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newbie to open carry!

JonStore

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One more question lol as I forgot to mention at first. Now I know that when on my property I am able to have my firearm concealed, now if Im at a family members house does that still apply?

C.R.S. 18-12-105 (2014)


...(2) It shall not be an offense if the defendant was:

(a) A person in his or her own dwelling or place of business or on property owned or under his or her control at the time of the act of carrying; or

(b) A person in a private automobile or other private means of conveyance who carries a weapon for lawful protection of such person's or another's person or property while traveling; or



This is tricky.
 

ps1996

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C.R.S. 18-12-105 (2014)


...(2) It shall not be an offense if the defendant was:

(a) A person in his or her own dwelling or place of business or on property owned or under his or her control at the time of the act of carrying; or

(b) A person in a private automobile or other private means of conveyance who carries a weapon for lawful protection of such person's or another's person or property while traveling; or



This is tricky.
Yes this is unfortunately... hmm
 

Grapeshot

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You're on private property. So it's up to the property owner to give or deny permission.

Do you have a cite delineating that another property owner can give you legal permission to conceal on their property? That is to say property not under your direct control either as the owner or principal lessor.
 

JonStore

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Do you have a cite delineating that another property owner can give you legal permission to conceal on their property? That is to say property not under your direct control either as the owner or principal lessor.

I don't think he will have one. I looked for relevant case law and other areas of state and local law. It appears to read as if:

I were to go over to your house and I did not have lawful control over your property... I would require a permit to conceal. You giving me permission is not an affirmative defense. You might be wondering, that someone can do whatever they want on their own property. This is not true in statutory cases where government interest is considered weighty. For example, I can not give you permission to smoke crack or be cruel to animals (animals are considered chattel) on my land, just because it is my land. The statute prohibits both cases, even on private land.

There might be some interesting ways around that however. If you were to give me temporary control, or shared control, then someone might say that would be a defense.... but I don't see it tested in court.

This is not legal advice. This is an unqualified opinion.
 
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JamesB

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You're on private property. So it's up to the property owner to give or deny permission.

Really, it just is that simple.

According to the statute, if it is property under your control, then it's not a crime. Basically because then you are the one that gets to say. But if you are not THE one in control, then it lies on the owner/ lessee/ one IN control of the property to be the one who decides.

As an example, a wealthy businessman wishes to have armed security staff, but does not wish to alarm the public who regularly frequent his building, let alone his clientele. So he tells his security staff that they may carry concealed. He may even make it a requirement for the position. The point being, if they do so only on said private property and with the property owners permission, it's all good.
 

JamesB

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...For example, I can not give you permission to smoke crack or be cruel to animals (animals are considered chattel) on my land, just because it is my land...

There might be some interesting ways around that however. If you were to give me temporary control, or shared control, then someone might say that would be a defense.... but I don't see it tested in court.

This is not legal advice. This is an unqualified opinion.

In both of the cases presented as examples, there is not a legal way or means or time etc. to perform the actions regardless of private property interest or ownership.
I suggest they are not very good examples for the conversation. (not to disparage the conversation, I'm working on a better example in my head as I type. Haven't found it yet.)
 

JamesB

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I'm thinking it's kind of like registering a vehicle. If it's a farm truck and never leaves the farm/ private property it does not need to be registered, since it does not travel on public highways or right of ways. Even my former commuting truck can sit in the driveway with expired tags for eternity (as long as it does not become an eyesore and nuisance). The second it parks in front of the house, it's eligible for ticketing, booting, and or towing.

In this example, it would be the same if my truck were to be parked in my father's driveway, so long as it was there with his permission. Without permission, it could still be towed away because it was against the wishes of the property owner.

Better? Maybe?
 
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JonStore

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Really, it just is that simple.

According to the statute, if it is property under your control, then it's not a crime. Basically because then you are the one that gets to say. But if you are not THE one in control, then it lies on the owner/ lessee/ one IN control of the property to be the one who decides.

