Thursday, May 29, 2014

Armed To the Terror of the People: Where Do We Draw Lines?

How does he eat?
In my previous blog on gun control, I laid out why 'sensible gun control' won't happen, and made clear why there is currently no common ground even between reasonable gun control advocates and reasonable gun-rights supporters. Turn-about is fair play: in this blog, I talk about the traditional limits of open carry and get into some of the nuts and bolts of the controversy between concealed-carry and open-carry which controversy also hurts any chances of reasonable agreement on the Right To Keep and Bear Arms. The reader may quickly realize that I am writing this in the context of the present actions by a Texas Open-Carry advocacy group in carrying rifles into restaurants. The demonstrators' behavior  resulted in some of these restaurants changing their policy against open-carry and has created a bit of a backlash even from gun-rights supporters.

In Which We Explore Common Law Offenses Against the Peace

Before anyone 'jumps the gun' I am not opposed to open-carry, against open-carry in restaurants (with permission of the owner), or against open-carry advocacy in general, but there are recognized (within a good bit of room for interpretation) traditional limits to open-carry and I am going to probe at where those limits may be. By 'traditional limits' I mean that stated in the Statute of Northampton of 1328 (2 Edw. 3, c. 3 (1328)) which expounds a common law crime going back to antiquity:
Item, it is enacted, that no man great nor small, of what condition soever he be, except the king's servants in his presence, and his ministers in executing of the king's precepts, or of their office, and such as be in their company assisting them, and also [upon a cry made for arms to keep the peace, and the same in such places where such acts happen,] be so hardy to come before the King's justices, or other of the King's ministers doing their office, with force and arms, nor bring no force in affray of the peace, nor to go nor ride armed by night nor by day, in fairs, markets, nor in the presence of the justices or other ministers, nor in no part elsewhere, upon pain to forfeit their armour to the King, and their bodies to prison at the King's pleasure. And that the King's justices in their presence, sheriffs, and other ministers in their bailiwicks, lords of franchises, and their bailiffs in the same, and mayors and bailiffs of cities and boroughs, within the same cities and boroughs, and borough-holders, constables, and wardens of the peace within their wards, shall have power to execute this act. And that the justices assigned, at their coming down into the country, shall have power to enquire how such officers and lords have exercised their offices in this case, and to punish them whom they find that have not done that which pertained to their office.
Or, as later expounded by the Elizabethan lawyer, Lambarde:
Yet may an affray be without worde or blow given as if a man shall sh[o]w himself furnished with armour or weapon, which is not usually worne and borne, it will strike a feare to others that be not armed as he is: and therefore both the Statute of Northampton . . . made against the wearing of Armour and weapon and the Writte thereupon grounded, doe speake of it, by the words, effrey del pays, an, in terrorem populi.
Obviously we do not have a king in today's United States, our king's officers do not enjoy the exclusive authority they did in 1328, and even under English common law, the Statute of Northampton was interpreted by the courts so as to blunt it's edge, but this historical statute supported a common premise which is still upheld today: armed gangs roaming the countryside terrorizing people are bad. The words "in affray of peace" and the Latin "in terrorem populi" (to the fear of the people) is still referred to in modern law. Less obvious, perhaps, is the connection to Missouri's RsMO 570.030.2(1) providing a blanket exemption to Chapter 570's weapons offenses to:
"...any person summoned by such officers to assist in making arrests or preserving the peace while actually engaged in assisting such officer..."
which is, incidentally, one of the legal underpinnings for armed law enforcement auxiliaries (local 'select militia' or volunteer constabularies) in Missouri. There is no problem with people arraying themselves for battle when battle is actually afoot or when the 'hue and cry' goes up of a crime actually being committed, but there is a point where armed groups legitimately cause fear and are a detriment to public order.

In most jurisdictions, armed to the fear of the people is a common law or statutory offense. In North Carolina, for instance, the common-law crime contains the following elements (Note to the 7th Edition of "North Carolina Crimes"):
A person guilty of this offense
(1)  arms himself or herself with an unusual and dangerous weapon
(2)  for the purpose of terrifying others and
(3)  goes about on public highways
(4)  in a manner to cause terror to the people.

Is Carrying a Firearm Itself an Affray of Peace?

