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Some Thoughts on the Open Carry Statute and Law Enforcement Discretion

Here’s some notes on that open carry statute.

As I understand the law prior to passage:  It was (and is) a crime to carry a concealed weapon without a permit.   A partially concealed weapon (by statute) violated this prohibition.  There were a number of defenses to the statute (my favorite required the defendant to prove that he was on a trip and was outside his circle of friends but was not a tramp).  Over the years, exceptions and defenses were added, narrowing the statute considerably (for instance, in 1991, the statute was amended so that carrying a concealed weapon in one’s vehicle was legal).

A lot of the cases arose over the whole matter of partial concealment.  A police officer would look in a car and see a paper bag on the floor with the barrel of a gun sticking out of it.  Bingo– a partially concealed weapon.

Then, last year, there was a pretty ill-considered attorney general’s opinion.  The upshot of the opinion was that the phrase “partly concealed” completely swallowed up any notion of open carry– that if any part of the weapon was covered, it was a concealed weapon.  Basically, the opinion was telling the police that if they saw someone walk by with a pistol in a holster (and, I suppose, carrying a gun in their hand, with that portion of the gun under the hand “concealed”), they were fair game because they were carrying a concealed weapon.

I did not follow the events leading to the passage of the statute this Spring, but have to assume it was a response to the AG opinion from last year.  The statutory amendment makes clear that carrying a gun in a holster is not carrying a partly concealed weapon.   (I might interject here that the state constitution specifically grants the legislature power to enact laws about concealed weapons, which this surely is.  As far as grants of legislative power go, it is clear to me that the Mississippi legislature was at least as empowered to enact this as Congress was to renew Section 4 of the Voting Rights Act).

I have a complicated reaction to all this.  The concealed weapon statute has always been a favorite “gotcha” for law enforcement seeking to run someone in, particularly because of the widespread confusion (or ignorance) of the prohibition against partially concealed weapon.  A reading of the complaints in the media from law enforcement, and the complaint filed seeking to enjoin the statute (about which more later) seemed to me equally fueled by concerns about public order and peace and by concerns that this amendment would take away law enforcement’s free pass on running someone “suspicious” in for questioning, when “suspicious” to Mississippi law enforcement viewing folks with guns has, within living memory, included things like “he is a member of the NAACP.”  See Patterson v. State, 251 Miss. 565, 570, 170 So. 2d 635, 637 (1965) (“Over the objection of appellant’s attorney, the court permitted the district attorney to ask this witness if he belonged to the NAACP, and if he did not carry the pistol a Jackson, Mississippi to meetings.”).

Beyond not trusting cops, I don’t trust the people who are aggressive and angry about asserting their right to carry guns into public places.  Put simply, someone is going to get hurt.

In that context, last Friday, a number of law enforcement folks filed a lawsuit in Hinds County to enjoin the statute because law enforcement doesn’t like it, thinks it will create trouble, and thinks it will produce people out there wandering around with guns but beyond the reach of law enforcement to stop and question.  Judge Kidd obligingly enjoined the statute, granting from the bench a temporary restraining order on the grounds that this perfectly clear statute was void for vagueness.  Yesterday, the Mississippi Supreme Court, not willing to await the usual orderly process (ordinarily, appeals lie from preliminary injunctions, not temporary restraining orders) demanded virtually instant briefs from the plaintiffs about why this should be upheld.

Randy Wallace was first with the details on his blog, has the Attorney General’s petition for Supreme Court review (which included the original motion that started the action), the transcript of the granting of the TRO, and the Mississippi Supreme Court order.

He also has the plaintiff’s response in the Mississippi Supreme Court, which, accurately, notes that appeals ordinarily lie from a preliminary injunction grant, not a TRO grant.  It also virtually admits something I thought on first reading of the original motion:  What they are seeking here is really an advisory opinion about what the statute means, something courts do not ordinary do.  They write:

“For the deputies and line prosecutors, and for the benefit of citizens affected by law enforcement’s actions, all parties would be served by having a declaration of clear Mississippi law.

Here’s another passage that I nominate for this month’s worst bit of legal writting gobbldygook:*

The state errs in asserting the claim fails merely because it is challenging a law enacted by the legislature.  … Since the Plaintiffs assert that the law is unconstitutionally vague, the power of the Legislature to enact the law is nullified if found to enact an unconstitutional piece of legislation.

The month is young, yet, but I think this one will stand at least that long.  Also, here is a constitutional law legal writing tip:  I’d avoid use of the word “nullified” in this context.

Anderson has more, including my opinion in comments about the merits of the motion for the TRO.

UPDATE:  There has been some confusion about my reference to a 2012 AG opinion.  Here is the opinion.


*Personally, I prefer gobbldygook as an insult to argle-bargle.

Read more blog posts by Tom Freeland at his NMissCommentor blog page.

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