Man Arrested for Carrying a Concealed Weapon (Openly)

[OCCI]

http://www.cleveland.com/broadview-heights/index.ssf/2012/02/man_arrested_for_carrying_a_co.html

Man arrested for carrying a concealed weapon: Broadview Heights Police Blotter(Cleveland)
Published: Thursday, February 09, 2012, 9:26 AM

"BROADVIEW HEIGHTS
CONCEALED WEAPON, ROYALTON ROAD: Dispatch received word that a man was spotted with a gun near Avery and Royalton roads at 1:46 p.m. Feb. 4.

Officers arrived at the area and spotted the man walking westbound on Royalton Road. The man was carrying a large gym bag with a brown box sticking out of it.

An officer pulled to the side of the road and called to the man and when the man turned, the officer noticed what appeared to be the butt end of a handgun in his pants pocket.

When asked what he was carrying, Devalle Joiner, 26, of Cleveland, said he had a gun in the box and one in his pocket. He also admitted that he did not have a permit to carry a concealed weapon.

An officer approached, placed Devalle in handcuffs and took the handgun from him."

 

[cartisdm]

Aren't you allowed to Open Carry in Ohio? If you could see the gun sticking out of the guys pocket, and he was carrying the shotgun in a case...what was the problem?

 

[gkeil961]

You can open carry in Ohio, however having the gun concealed and "accidentally" showing the butt of the firearm does not constitute open carry, you going to open carry, you must have the firearm fully displayed, and the firearm inside the gym back is another issue in itself, that is not open carry when you are carrying it "inside" a gym bag, for that you must have a "Concealed Carry Permit".

I hope it works out well for this man, however I feel he made a mistake on the way he carried these firearms !

 

[captain384]

If you can see the gun it sounds like open carry to me as long as he didn't try to hide it when the officer approached.

 

[thoricuncle]

Also, the "one in his pocket" would definitely be concealed.

I hope this is an action that can be attributed to stupidity and not villainy.

 

[Firefighterchen]

Gkeil and Thor have it right. I think those that say since open carry is legal he should have been fine have it slightly backwards. It wasn't a problem of open carry, it was concealing the handgun without a permit. It would be the same if it was holstered and it was peaking from under a jacket. Putting any part of the firearm hidden under/in something on the body other than a holster is considered concealed...if he had a permit, he would have been fine with it partially concealed because open carry is legal...but you can't partially conceal without a permit.

I don't know Ohio law except from what I'm assuming from this story...what he should have done is learn the laws better, and if these were his first firearms, he should of worn them completely openly in a holster proudly (at least the handgun). Unless of course you still need a permit to open carry in Ohio?

 

[firelooker]

Glad I live in AZ where there aren't any stupid laws like this.

 

[agrippakc]

Glad I don't live in ohio...

 

[Axeanda45]

A permit would NOT cover the long gun in his gym bag... Ohio's permit is for Handguns only...

I do know for a FACT that you can walk down the street with a long gun in your hand(s) or slung on your shoulder(s) and you would be legal here..
However, I am not sure about the laws on long gun carry while in a case or container.... (other than a permit has nothing to do with it) I will have to look that one up.... .

 

[RJCoke]

Open Carry

Most states require that an open carry weapon may NOT be concealed by any part of clothing, which means in your pocket, a shirt or coat hangin over it, etc. The guy was probably leagal carrying the one in the gym bag if it was not loaded and no ammo was carried with it, althouh I am not sure about Ohio law on this part. Even though it may sound totally unfair it sounds to me like guy was wrong in the way he was carrying them,especially the one in his pants pocket

 

[ccwaz]

It all depends on the specifics of the state law. Formerly even here in AZ, a piece carried that was even partially covered accidentally by a jacket or even by a holster could have been taken as an illegally concealed weapon, thanks to a number of activist judges who had taken it upon themselves to interpret the law that way. We got that fixed with some good legislation to the point that now unless you are prohibited from owning a firearm, you can carry openly or concealed with or without a permit. However, many don't realize that even here, if you have a firearm of any kind in your possession when walking or driving within 1,000 feet of the outer limits of a school zone, you are in felony violation of federal law, unless you have a State-issued carry permit. This would even apply to people who live across the street from a school, who could be arrested for having a firearm in their house. Bad law, stupid law - but there it is. Take the class, get the permit, follow the rules, and we'll keep working on getting the bad laws changed as soon as we can.