As an example, a wealthy businessman wishes to have armed security staff, but does not wish to alarm the public who regularly frequent his building, let alone his clientele. So he tells his security staff that they may carry concealed. He may even make it a requirement for the position. The point being, if they do so only on said private property and with the property owners permission, it's all good.

With this example, the security guards are exercising control over the property. That control was delegated by the owner, so yes... the statue would permit them to conceal with no permit. But the guards, are in control. The example does not address those who are invitees but do not control the property.
 

JonStore

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In both of the cases presented as examples, there is not a legal way or means or time etc. to perform the actions regardless of private property interest or ownership.
I suggest they are not very good examples for the conversation. (not to disparage the conversation, I'm working on a better example in my head as I type. Haven't found it yet.)

The examples were not designed to illustrate that, the control of property. These examples were designed to illustrate the ability of law to extend inside private land. Yes, they are extreme, but it does what it says on the tin.
 
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JonStore

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I'm thinking it's kind of like registering a vehicle. If it's a farm truck and never leaves the farm/ private property it does not need to be registered, since it does not travel on public highways or right of ways. Even my former commuting truck can sit in the driveway with expired tags for eternity (as long as it does not become an eyesore and nuisance). The second it parks in front of the house, it's eligible for ticketing, booting, and or towing.

In this example, it would be the same if my truck were to be parked in my father's driveway, so long as it was there with his permission. Without permission, it could still be towed away because it was against the wishes of the property owner.

Better? Maybe?

These examples do not work at all. The vehicle registration is a revenue based statute. It applies on public roads.

Now, without permission, the vehicle could be towed... but this is a principle of trespass. There are three types, and one would potentially run afoul of two. If the vehicle is parked on private land, at all times it would be trespass to land. Now if it were parked in the drive, it would be land and trespass to chattels. The owner could tow... however, if the owner of the vehicle is an invitee this could give rise to civil tort. I can not draw a parallel.

In all you examples, it appears those examples you give as well as your opinion seek to widen or add definition to the statute that is certainly not there. Better examples would be case law. It is case law that adds to, or further interprets statutes.
 

mobiushky

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I don't think he will have one. I looked for relevant case law and other areas of state and local law. It appears to read as if:

I were to go over to your house and I did not have lawful control over your property... I would require a permit to conceal. You giving me permission is not an affirmative defense. You might be wondering, that someone can do whatever they want on their own property. This is not true in statutory cases where government interest is considered weighty. For example, I can not give you permission to smoke crack or be cruel to animals (animals are considered chattel) on my land, just because it is my land. The statute prohibits both cases, even on private land.

There might be some interesting ways around that however. If you were to give me temporary control, or shared control, then someone might say that would be a defense.... but I don't see it tested in court.

This is not legal advice. This is an unqualified opinion.

Let's be honest, why would it ever be tested? If I go to my fathers land and my father tells me it's ok to concealed carry on his land, why would there ever be a legal conflict that would go to court for the position to be tested? Assuming it's an amicable relationship, which it would have to be for my father to allow me to carry a concealed weapon in his presence. If it's not, why would he allow it? You follow me?

But this is a different situation from the animal abuse or even crack. There are so many levels of difference it's tough to settle on one or even a few. At the top is the fact that you have a right to keep and bear arms. Granted the Supreme Court has clearly stated that is not an unlimited right, but it is a right. You do not have a right to abuse animals. So the analogy is not good to start. Further, the abuse of animals would be a crime that has affects that are visible or tangible. So from the standpoint of calling attention to the crime it's more likely to be noticed and therefore would have case law to follow it. You are correct that private property is not a blanket absolution against following laws. But the examples we are all using are not appropriate. Let's compare rights to rights first.

