Home > Alerts & Updates > 2014 Bill Tracking Page > HB 276: Violence Against Open Carry Gun Owners

House sponsor, Curtis Oda

Senate sponsor, Scott Jenkins

House Bill 276: Violence Against Open Carry Gun Owners

by statuator Curtis Oda, house district 14, "Republican", and statutator Scott Jenkins, senate district 20, "Republican".

Summary: Did you (or a friend) strap on a rifle for a rally/hearing, or to sell outside a gun show?  If HB 276 passes, unholstered open carry gun owners will be targeted for violent harassment and arrest.  Other gun owners will be at increased risk of abuse as well.
 
Status: This bill passed the house (63 yeas, 8 nays, 4 absent/not voting), passed the senate (27 yeas, 1 nay, 1 absent/not voting), and signed by Executive Monarch Gary Herbert.

UT Gun Rights opposes this bill.  See its bill status page.  To contact your statutators, click here.

"REFRESH" this page ("F-5" on most browsers) to see latest version.  Last updated: 3/14/14 at 1:00a.

Ready to live in a state where people like these are specifically targeted for "disorderly conduct"? Click on picture to enlarge.

The Devilish Details: The "Holstered or Encased" Trap

Currently, police have broad statutory latitude to harass, intimidate, and arrest gun owners in public situations via "disorderly conduct" and other nefarious statutes.

HB 276 is an attack on gun owners who open carry, and makes things worse with regard to "disorderly conduct" statutes.  Lines 28-38 outline current statute (deleted language has strikethrough) and new proposed language (underlined and italicized):

"(1) A person is guilty of disorderly conduct if:
(a) [he] the person refuses to comply with the lawful order of [the police] a law enforcement officer to move from a public place, or knowingly creates a hazardous or physically offensive condition, by any act which serves no legitimate purpose; or
(b) intending to cause public inconvenience, annoyance, or alarm, or recklessly creating a risk thereof, [he] the person:
(i) engages in fighting or in violent, tumultuous, or threatening behavior;
(ii) makes unreasonable noises in a public place;
(iii) makes unreasonable noises in a private place which can be heard in a public place; or
(iv) obstructs vehicular or pedestrian traffic."

HB 276 then adds the following "exclusion":

"(3) The mere carrying or possession of a holstered or encased firearm, whether visible or concealed, without additional behavior or circumstances that would cause a reasonable person to believe the holstered or encased firearm was carried or possessed unlawfully or with criminal intent, does not constitute a violation of this section. For purposes of this section, the belief of a reasonable person may not be based on a mistake of law..." (lines 43-47) [bold added]

"Have we got a deal for you gun owners!"

You probably noticed that the "exclusion" created above only applies to "holstered" or "encased" firearms.  What if you possess a firearm in any other condition in public?

Let's say you, like many other Utahans, strapped on a rifle (loaded or unloaded) to peacefully attend a pro-gun rally or hearing at the state capitol?

In the corrupt world of statutory language, by specifically exempting one thing (carrying a firearm in a holster), other things in that same class are allowed (i.e. the government can prosecute gun owners who carry without a holster).

In other words, because this new "exclusion" specifically EXCLUDES YOU, you are now singled out for extra police scrutiny and potentially violent harassment and arrest.

It is therefore reasonable to read what is — at a minimum — implicitly authorized for prosecution by reversing the language of the exception as follows:

"The mere carrying or possession of a un-holstered or un-encased firearm, whether visible or concealed, without additional behavior or circumstances that would cause a reasonable person to believe the un-holstered or un-encased firearm was carried or possessed unlawfully or with criminal intent, does not constitute a violation of this section."

The language "holstered or encased" was specifically written to exclude firearms that are not encased or holstered.  If HB 276 is passed, citizens who desire to safely and peaceably carry rifles in a "public place" may expect to be threatened and possibly violently attacked and arrested by government agents.

Again, under HB 276 harmless activities and people can be targeted because they are NOT specifically exempted.

Under HB 276, this sort of behavior and spirit would be banned in the state of Utah.

Nebulous Phrases Rarely Help Gun Owners

HB 276 also introduces nebulous phrases like "reasonable person" with belief in potential "criminal intent" — phrases that are historically abused by police agencies and prosecutors.  Innocent gun owners always lose when statute is unclear.  What it really means is that if you're carrying a gun around, you will be more vulnerable to harassment, intimidation, physical (and financial) abuse, arrest, and prosecution under HB 276.

HB 276 proponents ignore the fact that this new supposed "exclusion" does not exist if someone believes that carrying a firearm poses a "hazardous or physically offensive condition," or that "criminal intent" is not specified to only apply to this section of statute.

