Disclaimer: I am not a lawyer, and this article is purely an opinion analysis. This is not to be taken as legal advice. Consult a Bar-certified lawyer prior to making any decisions based upon the information cited in this article.
Another tired argument from Black (Criminal) Lives Matter is the assertion that a criminal waving a gun around is covered by “open carry” laws in those particular states.
I’ve seen this argument made in regards to Tamir Rice.
I’ve seen it made in relation to Alton Sterling.
I’ve seen it made in the defense of Keith Scott.
I’m going to type this following sentence in all caps, with bold print, italics, and underline, so that there is no mistaking what I have to say on that topic.
WAVING A GUN AROUND IS NOT OPEN CARRY. IT IS **BRANDISHING.**
This is, hands down, bar none, the absolute stupidest argument I have heard in defense of BCLM.
Why is it stupid, you ask?
Why, I’m glad you asked.
Let’s break it down.
OPEN CARRY LAWS
For the purposes of this article, we shall pull up the relevant laws from Ohio (where Tamir Rice was shot and killed), Louisiana (where Alton Sterling was shot and killed), and North Carolina (where Keith Scott was shot and killed).
Ohio’s open carry laws derive from their state constitution, and are clarified in Ohio Revised Code 9.68:
(A) The individual right to keep and bear arms, being a fundamental individual right that predates the United States Constitution and Ohio Constitution, and being a constitutionally protected right in every part of Ohio, the general assembly finds the need to provide uniform laws throughout the state regulating the ownership, possession, purchase, other acquisition, transport, storage, carrying, sale, or other transfer of firearms, their components, and their ammunition. Except as specifically provided by the United States Constitution, Ohio Constitution, state law, or federal law, a person, without further license, permission, restriction, delay, or process, may own, possess, purchase, sell, transfer, transport, store, or keep any firearm, part of a firearm, its components, and its ammunition.
(B) In addition to any other relief provided, the court shall award costs and reasonable attorney fees to any person, group, or entity that prevails in a challenge to an ordinance, rule, or regulation as being in conflict with this section.
It should be noted that, under 18 US Code, Part I, Chapter 44, Section 922:
You will see this material again.
Louisiana Revised Statutes, Title 14, Section 95.8 legalizes open carry by adults through making it illegal for minors and not explicitly prohibiting open carry:
§95.8. Illegal possession of a handgun by a juvenile
A. It is unlawful for any person who has not attained the age of seventeen years knowingly to possess any handgun on his person. Any person possessing any handgun in violation of this Section commits the offense of illegal possession of a handgun by a juvenile.
B.(1) On a first conviction, the offender shall be fined not more than one hundred dollars and imprisoned for not less than ninety days and not more than six months.
(2) On a second conviction, the offender shall be fined not more than five hundred dollars and imprisoned with or without hard labor for not more than two years.
(3) On a third or subsequent conviction, the offender shall be fined not more than one thousand dollars and imprisoned at hard labor for not more than five years.
(4) A juvenile adjudicated delinquent under this Section, having been previously found guilty or adjudicated delinquent for any crime of violence as defined by R.S. 14:2(B), or attempt or conspiracy to commit any such offense, shall upon a first or subsequent conviction be fined not less than five hundred dollars and not more than one thousand dollars and shall be imprisoned with or without hard labor for not less than six months and not more than five years. At least ninety days shall be served without benefit of probation, parole, or suspension of sentence.
C. The provisions of this Section shall not apply to any person under the age of seventeen years who is:
(1) Attending a hunter’s safety course or a firearms safety course.
(2) Engaging in practice in the use of a firearm or target shooting at an established range.
(3) Hunting or trapping pursuant to a valid license issued to him pursuant to the laws of this state.
(4) Traveling to or from any activity described in Paragraph (1), (2), or (3) of this Subsection while in possession of an unloaded gun.
(5) On real property with the permission of his parent or legal guardian and with the permission of the owner or lessee of the property.
(6) At such person’s residence and who, with the permission of such person’s parent or legal guardian, possesses a handgun.
(7) Possessing a handgun with the written permission of such person’s parent or legal guardian; provided that such person carries on his person a copy of such written permission.
D. For the purposes of this Section “handgun” means a firearm as defined in R.S. 14:37.2, provided however, that the barrel length shall not exceed twelve inches.
North Carolina laws are a little confusing. They are honestly the first state I have encountered where it actually might be necessary to have a JD and pass the NC Bar to actually fully understand the laws.
The best that I can surmise, open carry is authorized by their version of the 2nd Amendment in the North Carolina State Constitution, specifically Article I, Section 30:
Sec. 30. Militia and the right to bear arms.
A well regulated militia being necessary to the security of a free State, the right of the people to keep and bear arms shall not be infringed; and, as standing armies in time of peace are dangerous to liberty, they shall not be maintained, and the military shall be kept under strict subordination to, and governed by, the civil power. Nothing herein shall justify the practice of carrying concealed weapons, or prevent the General Assembly from enacting penal statutes against that practice.
Now that we’ve managed to define what authorizes open carry in those three states, let’s find what constitutes brandishing in those states.