Maybe speech, since it's a closer right to 2A. I would argue that you probably don't have the right to yell fire in a theater (classic example used) if the theater owner gives you permission, but the action its self is deemed unacceptable because it results in the violation of someone else's rights. IE, I endanger peoples lives if I do that action. On the contrary, I would say that if I want to protest a business and that business doesn't want me on their property I can't be on their property. But if the business next door gives me permission to be on their own property I can. So to apply this here, imagine a law in a city which says that protesters must remain 50 feet from an abortion clinic. The assumption in the law is that the property owner does not want you on their property. But directly next door is a church and their property line is closer than 50'. I would say that if the church give permission to stand on their property, the law does not apply because the protesters have the permission of the church to be on church property.

Again, the above is all mere speculation and not based on case law mainly because it's not been tested and is not likely to ever be tested. That said, I would also challenge anyone to find a case where someone was arrested only for carrying concealed on private property where they had permission to carry concealed. I doubt that you will find even one instance. (The caveat here is that the person cannot have committed any other crime.)
 

mobiushky

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This is fascinating. Under CRS 18-12-105 there is this clarification presented from case law:

"Defendant could not be convicted of carrying a concealed weapon without the prosecution proving that defendant intended to use this short-bladed knife as a weapon. While the characteristics of an instrument may be an important factor in determining the intended purpose of an instrument, the language of the concealed weapons statute and established precedent establishes that a knife's design does not, by itself, prove that the person carrying it intended to use it as a weapon. A.P.E. v. People, 20 P.3d 1179 (Colo. 2001)."

Think about that wording. Bear in mind that the title of the statute is:

"Unlawfully carrying a concealed weapon - unlawful possession of weapons"

Not firearms, weapons. Also note that in the statute the phrasing for the prohibition on knives is the same as for firearms.

If this case was used as precedent, it would follow that the prosecution would be required to first prove that the instrument (whether knife or firearm) was intended to be used as a weapon. Now, it might be a lower bar for the firearm since the ruling says "the characteristics of an instrument may be an important factor in determining the intended purpose." But, it still follows that the prosecution would have to prove that the person intended to use the firearm as a weapon. And if no actions were taken by the defendant (ie, the only crime being tried is carrying a concealed weapon) to show malice or any other intent to commit a crime, the defendant could use permission of the property owner as well as the intent only to protect themselves as an argument that the instrument was not intended to be used as a weapon. May not win that, but it's a compelling argument.
 

Grapeshot

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--snipped--...... it still follows that the prosecution would have to prove that the person intended to use the firearm as a weapon. And if no actions were taken by the defendant (ie, the only crime being tried is carrying a concealed weapon) to show malice or any other intent to commit a crime, the defendant could use permission of the property owner as well as the intent only to protect themselves as an argument that the instrument was not intended to be used as a weapon. May not win that, but it's a compelling argument.
If "not intended to be used as a weapon" than how can it be used "to protect?" A gun is not a magic, invisble force field - it must be used or intended to be used for its designed purpose - expelling a projectile with deadly capacity.
 

mobiushky

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If "not intended to be used as a weapon" than how can it be used "to protect?" A gun is not a magic, invisble force field - it must be used or intended to be used for its designed purpose - expelling a projectile with deadly capacity.

You would have to argue intent. I did say the bar is lower for a gun based on the comments made in the case and I also said you may not win that argument. But I would guess that you would have to convince the judge or jury that the intent of the firearm was not to be used as a weapon of criminal activity. It would be up to the judge/jury to believe you or not.

Keep in mind this is an entirely hypothetical discussion because if someone is given permission to CC on private property and that person is not committing any other crimes, there is never likely to be a reason that the person would be charged with only the concealed carry of a weapon. It's just not likely to happen.
 
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Grapeshot

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You would have to argue intent. I did say the bar is lower for a gun based on the comments made in the case and I also said you may not win that argument. But I would guess that you would have to convince the judge or jury that the intent of the firearm was not to be used as a weapon of criminal activity. It would be up to the judge/jury to believe you or not.
Plus would have to be a decision in a court of record to have any value as a precedent - meaning that it would have to be initiated via appeal - guilty first then appeal.