 

[OCCI]

Just to throw this out there ... google Terry vs. Ohio.

"Terry v. Ohio, 392 U.S. 1 (1968), was a landmark decision by the United States Supreme Court which held that the Fourth Amendment prohibition on unreasonable searches and seizures is not violated when a police officer stops a suspect on the street and frisks him without probable cause to arrest, the police officer has a reasonable suspicion that the person has committed, is committing, or is about to commit a crime and has a reasonable belief that the person "may be armed and presently dangerous." (392 U.S. 1, at 30.)"

 

[tattedupboy]

Herein lies the problem. I could never understand why so many states allow unlicensed open carry, but require training, the payment of fees, fingerprinting, and a license if you decide to put a jacket on over that weapon. Never made any sense to me. Treat all law abiding carriers the same, regardless of how they choose to carry, and harmless incidents like these won't land otherwise law-abiding citizens in jail.

 

[wuzfuz]

In a town in southern Arizona, a police officer arrested a man in a bar for carrying a concealed weapon (prior to passage of the CCW law.) He was taken before the city magistrate on the charge. the magistrate asked the officer what led him to conclude that the man was carrying a concealed weapon. The officer stated he saw the outline under the man'z t-shirt. The magistrate then said, "Then it wasn't really concealed, was it? Case dismissed." He then proceeded to chew the officer out, saying instead of the CCW charge, he should have been arrested for having a weapon in the bar. Needless to sqay, the officer really had a red face.

 

[tionico]

Ohio is one of the most gun-friendly states, but Cleveland has fought state laws for years, trying to make thaat place into a Litle Chicago. State law pre-empts, and a recent OHSC ruing confirms this, and took down all Cleveland's restrictive local laws. Likely local LEO are still miffed they can't huff and puff any more.
However, this guy appears to have been conducting himself outside stste law. Concealed carry permits are easy to get, shall issue is the rule. Having that permit makes life easy. Without it, however, open carry is legal for handguns, loaded or not, but it must truly be OPEN.. not hidden or covered by clothing (pocket, shirt-tail, etc). Unloaded ina bag or such is also legal. Long cun carry, either cased or open, is also legal, though I believe an openly carried long gun must not be loaded. Cased, no problem. This seems more a case of ignorance of the law than evil intent. Seems some local hoplophobe made the phone call. Seems, as well, the 911 operators should have asked more detailed questions.. is he walking down the street, is he threatening anyone, what's he DOING with those guns? In Ohio, outside the four or so big cities, firearms are common, and no one thinks twice about them. Part of life in rural Ohio. Big cities, well, think more like Chicago or Los Angeles. Hope this guy finds a decent judge, or is able to seat a fair jury that will nullify and interpose. Sure, he was "dumb", but criminal? Doesn't seem so.

 

[Axeanda45]

It all depends on the specifics of the state law. Formerly even here in AZ, a piece carried that was even partially covered accidentally by a jacket or even by a holster could have been taken as an illegally concealed weapon, thanks to a number of activist judges who had taken it upon themselves to interpret the law that way. We got that fixed with some good legislation to the point that now unless you are prohibited from owning a firearm, you can carry openly or concealed with or without a permit. However, many don't realize that even here, if you have a firearm of any kind in your possession when walking or driving within 1,000 feet of the outer limits of a school zone, you are in felony violation of federal law, unless you have a State-issued carry permit. This would even apply to people who live across the street from a school, who could be arrested for having a firearm in their house. Bad law, stupid law - but there it is. Take the class, get the permit, follow the rules, and we'll keep working on getting the bad laws changed as soon as we can.

Wrong.... You can still have a gun on your private property even if that property lies within the 1000 ft....


18 USC § 921(a)(25) The term “school zone” means—

(A) in, or on the grounds of, a public, parochial or private school; or

(B) within a distance of 1,000 feet from the grounds of a public, parochial or private school.

18 USC § 922 (q)(2) --

(A) It shall be unlawful for any individual knowingly to possess a firearm that has moved in or that otherwise affects interstate or foreign commerce at a place that the individual knows, or has reasonable cause to believe, is a school zone.