The common definition of brandishing is to have a firearm out of the holster in an unlawful fashion. Generally speaking, if you are in public, not at a shooting range, and your weapon clears the holster, you are brandishing. It is generally a lesser offense than to actually point the firearm at an individual or to discharge it unlawfully within city limits, but is still often grounds for revocation of a concealed carry permit and/or seizure of one’s firearms.
But, the definition (and terminology) varies from state to state. Brandishing is the layman’s term.
Let’s take a look at Ohio.
There are three laws I was able to find that would relate to brandishing a firearm, two that implies it and one that directly states it.
The implied one would fall under disorderly conduct, according to Ohio Revised Code 2917.11:
(A) No person shall recklessly cause inconvenience, annoyance, or alarm to another by doing any of the following:
(1) Engaging in fighting, in threatening harm to persons or property, or in violent or turbulent behavior;
(2) Making unreasonable noise or an offensively coarse utterance, gesture, or display or communicating unwarranted and grossly abusive language to any person;
(3) Insulting, taunting, or challenging another, under circumstances in which that conduct is likely to provoke a violent response;
(4) Hindering or preventing the movement of persons on a public street, road, highway, or right-of-way, or to, from, within, or upon public or private property, so as to interfere with the rights of others, and by any act that serves no lawful and reasonable purpose of the offender;
(5) Creating a condition that is physically offensive to persons or that presents a risk of physical harm to persons or property, by any act that serves no lawful and reasonable purpose of the offender.
Look at the fifth item on that list. One that has a firearm in hand and is waving it around arguably is “creating a condition that is physically offensive to persons” and “presents a risk of physical harm to persons or property.”
The other one falls under menacing, which is Ohio Revised Code 2903.22:
(A) No person shall knowingly cause another to believe that the offender will cause physical harm to the person or property of the other person, the other person’s unborn, or a member of the other person’s immediate family. In addition to any other basis for the other person’s belief that the offender will cause physical harm to the person or property of the other person, the other person’s unborn, or a member of the other person’s immediate family, the other person’s belief may be based on words or conduct of the offender that are directed at or identify a corporation, association, or other organization that employs the other person or to which the other person belongs.
(B) Whoever violates this section is guilty of menacing. Except as otherwise provided in this division, menacing is a misdemeanor of the fourth degree. If the victim of the offense is an officer or employee of a public children services agency or a private child placing agency and the offense relates to the officer’s or employee’s performance or anticipated performance of official responsibilities or duties, menacing is a misdemeanor of the first degree or, if the offender previously has been convicted of or pleaded guilty to an offense of violence, the victim of that prior offense was an officer or employee of a public children services agency or private child placing agency, and that prior offense related to the officer’s or employee’s performance or anticipated performance of official responsibilities or duties, a felony of the fourth degree.
Note that the language is very similar: “knowing cause another to believe that the offender will cause physical harm to the person or property of the other person.”
Having your gun in hand when not being directly faced with a threat would cause a reasonable person to believe that you are the threat.
Now, the specific law, Ohio Revised Code 2929.14:
(ii) A prison term of three years if the specification is of the type described in division (A) of section 2941.145 of the Revised Code that charges the offender with having a firearm on or about the offender’s person or under the offender’s control while committing the offense and displaying the firearm, brandishing the firearm, indicating that the offender possessed the firearm, or using it to facilitate the offense;
What this says is basically if you commit a crime and brandish a firearm during that crime, no matter what the original crime is, you will serve a mandatory minimum of three years.
Now, I discussed Ohio’s laws with my good friend Ross Elder. He is not a lawyer, so he admits his opinion is not to be taken as gospel.
Having said that, his opinion is that while one may be ticketed for just carrying the weapon at their side, it may or may not hold up in court. However, if you brandish in the presence of a peace officer and refuse to comply with directives, or you brandish in the commission of a crime, or point it at somebody, you will definitely be charged and the charges will more than likely stick.
He and I are in agreement that the smart thing to do, if you elect to open carry, is to wear it in a sturdy holster and keep it holstered unless you have to use it. Then again, he and I are also in agreement that it’s better to conceal carry than it is to open carry.
Let’s look at Louisiana’s laws regarding the issue.
According to Louisiana Revised Statutes, Title 40, Section 1382:
§1382. Negligent carrying of a concealed handgun
A. Negligent carrying of a concealed handgun is the intentional or criminally negligent carrying by any person, whether or not authorized or licensed to carry or possess a concealed handgun, under the following circumstances:
(1) When it is foreseeable that the handgun may discharge, or when others are placed in reasonable apprehension that the handgun may discharge.
(2) When the handgun is being carried, brandished, or displayed under circumstances that create a reasonable apprehension on the part of members of the public or a law enforcement official that a crime is being committed or is about to be committed.
B. It shall be within the discretion of the law enforcement officer to issue a summons to a person accused of committing this offense in lieu of making a physical arrest. The seizure of the handgun pending resolution of the offense shall only be discretionary in the instance where the law enforcement officer issues a summons to the person accused. If the law enforcement officer makes a physical arrest of the person accused, the handgun and the person’s license to carry such handgun shall be seized.