That is a long and expensive route - would want a very strong, solid case.
 

mobiushky

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Plus would have to be a decision in a court of record to have any value as a precedent - meaning that it would have to be initiated via appeal - guilty first then appeal.

That is a long and expensive route - would want a very strong, solid case.

Well it was:

Supreme Court of Colorado,En Banc.
A.P.E., a Juvenile, Petitioner, v. The PEOPLE of the State of Colorado, Respondent.
No. 99SC392.
Decided: March 26, 2001

In the majority finding they said:

"A.P.E. contends, and the majority agrees, that when a defendant is charged with concealment of a dangerous instrument under the statute, a necessary implied element of such a charge is that the defendant intended to use the instrument as a weapon.   The majority reaches that conclusion apparently to avoid an overbroad application of the weapon definition statute that would potentially include objects with innocent purposes, in reliance upon Gross.   See 830 P.2d at 941."

That tells me that the bar is much lower for a firearm because of what you said, but that if you could convince a judge/jury that the intent was in fact innocent (plinking, sporting, father-son bonding, whatever) that there is precedent set that would protect you. Granted it would be a VERY tough argument to make.
 

JonStore

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I completely did not intend to create a hot debate. I do however enjoy academic discourse, especially with my favorite subject, law.

My primary goal here was to inform and educate without editorializing. Especially where a *newbie* is concerned; you all will find me quoting exactly the law and giving realistic black and white interpretations. Not to be pedantic, but instead to be wholly accurate.

While I will agree that you should be able to give permission to your invitees to conceal, the law is not worded that way. And while I will also agree that probably someone would never be charged in this way... the law would permit a charge. Realistically it would likely be charged as a lesser included. i.e. if you were invited, then for whatever reason a domestic happened... I could see a concealment charge also even if the homeowner gave permission. That is just the way some LEO agencies and DAs do business.

It is important to get this right the first time. For me to tell a newbie that it is up to the homeowner is inaccurate. Yes it should be. But it is not totally.

I apologize for the *way* I came across.
 

mobiushky

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I completely did not intend to create a hot debate. I do however enjoy academic discourse, especially with my favorite subject, law.

My primary goal here was to inform and educate without editorializing. Especially where a *newbie* is concerned; you all will find me quoting exactly the law and giving realistic black and white interpretations. Not to be pedantic, but instead to be wholly accurate.

While I will agree that you should be able to give permission to your invitees to conceal, the law is not worded that way. And while I will also agree that probably someone would never be charged in this way... the law would permit a charge. Realistically it would likely be charged as a lesser included. i.e. if you were invited, then for whatever reason a domestic happened... I could see a concealment charge also even if the homeowner gave permission. That is just the way some LEO agencies and DAs do business.

It is important to get this right the first time. For me to tell a newbie that it is up to the homeowner is inaccurate. Yes it should be. But it is not totally.

I apologize for the *way* I came across.

I, for my part, did not once feel you came across any way other than factual. I suppose if there was any other intent I missed it. :)

I would counter that while the law may be written in a specific way, to council a new owner by saying "that is illegal" without caveat has essentially the effect of scaring them into not pursuing a behavior which we all know will never result in danger of arrest. I know that wasn't your intent, but for someone else who isn't as technically minded regarding the law, it may scare them away from that pursuit. While it is technically correct to tell the OP that the law says he can't carry concealed at his parents house, it's not entirely right to leave the impression that the OP could face criminal charges for nothing more than that action. BTW, I'm not accusing you of doing that. I get the impression from your posts that you and I think alike and are very technical in mind. So I hope you know that I'm not accusing you of trying to scare anyone.

If there is something more involved at the house. like a domestic, the possession of a concealed firearm is likely to be the least of anyone's worries and even then the trouble would be in proving that the home owner had given permission. He said/She said. The home owner could easily claim they never gave the permission in the first place, right?
 
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