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Will LD 380 Make Open Carry A Crime?

By Todd Tolhurst, todd@gunownersofmaine.org

April 3, 2013

On Christmas Eve of 2012, 10 days after the massacre at Sandy Hook Elementary School in Newtown, CT, Justin Dean, a 24-year-old student living in Portland, took a walk from the city’s West End to Back Cove, not unlike many Portland residents.  Unlike most, however, Mr. Dean went for his walk with his Daniel Defense AR-15 slung over his shoulder.

Although open carry of a firearm is legal in Maine, the Portland Press-Herald reported that Portland Police received 65 calls reporting a man carrying a gun.  The incident prompted Portland Police Chief Michael Sauschuck and other state law enforcement officials to call for changes to Maine’s open-carry policy.

LD 380, introduced by Rep. Drew Gattine of of Westbrook, is a bill which would make a subtle, 

but far-reaching change to Maine law which has the potential to make open carry a legally hazardous proposition.  

Maine already has a law, 25 MRSA 2001-A(1) which makes it a crime to:

Display in a threatening manner a firearm, slungshot, knuckles, bowie knife, dirk, stiletto or other dangerous or deadly weapon usually employed in the attack on or defense of a person.

Entitled An Act To Clarify the Law Concerning the Threatening Display of Dangerous Weapons, LD 380 adds a single sentence to the law:

For purposes of this paragraph, "display in a threatening manner" includes to display in a public place in a manner that causes a reasonable person to suffer intimidation or alarm.

It may not seem like a single sentence, redefining the meaning of “display in a threatening manner” could be of much importance, but this new definition makes all the difference in the world.  Under the existing law, an open carrier would have to actually behave in a threatening manner in order to commit a crime.  Under the new definition provided by LD 380, the open carrier’s actions are actually irrelevant -- it’s the perception of others that determines that a crime has been committed.  If an open carrier has the misfortune to come across an individual who is intimidated or alarmed by the mere presence of a firearm, that would be sufficient reason for police to make an arrest.

I asked Rep. Gattine for his reasons behind LD 380.  He responded:

“This bill arose out of a conversation I had with a former law enforcement official who expressed concern after the recent highly publicized incident in Portland regarding a person walking around with a rifle in some densely populated neighborhoods.  He and I were in agreement that the alarm that this caused was legitimate in an urban area such as Portland where there are a high concentration of schools and a high density of persons who have obtained protection from abuse orders.  We shared the concern that under current law there was no ability for law enforcement to approach or request identification from such persons.”

Note Rep. Gattine’s concerns: First, that people were alarmed. Second, this alarm was legitimate because of the concentration of schools and persons with protection from abuse orders.  And third, that law enforcement couldn’t approach the individual or request identification.

I have no doubt that people were alarmed.  Even as a gun-rights advocate, I’m sure I would have been surprised and a little concerned to see something as out-of-place as a man strolling down a Portland street with an AR-15.  But alarming people should not be a crime, particularly when the alarm is in response to the exercise of a protected right.  Exercises of free speech regularly cause great alarm, but we do not respond by criminalizing alarming speech.

Rep. Gattine’s concerns about the concentration of schools and persons who have obtained protection from abuse (PFA) orders is puzzling.  How does the “concentration” of schools transform any alarm that people may have felt from less “legitimate” into more legitimate?  And what have PFAs to do with anything?  PFAs are issued to protect an individual from abuse by another, specific, named person; not from a stranger walking down the street.

And Rep. Gattine’s final concern, shared with his former law enforcement official buddy: That the police had no ability to approach Mr. Dean or request identification from him.  This is a very odd complaint indeed, considering that the police did indeed approach Mr. Dean and ask him to provide identification. What Rep. Gattine means is that the police could not detain and demand identification from a person who had committed no crime.  So Rep. Gattine wishes to solve this problem by creating a new crime -- the crime of being the object of another person's feelings of intimidation or alarm.

This, of course, is an easy crime for the police to show reasonable suspicion; after all, people wouldn’t have called the police in the first place, had they not been alarmed.  Thus, any call to the police about a person openly carrying a firearm becomes all the reason police need to stop you, identify you, and if they feel like it, arrest you.  Does Rep. Gattine worry that his law could criminalize open carry?  Not so much:

“It isn't my intent to do away with or criminalize open carry but I do think that the open display of a weapon in some circumstances, such as in a crowded urban environment or in the vicinity of a school or playground is a legitimate cause of concern and a definition that accounts for "time and place" will add clarity to the current law.”

LD 380 does quite the opposite of adding clarity to the law; it makes it impossible for an individual to know if they are committing a crime or not, leaving that determination up to every person who may be in any way intimidated or alarmed by nothing more than the mere presence of a firearm.

If Rep. Gattine gets his way, it will up to our most anti-gun neighbors to decide in which “times and places” open carry will constitute a crime.

The time and place for the public hearing on LD 380 is Monday, April 8 at 10:00 in Room 436 of the State House.  Be there, and tell Rep. Gattine and the Criminal Justice Committee that open carry shouldn’t be a legal minefield for citizens.

Todd Tolhurst is a licensed firearms dealer, NRA certified pistol instructor, and member of the Board of Directors of the Gun Owners of Maine, Inc.

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