Whenever someone has a feeling of a "hazardous or physically offensive condition," and believes that gun owners are creating, or contributing to, that situation, HB 276 will make it easier to harass and prosecute them. 

Here's the bottom line.  If statutators were truly motivated to protect gun owners, their attorneys would insert clear, concise language like the following:

"Carrying a firearm, in and of itself, does not constitute a hazardous or physically offensive condition."

In addition to clear language, there would be a clear penalty for police who blatantly harass such people.  There is none.  This double-standard is typical amongst gun controllers.  Citizens are always punished while police, prosecutors, and judges may choose to violate statute with government-sanctioned immunity.

Previous Sponsor Paul Ray Portrayed HB 276 as Gun Control

House statutator Paul Ray recently handed HB 276 off to Curtis Oda.  Bill supporters continue to ignore the fact that Paul Ray candidly and repeatedly shared his desires to utilize HB 276 to expose open carry gun owners to possible violent attack by government agents:

Click on picture to enlarge.

"So if someone is carrying a gun around in their hand they can be cited. This bill really clarifies things and gives them an outline to go by of in this situation you can write a ticket and in this situation you can't. If they strap a rifle onto their back and walk into JC Penney, you can be cited for disorderly, which you ought to be. But if you have your handgun holstered then you are ok." [bold added]
Source: "Proposed bill to further define open carry laws," by Mary Richards, KSL.com, Jan. 3, 2014.

"'If you decide to make a political statement and strap an AR-15 [rifle] on your back and go shopping, there is a very good likelihood you'll be cited for disorderly conduct,' Ray said. He said recent images of people at committee hearings on Utah's Capitol Hill with gun rights advocates propping rifles against chairs near children angered him and said his bill [HB 268 in the 2013 session] wouldn't protect people acting that way from facing disorderly conduct charges.  'I saw the picture — he had it sitting next to a child — which just irritates me,'" Ray said. [bold added]
Source: "House passes bill on openly carrying firearms," David Montero, Salt Lake Tribune, Feb. 28 2013.

"Rep. Paul Ray, R-Clearfield, sponsor of HB268, said if the bill [HB 268 in the 2013 session] had been law during last week's so-called 'Gun Day' at the Legislature, a man who brandished an assault rifle next to a child at a committee hearing could have been cited.

"'This is a disorderly conduct bill. This bill [HB 268 in the 2013 session] is not about allowing people to open carry,'" Ray said." [bold added]
Source: "Gov. Gary Herbert says he doesn't like 'constitutional carry' bill," Lisa Riley Roche, Deseret News, Feb. 28 2013.

Ray's allegiance was NOT to innocent gun owners.  He was in favor of seeing them harassed, arrested, and potentially violently abused under the auspices of "disorderly conduct."

Curtis Oda was likewise less than impressive on UT Gun Rights' 2013 Utah Government Corruption Report, receiving a -75% rating to demonstrate his strong commitment to abuse of government power.

Remember this fiasco?

Why Are "Gun Rights" Groups Supporting Gun Control?

In the 2013 Utah Government Corruption Report, a 2013 rally flier, and elsewhere, UT Gun Rights warned how false friends appear to be on your side, but fundamentally serve the purposes of your opposition. And how important it is to remain apprehensive about those who tell you things you want to hear.

UT Gun Rights also revealed a secret communication between Utah Shooting Sports Council (USSC) chairman W. Clark Aposhian and Mike Mower, Executive Monarch Gary Herbert's Deputy for Community Outreach. In it, Aposhian appeared to secretively facilitate opposition to last year's gun rights bill HB 76 (i.e. to carry "unloaded" firearms concealed without a permit). To read the transcript, click here.

Unfortunately, the betrayals and undermining of your rights continue.  According to a recent alert by the USSC, HB 276,

"…Is a well-reasoned bill which will take pressure off of both law-enforcement and the courts. It supplies law enforcement with more precise guidance on what constitutes disorderly conduct so as to not punish innocent activities."
Source: USSC Alert for Jan. 23, 2014.

Why would this organization, which claims to represent the rights of Utah's gun owners, argue such nonsense? Could it possibly have missed previous sponsor Paul Ray's public and oft-repeated objectives?  Or is it complicit in the effort to attack gun owners who choose to carry openly?

USSC mentioned the "concern" UT Gun Rights has consistently raised in the following manner:

"Firearms that are not encased or not holstered would continue to be treated as they are today.  Carrying guns in such a manner would not necessarily be disorderly conduct, most law enforcement officers would respect your right to carry in such a manner, and the few miscreant law enforcement officers who have been abusing gun owners would continue to do so.