Note the limitation in State vs. Robert S. Huntley that "a man may carry a gun for any lawful purpose of business or amusement, but he cannot go about with that or any other dangerous weapon, to terrify and alarm, and in such manner as naturally will terrify and alarm a peaceful people," (25 N.C. (3 Ired.) 418, 40 Am. Dec. 416 (1843)). The offense is not the mere carrying of arms but doing so in alarming fashion for the purpose of terrifying others. This limitation against the Going Armed To the Terror of the People (GATTOP) offense is typical and also goes back to British common law as noted in William Hawkins' "Treatise of the Pleas of the Crown", 8th Edition, Vol. I, 1824, London, pp 489 (first published in 1716):
That no wearing of arms is within the meaning of the statute unless it be accompanied by such circumstances as are apt to terrify the people; from whence it seems clearly to follow, that persons of quality are of no danger of offending against this statute by wearing common weapons, or of having their usual number of attendants with them for ornament or defense, in such places, and upon such occasions in which it is the common fashion to make use of them, without causing the least suspicion of an intention to commit any act of violence or disturbance of the peace. And from the same ground it follows, that a person armed with privy coats of mail, to the intent to defend themselves against their adversaries, are not within the meaning of this statute because they do nothing in terrorem populi.
The Hawkins quote, commenting on Rex v. Knight (1686) highlights the common debate about whether GATTOP must include unusual weapons or merely unusual circumstances. For example, one might argue that a double-barrel shotgun is an extremely common weapon but it is not common to carry one to a play and may be apt to terrify. Huntly rejected the argument that the commonality of shotguns was itself a defense but still held that merely carrying was not offensive. Rex v. Gardner (1739) also held that for farmers, firearms were as much a necessity as cabbage-nets for defending stock or eliminating vermin and not offensive, despite statutes (hunting laws, for instance), directly prohibiting commoners from having firearms.

Part of the matter is the tie to intent. As above, an intent to defend oneself and not to terrify is a distinguishing factor, but also an astonishingly subjective one, particularly in a culture deeply divided over the role of firearms. What is apt to terrify an average resident of New York City versus of rural Missouri are very different and so therefore is what the mythical 'reasonable person' would expect to terrify another. For that matter, GATTOP offenses were misused during the Jim Crow era to discriminate against armed Negroes: while a Klansman may be terrified by a black person with a gun, it hardly constitutes a crime to so terrify. A Klansman with a gun may be a legitimate source of terror, but this is tied to the likely intent to intimidate or commit mayhem rather than the firearm itself. Finally note that Hawkins defends the wearing of arms for ornamentation, not merely defense.

In Missouri (where I live), "to the terror of the people" was previously in the statutory definition of a riot but was removed, leaving it necessary to actually commit or intend to commit unlawful acts. Specifically excluded are training for hunting, self-defense, or civil defense for legitimate law enforcement-related activities (including organized militia). Compare the wording of modern RsMO 574 (and 574.050.1 in particular) versus historical Chapter 47 (quoted in "A treatise on the law of evidence, Volume 3", by Simon Greenleaf, 1899, pp 213).

[EMV 2019-08-9: RsMO 574.115, effective 1 Jan 2017, defines the crime of "Making a terrorist threat, 1st degree" which now covers some of the same ground and was the basis for charging an individual with a rifle who caused a panic at a Springfield, MO Walmart earlier today. This law would seem to raise exactly the same issues (pro and con) discussed here. (Thank you, Cory Mignard.)]

[EMV 2019-08-10: The DA actually chose to charge the individual at Walmart under RsMO 574.120, "Making a terrorist threat, 2nd degree" which only requires proving reckless, not criminal intent.]

It is probably worth highlighting the 'persons of quality' distinction in Hawkins which is (or should be) of no relevance today. We no more have gentry and grants of arms today than we do kings, but we do unfortunately still have a prejudice against poor people with firearms while we rarely respond to the rich or public figures with armed retainers in tow. For that matter, as some have rightly pointed out, this "Moms Demand Action For Gun Sense In America" often travels with armed security as well, so both sides in the present debate are on equal footing as regards the use and presence of firearms. The question comes down to one of intent and degree, which are not always easy to determine.

Ironically, GATTOP is an offense which lends itself to misuse in order to intimidate and terrify people who carry arms, one of the issues open-carry advocates raise and with some truth. Through intent or ignorance, police in some jurisdictions routinely misuse GATTOP or close variants to arrest or merely detain and intimidate citizens lawfully carrying and who are otherwise guilty of no offensive conduct. This fact does not mean, however, that the offense itself does not exist or that there is not a reasonable line somewhere which possessors of firearms sometimes cross.

