911 MWAG call == RAS/PC here in WA? A not-so-hypothetical case.

[Knowledge]

Agreed

 

[LkWd_Don]

Notice the way 18 USC 922 (q) is written:

http://www.law.cornell.edu/uscode/text/18/922
The crime itself is possessing a firearm in a school zone, period. That's it. Then EXCEPTIONS to that crime follow. The only thing a LEO needs to see for RAS of the crime is a firearm possessed in a school zone.

Contrast this to the way RCW 9.41.050 is written:

See the difference? The crime in 18 USC 922 (q) occurs anytime a firearm is possessed in a school zone, then there are exceptions. In RCW, the crime of concealing the firearm only occurs if the person does not have a CPL. Then there are exceptions listed to carrying a concealed pistol without a license in RCW 9.41.060. Cop sees you conceal a pistol he does not automatically have RAS to believe you are violating the law, UNLESS he also has RAS that you do not possess a license, like he recognizes you as a convicted felon.

Now, RCW 9.41.280 possessing a firearm on school property is very similar to 18 USC 922 (q) except that the RCW only applies on school premises, there is no 1000' rule. So, cop sees you open carrying on school premises, inside the fence, you are violating RCW 9.41.280 and the cop automatically has RAS to believe you are if he sees your gun. He can detain you long enough to determine that you fall under the EXCEPTION to RCW 9.41.280 of having a CPL and picking up or dropping off a student.

Question.. With how RCW 9.41.290 State preemption reads and since RCW 9.41.280 does not list a crime as being committed unless you are physically on school grounds with a Firearm without a CPL, what PC or RAS does any State or local LEO have to detain you off school grounds for that carry? http://apps.leg.wa.gov/RCW/default.aspx?cite=9.41.290

From what I am seeing, if the LEO did not have personal knowledge that I or anyone else was ineligible to possess a CPL in the first place, he/she would have no grounds to stop and question or to detain me/them. Even then, if someone gives their full name, date/place of birth and present city of residence they will have all the ID they need as they have access with that to all Washington State DL and CPL records and if I am carrying openly, then there is no crime (under RCW) requiring the CPL. How would you read this when adding in RCW 9.41.290?

 

[LkWd_Don]

RCW 9.41.290 really has nothing to do with it, unless the LEO in question is attempting to enforce an illegal ordinance put in place by a municipal government. The ability of a LEO to stop and detain you for only possessing a firearm off of school grounds depends entirely upon the location you are carrying the firearm. A local LEO, with RAS that you are violating a Federal law can detain you for a reasonable amount of time for a Federal LEO to arrive. Within 1000' of school premesis, possession of a firearm violates 18 USC 922. Possession of a firearm on Post Office property violates 39 CFR 232.1. Possession of a firearm in a Federal facility violates 18 USC 930. None of those laws are preempted by RCW 9.41.290 because they were enacted by the Federal government. In any of those locations, the mere possession of a firearm provides RAS of the crime of unlawful possession of a firearm being committed. Local LEO can detain you having reasonable suspicion that a crime is being committed until Federal authorities arrive. Federal authorities will then determine if there is probable cause for an arrest to be made.

There are two entirely different standards for detention with reasonable suspicion that a crime is being committed and probable cause to make an arrest or obtain a search warrant.

Interesting. RCW 9.41.290 can not preempt Federal Law but RCW 9.41.280 effectively prevents LEO's from directly enforcing a Federal statute "18 USC 992" based upon the fact that RCW 9.41.290 preempts all firearm laws within the boundaries of the State of Washington. I will have to consider that and how the 10A effects this as I get my mind around that one.

 

[Schlepnier]

Would now be a good time to point out that the US supreme court struck down the federal gun free school zone law as an unconstitutional abuse of the commerce clause as it is not commerce but criminal prosection? the court put the authority to enforce the gun laws back into the hand of the states.

As such the direction of this entire topic is not even valid....just sayin
:banana:

 

[sudden valley gunner]

My understanding is the revised GFZ law hasn't been challenged by SCOTUS. Although some lower courts have ruled it constitutional.

It is an unconstitutional law just like most laws from the feds, that don't fall under their enumerated authority.

 

[amlevin]

It is an unconstitutional law just like most laws from the feds, that don't fall under their enumerated authority.

Now all you need to do is get the Supreme Court to agree with you. Good Luck.

 

[LkWd_Don]

My understanding is the revised GFZ law hasn't been challenged by SCOTUS. Although some lower courts have ruled it constitutional.

It is an unconstitutional law just like most laws from the feds, that don't fall under their enumerated authority.

I do agree, this is another clear example of the Federal Government overstepping their Article 1 Section 8 powers through the use of laws that rightfully belong in the category of being reserved to the States under the 10A and either infringe upon, limit or deny our 2A rights. Though when discussing something I feel should be found Unconstitutional, until a State Supreme Court or the SCOTUS rules it so, I prefer to use Anti-Constitutional to separate it from what has been shown to be unconstitutional.

 

[LkWd_Don]

Now all you need to do is get the Supreme Court to agree with you. Good Luck.

Very true, especially with our SCOTUS using the principle of someone has to have been injured by a law before they will consider ruling on it. Meaning you will have to have been charged with or in accordance with and either lost property/possessions (or the use of) or were penalized in some form due to the law you are claiming is not constitutional. This is why many anti-constitutional laws never get struck down as they create a limit of your rights that due to how they were written prevent you from obtaining a possession so you in reality you are not losing or having something taken away, making it a law that will never make it to the SCOTUS.