(B) Subparagraph (A) does not apply to the possession of a firearm—
(i) on private property not part of school grounds;
(ii) if the individual possessing the firearm is licensed to do so by the State in which the school zone is located or a political subdivision of the State, and the law of the State or political subdivision requires that, before an individual obtains such a license, the law enforcement authorities of the State or political subdivision verify that the individual is qualified under law to receive the license;
(iii) that is—
(I) not loaded; and
(II) in a locked container, or a locked firearms rack that is on a motor vehicle;
(iv) by an individual for use in a program approved by a school in the school zone;
(v) by an individual in accordance with a contract entered into between a school in the school zone and the individual or an employer of the individual;

(vi) by a law enforcement officer acting in his or her official capacity; or

(vii) that is unloaded and is possessed by an individual while traversing school premises for the purpose of gaining access to public or private lands open to hunting, if the entry on school premises is authorized by school authorities.

 

[firelooker]

Police officers need to be sure that what they're charging a person with is really what is needed.

 

[seeley booth]

i can carry my gun into target world with out a CCW.. for target practice
i read the laws on open and concealed weapon

 

[OCCI]

How does this fit into the mix here?

9.68 Right to bear arms
(C) As used in this section:
(1) The possession, transporting, or carrying of firearms, their components, or their ammunition include, but are not limited to, the possession, transporting, or carrying, openly or concealed on a person’s person or concealed ready at hand, of firearms, their components, or their ammunition.

Now as we know in Ohio we are a code law state and not a common law state. Which means that it has to be in or prohibited by the ORC in order for it to be criminal conduct. If open carry is legal because it isnt prohibited in Ohio and there is no law requiring the gun to be in a container/holster, loaded or unloaded, with or without a license so long as it isnt concealed during its transport, not withstanding vehicle & transportation law (ORC2923.16 ); that it wasnt concealed as it was seen by law enforcement and the individual who called it in ... then what law did this man break?

As far as the stop goes, its in my opinion (and im not a lawyer) that it was an illegal stop. I believe that a "Terry" stop has to meet all the requirements in order to stop a person without probable cause.

Terry vs. Ohio
Unreasonable searches and seizures is not violated when:
if the police officer has a reasonable suspicion that the person has
1. committed a crime (if the crime is CCW it wasnt discovered until after the illegal stop)
2. is committing a crime (there was no evidence of a crime in progress)
3. or is about to commit a crime (there was no evidence he was about to commit a crime)
& (notice it doesnt say or)
4. has a reasonable belief that the person "may be armed
& (notice it doesnt say or)
5. presently dangerous." (carrying a gun does not mean you are presently dangerous)
(392 U.S. 1, at 30.)

I remember many many years ago in downtown Columbus where police were sitting undercover outside of headshops stopping folks as they came out and frisking them and asking for ID, I believe someone took it to court and it was deamed an illegal search and seizer because while the items in the store could be used illegally it was not determained if they were about to commit a crime. I believe the cases were either thrown out or plead out. It has prob been 10 years or more, im sure things changed since then, im not sure.

Simply having a gun on a persons IMHO isnt cause for a stop without some sort of crime being or about to be commited.

PS: I do not know all the facts of this case. My opinion is based on what we know from the article alone and we know how well journalists double check facts or tell the whole story. =)

PPS: I also believe that Ohio law should read that if a person is arrested for carrying a concealed weapon and could legally own the firearm and would be approved for a CHL in Ohio or any reciprocity states then the charges should not be a felony. Ive seen judges reduce charges and even dismiss charges of individuals who where caught without a drivers license & be given the opportunity to get in compliance with the law. Cant we have this common sense option for firearms?

-Aaron B Mahan
President
Ohio Concealed Carry Institute, inc.

 

[ESD]

i can carry my gun into target world with out a CCW.. for target practice
i read the laws on open and concealed weapon

That would depend on how you carry it friend? Yes, you could carry the gun openly in a holster on your side. But if you carried it concealed, you would indeed need the CCW in Ohio, regardless of where your travels permit you to conceal carry. Furthermore, you could carry the same gun in a case, box, bag, etc...from your vehicle into the shooting range. But if you carry a handgun concealed in Ohio, you must have CCW unless you are LEO or active Military, etc...