Which Brings Us Back To Current Events

So, given that history, what of a group of open-carry advocates carrying semi-automatic rifles into a restaurant as part of a protest? What of the specific issue that they did so to a meeting of this "Mom's Demand Action" group? What is their precise intent? Is their conduct an offense in the legal sense? [I am not referring to the open-carry group by name because the Texas Open Carry group disavowed their conduct, so they are a subset, not representative of a larger organization.]

First, let us dispose of the private property issue and the rights of the restaurant owners. When the open-carry group first entered the restaurants, the owners had not prohibited them and the restaurant policies either allowed or were explicitly silent on the issue. The law universally supports the right of an owner or their representative to 'trespass out' patrons causing a disturbance. The law almost universally supports the right of the restaurant or other business to forbid firearms in the first place. Nevada law makes 'no carry' policies of no legal effect, though the owner can still trespass out individuals, and some states, notably Missouri, forbid business owners from banning lawful firearms from vehicles parked on the premises. For the most part, I morally support the business owner's right to post a carry policy, regardless of local law, even when I disagree with the policy: my option is to take my business elsewhere, which I often do.

So, that part of the issue is or should be a non-issue. My question is whether the conduct generally constitutes a public offense and is (or should be) generally unlawful in public. I am also going to dispose of the issue of whether what the open-carry group did is of generally poor taste: I believe that it is, at least in the specific fashion displayed, but people do have a right to act in poor taste, sometimes suffering social consequences (being banned from a restaurant in this case). I disagree with their conduct, but that is a different question from whether it was legally or morally wrong. I am unable to find a clear statement of Texas case law on GATTOP as I did for North Carolina (where I once lived and researched previously), but I am really much more interested in the general question than the minutia of local interpretation at the moment. [Update 20161215: Texas Penal Code 42.01 defines the offense of Disorderly Conduct. Among the offenses, "A person commits an offense if he intentionally or knowingly: ..." (8) displays a firearm or other deadly weapon in a public place in a manner calculated to alarm;" ]

Do you take gold?
If we consider the demonstrators' lawful business to be eating in a restaurant, where they simply happen to be carrying rifles, then it is hard to justify a GATTOP accusation. Even if this seems far-fetched to some, consider the fact that my wife and I met on a field of battle with a medieval reenactment group and we often would go with a group to a restaurant after an event or need to purchase items during an event with some number of us still armed and armored. The looks someone gets when checking out at Wal-Mart dressed as a 10th century viking with a bottle of Gatorade and a roll of duct-tape are priceless, but hardly rise to the level of riotous acts. As officers in our Sheriff's Auxiliary, we also end up at restaurants as a group when going off duty after a deployment or exercise, with the lot of us open-carrying (likely to be in uniform but if not on active-duty, not under the protection of RsMO 570.030). So, unusual business, perhaps, but not riotously so in and of itself. To some extent, being in public in either of these cases is advertising for our activities, but not a primary purpose, and advertising is not an intent to incite terror, pretty much by definition.

But it seems to be hard to claim that this specific group 'just happened' to organize an event specifically to display firearms at the restaurant for the purpose of protest and, from their behavior toward the gun-control-advocates, that part of their intent was not directly intimidation. Even viewed very permissively and from the point-of-view of a strong RTKBA-supporter, it would be very difficult to defend the conduct. At the very least, it would seem imminently reasonable for authorities to question the behavior, perhaps detain and charge, letting a jury sort it out. Certainly the behavior is an entirely different league from the odd individual with a handgun in an open-carry holster being harassed by law enforcement in Wal-Mart (national corporate policy allows open-carry where otherwise legal) or a street corner in locations where open-carry is protected by law[I discuss the issue of open carry and race elsewhere, in a guest blog].

The response of the business owners also supports this conclusion. The chains in question have scrupulously avoided the debate over firearms over the years. Firearm owners will avoid businesses which are not firearm-friendly and word gets around quickly, concealed-carry patrons often taking their business elsewhere when open-carry patrons are offended (concealed carriers are often standing there, unmarked, while open-carriers are being harassed). This creates a strong incentive for the businesses to take no position and to allow conduct permissible in their jurisdictions. The owners of the various chains involved have made direct statements that the only reason they have considered policy changes is because the incidents have left them with no choice, turning their establishments into circuses and political battlegrounds incompatible with their basic function to serve customers. Videos of some of the incidents show no screaming children, no patrons running in fear, and no one cowering under the tables, so it may be argued that 'terror' is too strong a term for the result, but again, it is difficult to argue that intimidation did not occur and was not intended by the demonstrations.