 

[oneeyeross]

Of course, the OP's situation was one that HE was experiencing...and like ALL interactions with police officers, the first rule should be "survive the interaction." Not that I think all cops are trigger happy shoot on sight types, but one never knows which one is a "Birk." While "going with the flow" is seen as "giving in", sometimes, just sometimes, it might be the smarter thing to do...

Sure, I know, it just gives cops the feeling that they are superior, yada yada yada...but in any instance where there is an armed cop around, going home is a great idea....

Just my $0.02....

 

[aadvark]

To Whomever it may Concern:

State Authorities have NO Authority to Detain or Arrest a Person for Violating Federal Law.

Likewise..., a Federal Authority need NOT Detain or Arrest a Person for Violating State Law.

State Law and Federal Law are: 'Two Different Animals', if You will.

However, ANY Carry within 1000 Linear Feet of a Public School Designated for The Education of Children should be done so under The Realm of Exceptions Listed under 18 U.S.C. 922(q)(2)(B)(i) through 18 U.S.C. 922(q)(2)(B)(vi).

 

[hermannr]

While having a weapon in a federal GFZ may seem like prima facia evidence of a crime, if it was so, then so would any OC if you were a prohibited person....

I would be of the opinion that having an OC pistol at a local store that just happened to be within 1000' of a school is not enough evidence to require you to produce your CPL, for exactly the same reason that OC of a weapon by any person is not enough reason for a police officer to stop and ID you in WA. After all by OCing you have displayed you do have a weapon and...IT MAY be that you have a restraining order, a warrent out, are a convicted felon...doesn't fly, sorry. They need more than OC to detain you legally and demand your CPL.

 

[hermannr]

OMG. Really? Let's try to break this down in simple terms:



After all, by OCing you have displayed the you do have a weapon....AND if you are standing on public property within 1000' of a school you have also displayed that you meet the ONLY other element required to be in violation of the Federal statute. Entirely different circumstance than the officer having to guess whether or not you are a prohibited person.

Not really. You are making an assumption I do not have a CPL, the officer would also have to make that assumption. If you are sitting in teh drivers seat of a car that is parked on a public street but you don't have your seat belt on, does that officer have the right to request to see you drivers license? I think not.

 

[1245A Defender]

well,,,

Again, no. What are the elements that must be met to be in violation of the law? Only two:



That's it. Only those two elements. It's pretty easy for a police officer to obtain RAS that those two elements are met to violate the law. After the officer obtains RAS that all of the elements have been met that you are violating the law, it is then up to you to prove to the satisfaction of the officer, the prosecuting attorney, or the judge/jury that you fall under an exception to violating the law.

All I am saying is that if an officer (local, state, or Federal) approaches me in a public place in a Federal defined school zone because he sees my gun and wants to see my CPL, I am showing it to him. And I would recommend that everyone else does as well. I am not going to trust that the officer does not have jurisdiction or that he also needs RAS to believe that I don't have a CPL to be my defense.

that has moved in or that otherwise affects interstate or foreign commerce

you forget that their three elements to meet...
how is the cop gonna make this assumption.

 

[sudden valley gunner]

that has moved in or that otherwise affects interstate or foreign commerce

you forget that their three elements to meet...
how is the cop gonna make this assumption.

Their ridiculous reasoning was that because most guns travel across state lines before you buy them and possess them. (My gun came from Austria) It is retarded, and unconstitutional. It is something both democrats and republicans are afraid to touch though because so much of what the Feds do now are unconstitutional and simply "rationalized" with the so called commerce clause or general welfare clause. The statist from the Republican party are just as guilty as the statist in the democratic party hence why the challenge hasn't risen to SCOTUS in my belief.

 

[Schlepnier]

And Congress then re-enacted an amended GFSZ law in a way that the US Supreme Court said WAS valid. Just sayin....

I should also point out the re-enacted law says that CPL holders are exempt from the GFSZ law. as such a LEO would have to have some RAS(foreknowledge) that you were not a CPL holder before he could legally stop you, thus invoking terry VS ohio.

 

[223to45]

I should also point out the re-enacted law says that CPL holders are exempt from the GFSZ law. as such a LEO would have to have some RAS(foreknowledge) that you were not a CPL holder before he could legally stop you, thus invoking terry VS ohio.

You haven't been paying attention have you??

 

[hermannr]

Well now, lets see, we are working on 8 years over here now....."the Junction" (gas station/convience store) is (quite a bit) less than 1000' from the Tonasket schools. I have never been bothered when I fill up with gas there while OC...while I'll stand by my statement that it takes more than just OC to constitute "RAS" (no crime obviously being committed), the practicality of the matter is...at least in Okanogan County...it ain't going to happen.

 

[Vitaeus]

Well now, lets see, we are working on 8 years over here now....."the Junction" (gas station/convience store) is (quite a bit) less than 1000' from the Tonasket schools. I have never been bothered when I fill up with gas there while OC...while I'll stand by my statement that it takes more than just OC to constitute "RAS" (no crime obviously being committed), the practicality of the matter is...at least in Okanogan County...it ain't going to happen.

agreed to the likelihood of the stop, but you are talking about being on private property while OC, the Federal issue is being on public land (sidewalk, etc.) which is illegal pending exemptions. OC in general is legal with exceptions in the RCWs.

 

[amlevin]

the officer cannot see that you are exempt from the Federal GFSZ law unless he has x-ray vision and can see your CPL in your pocket or you show it to him.

Of course he could always wear one of these

 

[Grapeshot]

Of course he could always wear one of these

Isn't the "gold" badge for supervisors only?