"Improving gun laws is an ongoing process and we hope to make more improvements to this section of the law in the future.

"A concern that has been raised with the above language is that since it explicitly exempts holstered and encased firearms from disorderly conduct it would imply that the carrying of un-encased or un-holstered firearms is disorderly conduct.  Both our and NRA’s legal counsel has looked at this and determined that this is not the case."
Source: USSC Alert for Mar. 6, 2014.

How comforting.  And where are these attorneys' substantive arguments in support of such a claim?  Perhaps nothing more is provided because it would subject them to condemnation and ridicule.

USSC would have you base your position on HB 276 solely on trusting their (and supposedly the NRA's) attorneys.  Was it USSC’s attorney who determined last year that USSC Chairman Clark Aposhian should undertake secretive efforts to coordinate the opposition to HB 76 by the Crossroads of the West Gun Show owner to governor Herbert's staff?

Should you likewise trust the legal judgment of the NRA?  For example, in 2002 the NRA supported SB 950 in California to create the Armed Prohibited Persons System (APPS).  On January 27, 2014, the NRA issued an alert regarding the monster APPS they helped to create by stating,

 "While these raids [resulting from APPS] are promoted by politicians as intended to disarm dangerous criminals, they actually more often target unsuspecting citizens who present no danger and have no idea that they are prohibited from possessing firearms and ammunition."

Are USSC and the NRA engaged in a sickening "job security" program by promoting anti-gun owner bills and politicians and then "being there" to help fight against the terrible consequences they helped to create?

USSC is not alone in subjecting Utah's open carry gun owners to potential violent attack by government statute enforcement agents.  According to GoUtah!:

"The 'reasonable person' standard as used in this bill creates a high level of protection for someone who is legally and peaceably carrying a holstered self-defense weapon. The language invoking the hypothetical 'reasonable person' is a long-established legal standard used in many existing statutes, including Utah’s self-defense law.

"This is a big improvement over the existing law in our opinion, and HB276 as currently written would enable us to achieve this improvement without surrendering any freedoms that we already have. It’s the equivalent of taking two steps forward without taking any steps backward on our journey toward greater legal recognition of the right to bear arms." [bold added]
Source: GoUtah! alert for Jan. 29, 2014.

There's that pesky gun control keyword again: "holstered".  What about those who strap them on or hold them proudly at rallies, as their forefathers did before them?  Their rights, apparently, are no longer included by organizations like USSC and GoUtah!.

GoUtah! reacted to UT Gun Rights' above criticisms of HB 276.  Unfortunately, it failed to provide substantive facts or analysis to back up its repeated claims.

Consider that, were USSC's or GoUtah's opinions indeed accurate, then the previous bill sponsor, statutator Paul Ray, is either lying to the public, or obliviously unaware of what his own bill would have actually accomplished.

Appropriate Action: Contact The Two People Who Own the Statutarium ("legislature")

As the 2013 Utah Government Corruption Report amply demonstrates, two monarchs abuse and dominate the house and senate and work together to destroy your rights: house speaker Rebecca Lockhart and senate president Wayne Niederhauser. Contrary to what you learned in civics class, your house and senate statutators merely serve their gun control agenda.

How can two people possibly exercise such control? As one example, the house speaker and senate president alone appoint and remove EVERY member of EVERY committee. Lockhart and Niederhauser are empowered to do this without any review or confirmation process.
Sources: “The general duties of the Speaker are to:... appoint the members of committees…” (House Rules 1-3-102. Duties of the speaker) and “The general duties of the president are to:… appoint the members of committees…” (SR1-3-102. Duties of the president)

Consider the vast implications of this incredible power! No bill may be voted on in the house or senate without going through a committee. As a result, bills live or die almost entirely upon the calculated orders of these two monarchs.

Their powers are so extreme, no provision exists in the house or senate rules to fire the monarchs before their two-year terms are over. They lord over each body, trade favors, and sell your rights; all while pretending that decisions are made by the will of the majority instead of their monarchial authority.

The political buck stops with Lockhart and Niederhauser for failing to advance positive gun owner bills, and for every gun control bill enacted. Until more statutators are motivated to oppose the iron fists of the monarchs’ near absolute power, your rights will continue to be undermined.

For House Monarchess Rebecca Lockhart's contact information (and the rest of the house statutators), click here.  For Senate Monarch Wayne Niederhauser's contact information (and the rest of the senate statutators), click here. 

Other views & opinions to compare and contrast: GoUtah! response; Legal Heat; National Rifle Association; Utah Grassroots; Utah Political Capitol; Utah Shooting Sports Council

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