and bear arms for security, defense, hunting, recreation or any other lawful purpose.

Here is the Utah Constitutional provision:

 Article I, Section 6
The individual right of the people to keep and bear arms for security and defense of self, family, others, property, or the state, as well as for other lawful purposes shall not be infringed; but nothing herein shall prevent the legislature from defining the lawful use of arms.

The Wisconsin provision, passed in 1998, is more protective, it does not carve out an exemption for the legislature to define what is lawful and what is not.  

 Here is the Utah wording to clarify that open carry is not disorderly conduct.  Utah bill HB0276:

             43          (3) The mere carrying or possession of a holstered or encased firearm, whether visible
             44      or concealed, without additional behavior or circumstances that would cause a reasonable
             45      person to believe the holstered or encased firearm was carried or possessed S. [ unlawfully or ] .S
             45a      with
             46      criminal intent, does not constitute a violation of this section. S. [ For purposes of this section, the
             47      belief of a reasonable person may not be based on a mistake of law. ] .S Nothing in this Subsection
             48      (3) may limit or prohibit a law enforcement officer from approaching or engaging any person in
             49      a voluntary conversation.
The reform is now headed to Governor Gary Herbert's desk.   Governor Herbert vetoed a constitutional carry bill in September of 2013.    Governor Herbert has 10 days, not counting the day he receives the bill or Sundays, to sign or veto the bill.  If he does not veto it during that period, it becomes law.  If the legislature adjourns before the law is signed, and it is not vetoed, it becomes law 20 days after adjournment.

©2014 by Dean Weingarten: Permission to share is granted when this notice is included.
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1 comment:

Unknown said...

Here in Florida open carry is limited to camping, fishing and hunting trips. However the statutes do say, in 790.25 (4) CONSTRUCTION.—This act shall be liberally construed to carry out the declaration of policy herein and in favor of the constitutional right to keep and bear arms for lawful purposes." the disorderly conduct nonsense won't fly here.