“Open Carry” (often referred to as “Constitutional Carry”) is a term used to describe the unconcealed carrying of a firearm (the operative word being “unconcealed”). This is what most on-duty police officers and armed military personnel do, but in this context it typically refers to civilians (or citizens).
Open-Carry differs from Concealed-Carry in that the firearm is carried openly, not hidden under clothing. Some states prohibit this practice entirely, others require a permit to be able to do so, while still others (including Utah and California) require that the firearm be “unloaded” while open carrying.
That’s where things get sticky
“Unloaded” isn’t a common-sense term like you’d expect; it’s a legal term, with varied definitions depending on your location. In Utah, a firearm is “unloaded” when there is not a round in the firing position:
Utah Code 76-10-502. When weapon deemed loaded
- For the purpose of this chapter, any pistol, revolver, shotgun, rifle, or other weapon described in this part shall be deemed to be loaded when there is an unexpended cartridge, shell, or projectile in the firing position.
- Pistols and revolvers shall also be deemed to be loaded when an unexpended cartridge, shell, or projectile is in a position whereby the manual operation of any mechanism once would cause the unexpended cartridge, shell, or projectile to be fired.
- A muzzle loading firearm shall be deemed to be loaded when it is capped or primed and has a powder charge and ball or shot in the barrel or cylinders.
In other words, if there is not a round in firing position AND it takes more than one “manual operation of any mechanism”, the firearm is “unloaded” as defined by Utah Code. A pistol with an empty chamber, but a full magazine would be considered “unloaded” by this definition.
In California it’s a bit different. I don’t have the specific code to cite, so you’ll need to look that up yourself, but from what I’ve been told it basically says a firearm is “loaded” whenever ammunition for said firearm is “readily accessible” which has been found to include a round in the chamber, a magazine with ammunition in the firearm, and even a magazine with ammunition carried on the same side as the firearm. Apparently, a loaded magazine on the opposite side of the otherwise unloaded firearm renders the firearm “unloaded” in California.
Disparity of Force? Monopoly on Force?
Some cops don’t like “civilians” carrying firearms for self-defense. Some have the attitude that it’s their job to carry a gun, not yours.
This “monopoly on force” is the the very core of a police state: when law enforcement can use force without any fear of a civilian being able to defend him or herself. Of course I’m not advocating violence against police, nor am I advocating police violence against civilians. What I am advocating is mutual respect. Law enforcement exists to protect and serve the People; the People are their employer, their boss. Sometimes this fact is overlooked.
Take, for example, Officer Rod Tuason with the East Palo Alto (California) Police Department.
Recently Officer Tuason allegedly replied to a thread on Facebook which said “[redacted] feels that Open Carry Advocates need to start carrying in like Oakland, Richmond, East Palo Alto and not limit themselves to the hoity toity cities.”
According to the screen shot of the conversation (inset), Officer Tuason replied (emphasis added):
Haha we had one guy last week try to do it! He got proned out and reminded where he was at and that turds will jack him for his gun in a heartbeat!
[…]
He apologized and called dispatched [sic] 3 times to apologize to the sgt over 2 days! […]
[…]
Sounds like you had someone practicing their 2nd amendment [sic] rights last night. Should’ve pulled the AR out and prone them all out! And if one of them made a furtive movement…2 weeks off!!!
Definitions
“Proned out” usually means placing the suspect face-down on the ground, arms and legs extended.
“AR” usually refers to a an AR-15, which the Brady Campaign would likely refer to as an “assault rifle” or an “M-16” (both terms are incorrect).
A “furtive movement”, according to Chambers v. Maroney 1970 “means secretive or concealing” whereas common dictionary definitions add the term “stealthy” to the meaning.
“2 weeks off” is a reference to the amount of paid administrative leave usually given to a police officer when they are involved in a shooting where their actions caused the death of an individual. One week is usually given when someone was shot by the office, but did not die.
Analysis
Based on what myself and others familiar with Officer Tuason’s comments can discern, he was making a thinly veiled reference to harassing law-abiding civilians exercising what he recognizes as their Right under the Second Amendment, forcing them to the ground at gunpoint, and if he saw what he felt was a “stealthy” movement, he would shoot and kill them.
These comments were made in a semi-public forum (Facebook) and should worry about Officer Tuason’s feelings on the matter, particularly because he is not a rookie fresh out of the academy, he’s a seasoned officer.
Disciplinary Action
Officer Tuason, by making this threat against open carriers, has violated California Penal Code… yet as far as I can tell, he is still on the force, hasn’t been charged with a crime, and hasn’t been disciplined in any way.
I say “as far as I can tell” because repeated calls to the Police Chief, Ronald L. Davis, 650-853-3160, have gone unanswered. Phone calls to Mayor David E. Woods, (650) 804-2125 were directed to the city’s public relations officer, but no replies have been received.
What do you think?
Did Officer Tuason cross the line with his threat against civilians exercising their right to bear arms? Should he be disciplined? If so, how? If not, why not?