C. Whoever commits the offense of negligent carrying of a concealed handgun shall be fined not more than five hundred dollars, or imprisoned without hard labor for not more than six months, or both. The adjudicating judge may also order the forfeiture of the handgun and may suspend or revoke any permit or license authorizing the carrying of the handgun.
So, that’s pretty clean, cut, and dry.
Let’s explore the North Carolina laws, which aren’t as clean, cut, and dry as Louisiana’s laws.
Essentially, there are two bits of law in North Carolina General Statutes that would outlaw brandishing.
The first is Chapter 4, which establishes:
All such parts of the common law as were heretofore in force and use within this State, or so much of the common law as is not destructive of, or repugnant to, or inconsistent with, the freedom and independence of this State and the form of government therein established, and which has not been otherwise provided for in whole or in part, not abrogated, repealed, or become obsolete, are hereby declared to be in full force within this State.
For those unaware with the term “common law,” it originates from England, the unwritten laws that were generally understood and accepted by society.
The second can be found in Chapter 14, Article 36A, Section 14-288.3:
The provisions of this Article are intended to supersede and extend the coverage of the common-law crimes of riot and inciting to riot. To the extent that such common-law offenses may embrace situations not covered under the provisions of this Article, however, criminal prosecutions may be brought for such crimes under the common law. All other provisions of the Article are intended to be supplementary and additional to the common law and other statutes of this State and, except as specifically indicated, shall not be construed to abrogate, abolish, or supplant other provisions of law. In particular, this Article shall not be deemed to abrogate, abolish, or supplant such common-law offenses as unlawful assembly, rout, conspiracy to commit riot or other criminal offenses, false imprisonment, and going about armed to the terror of the populace and other comparable public-nuisance offenses. (1969, c. 869, s. 1.)
The key here is “going about armed to the terror of the populace.” This is repeated in a pamphlet regarding North Carolina’s firearm laws, and has been successfully prosecuted on more than one occasion.
This is differentiated from pointing a gun at someone, which is its own statute.
BRANDISHING IS NOT OPEN CARRY
So, since we have broken down, in-depth, the laws regarding open carry and brandishing, let’s talk about why Black (Criminal) Lives Matter using this argument is incredibly ignorant.
Tamir Rice was reported as waving a realistic firearm replica and pointing it at several people. Out the gate, that would be considered menacing and disorderly conduct.
When police arrived, he attempted to retrieve the firearm replica, concealed beneath his hoodie, and draw it on peace officers. The responding officers shot him before he could draw it and killed him. The shooting was ruled justified.
Many BCLM types have argued that Tamir Rice was exercising his right to open carry in Ohio.
This is a patently stupid argument.
First off, Tamir Rice, being twelve years old, had no open carry rights. Open carry rights in Ohio are in conjunction with federal laws, which prohibit juveniles from possessing a firearm on their own.
Secondly, even if Tamir Rice did have open carry rights, that would not be a defense as the moment he decided to point the firearm replica at passers-by and law enforcement, he was in violation of a myriad of laws, both those cited above as well as intimidation, retaliation, and resisting arrest, amongst others.
Tamir Rice made the extremely stupid decision to play with a firearm replica in public and to try and draw it on law enforcement. He paid the price.
This is not lawful open carry. You want someone to be mad at, ask why his parents let him run around in public without supervision with a realistic firearm replica. I know my parents would have beat me silly if I tried some nonsense like that and survived to tell the tale.
So, how about Alton Sterling?
First off, Sterling was a felon with a violent criminal history. Out the gate, he was a prohibited possessor, both at the state and federal levels. So, he has zero 2nd Amendment rights period, much less a right to open carry.
So, no, again, not open carry.
Plus, Sterling’s pistol was concealed. So, I have no idea why anybody would try to bring up open carry in the Sterling case unless they were severely mentally deficient.
Sterling played the stupid game of trying to draw a gun on a peace officer and he won the stupid prize of being shot.
And for the grand finale, Keith Lamont Scott.
Out the gate, Scott was spotted smoking marijuana, the possession of which is illegal in North Carolina, and thus his open carry rights went out the window when he was in commission of a crime.
Then the moment he drew the firearm from his ankle holster, he was in violation of North Carolina common law for being armed to the terror of the populace. His repeated refusal to drop the weapon when ordered made him in violation of resisting officers.
Bottom line: Not. Open. Carry.
As it is blatantly clear, there is zero ground to attempt to defend the actions of criminals by saying, “But it was open carry!”
Not a single martyr of the Black (Criminal) Lives Matter movement has actually been legally open carrying when they were shot.
To make this argument is, in and of itself, an admission that the one making the argument is ignorant as to what they are discussing and are grasping for any excuse to paint law enforcement as racist and anybody black as automatically innocent, regardless of what they have done.
Of course, I suspect BCLM will be too busy planning their next roadblock protest or riot to actually read the facts contained in this article and digest them, but I’ve done my part in digging up the facts, organizing them, and presenting them.
We can lead the horses to water but we cannot make them drink.
Special thanks to Ross Elder, Allison B., Crystal P., and Jonathan S. for their invaluable contributions to the research of this article.
Featured image courtesy of The Truth About Guns.