The unfortunate result of the changes in policy is that these businesses will lose customers. Whatever the reason for the change, when I see a "No Carry" sign, I will go somewhere else. But the businesses are in a position where that will happen either way and it is clearly the result of the demonstrator's conduct and that is a problem. The conduct is also to the detriment of RTKBA advocates across the board as it allows gun-control advocates to label every gun-owner as obnoxious, armed--- dangerous--- loonies.

Broader Policy Questions--- National Irrationality Muddies Waters

Once you get away from the conduct in these incidents, however, and start to approach questions about general policy, the mud very quickly rises. One of the reasons for this is that open-carry demonstrators do have a valid point hiding in the murk: public policy and public advocacy vis a vis open and concealed carry often makes no sense at all. Many jurisdictions (e.g. Florida, California, Illinois, New York) place limits on open-carry on the theory that open-carry indicates a purpose to intimidate and engage in unlawful behavior. Other jurisdictions place limits on concealed-carry on the theory that it indicates criminal behavior and an intent to ambush unsuspecting citizens. Often enough, these are the same jurisdictions. Gun-control advocacy groups (e.g. Bloomberg's various fronts) often try to argue simultaneously that they are not against lawful carry, that open-carry is bad and should be unlawful, and that concealed-carry is bad and should be unlawful. Then they argue that handguns are criminally dangerous and should be outlawed but open-carry of long-arms is directly equated with terrorism. This conundrum lead to Heller, McDonald, and the 9th Circuit's Peruta decision: yes, firearms may be regulated to an extent, but you cannot leave the average citizen with no reasonable path to comply with the law and still exercise their rights.

Missouri's Constitution at least makes the limits clear (Article I, Section 23):
That the right of every citizen to keep and bear arms in defense of his home, person and property, or when lawfully summoned in aid of the civil power, shall not be questioned; but this shall not justify the wearing of concealed weapons.[EMV 2014-11-5: SJR 36, adopted on 5 August 2014, amended this section.]
If you want to carry without a license, it has to be visible, but the state has the authority to enact licensing for concealed-carry. Fine. Nevertheless, municipalities still try to outlaw open-carry in a Constitutional-mess-waiting-to-happen.

Many gun owners with concealed-carry permits first hit the open-carry contradiction when traveling to a state where their CCW is not honored. I go into this issue in some detail in a 3-part Open Carry Travelogue from our trip to Nevada to speak at an emergency-manager's conference. It is simply not rational to have a law requiring someone to have a firearm clearly visible and then treat complying with the law as an affront to the peace. The vagaries of open-carry law and the inconsistency of enforcement causes many open-carriers to adopt very visible holsters or otherwise hang a flashing neon sign off of the fact that they are carrying as this is the only conduct which the courts consistently interpret as "not concealed". By doing so, however, they immediately attract unwelcome attention by both anti-gun citizens and law enforcement.

As long as this conundrum remains, open-carry advocates will work to continue to carve out a more-defined space for them to comply with the law and to convince businesses to accept their conduct. The need for that advocacy directly leads to the extremes of the movement doing ill-considered things and also develops a fair portion of the anger directed at the Bloomberg fronts working to circumscribe the practice still further. This does not make the conduct of the Texas protesters acceptable, but it does explain a bit better why it occurs. The extremes of the open-carry advocacy carrying guns in a way calculated to intimidate is wrong and a problem, but no more a problem than the jurisdictions where police with guns overstep the law to carry out their own advocacy: St. Louis, Missouri or Marshfield, Missouri cops harassing open-carry citizens, for instance, or Illinois, New York, New Jersey cops flagrantly violating federal Peaceable Journey protections allowing transport of a properly-secured firearm from point A to point B where it is legal in both places.

So what is the solution? Compliance with the law should never be a complicated affair. The problem is not that we do not have enough gun-laws but that the ones we have are often senseless. Senseless laws do not encourage respect for the law in gun owners, the law-abiding are punished, and the real criminals can exploit technicalities. In the US where the RTKBA is an enumerated right not just in the US as a whole but in most state constitutions, we need to come to some general consensus on what the rules are and make them clear. National concealed-carry reciprocity would solve some of the issue by removing the need for concealed-carriers to resort to open-carry on travel. We recognize drivers' licenses across state lines in accordance with Article IV protections, why not carry permits? Better consistency in recognizing minor state officials and emergency responders from other states who may carry on travel would also help. But the best solution is to resolve our national schizophrenia over the concealed/open divide. Doing that would deflate the entire issue. More than that, clear law would make it easier to decide what behavior actually crosses the line and deal with it in a rational and just manner.

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