An Attorney General opinion that might help OC'ers?

[gregma]

A part of this Attorney General opinion:  http://www.atg.wa.gov/opinion.aspx?section=topic&id=8666

States:

Where two reasonable constructions of a criminal statute are possible, a court is required to adopt the interpretation most favorable to a person accused of violating the statute.  State v. Gore, 101 Wn.2d 481, 681 P.2d 227 (1984).

Since 9.41.270 is a criminal statute, we might be able to use this opinion on the "alarm" part of the statute.  That is unless/until we can get 9.41.270 either repealed or changed.

[joeroket]

Wow  that is a good find. I think that really is a good one to keep in mind. The unfortunate part of it is that it says "a court". That would only come into play after an arrest.

[drewesque]

Wow  that is a good find. I think that really is a good one to keep in mind. The unfortunate part of it is that it says "a court". That would only come into play after an arrest.

Not too many of these sorts of things will come into play early enough to prevent an arrest. This is a very good opinion for anyone in legal "gray areas."

[amlevin]

Remember though that a LEO usually only makes an arrest when they think a conviction can be obtained.  That's why people are more often than not just stopped and questioned for open carry and not always arrested.

The more "opinions" like this lessen the certainty of a conviction and thus act as a deterrent to arrest.  Of course there is always that LEO that is trying to prove a point but the way to handle them is through he route of a complaint to their internal review department(s).

[joeroket]

There will be an opinion from McKenna shortly on the peaceable carry of firearms and the applicability of terry stops. I did ask to have them include whether or not the officers have the authority to seize a firearm during contact but I highly doubt even McKenna is going to want touch that part of it. I was told that it will be an informal opinion, which has no difference from a formal opinion except it is not published, and it should be made by late March. The question I worded to Rep. Mike Sells, who requested the opinion for me, was;

I am writing to request that you ask the Attorney General's opinion
on the open carry of a firearm, mainly a pistol in a holster, and also
whether or not it would justify a lawful Terry stop and if so does the
officer have authority under law to temporarily seize the firearm during
the stop.

I am very exited to see the opinion as McKenna is Pro 2A at the individuals level.

[gregma]

There will be an opinion from McKenna shortly on the peaceable carry of firearms and the applicability of terry stops. I did ask to have them include whether or not the officers have the authority to seize a firearm during contact but I highly doubt even McKenna is going to want touch that part of it. I was told that it will be an informal opinion, which has no difference from a formal opinion except it is not published, and it should be made by late March. The question I worded to Rep. Mike Sells, who requested the opinion for me, was;

I am writing to request that you ask the Attorney General's opinion
on the open carry of a firearm, mainly a pistol in a holster, and also
whether or not it would justify a lawful Terry stop and if so does the
officer have authority under law to temporarily seize the firearm during
the stop.

I am very exited to see the opinion as McKenna is Pro 2A at the individuals level.

I'm curious as to why he doesn't want to go public and will only go informal?

[joeroket]

From what I gathered from his assistant that I talked to he doesn't like to go to a formal if it is a severely sensitive topic and I can understand this with an opinion about open carry because the anti's will get it and throw a fit. An informal will allow us to use it as his opinion but it will only be useable by people that know he issued it and can get ahold of it.

[just_a_car]

But, if you post it verbatim and credit him, we can use that as a "by-proxy" published opinion.

If a judge wants to see the published opinion, all he has to do is see the website, then he asks McKenna if he sent that informal opinion, to which he must say 'yes' or be committing perjury and there will be an electronic papertrail to prove it.

Either way, it's a "win" for the good guys.

[joeroket]

Typically a court or prosecutor does not have to give a crap about an AG opinion because it is just that, one attorney's opinion. It holds no weight in a court of law but is used more of a guidance for other attorney's and lawmakers.

[gregma]

If the AG opinion doesn't mean crap, then why even bother with it?

[joeroket]

It is basically meant as information on how the AG's office interprets the law and how they would prosecute the case. I'll try and dig out the e-mails from the assistant sometime this weekend.

[gregma]

Ok, so it would help in the fact that after we are arrested, our attorney's can go to the prosecutor and show them the AG opinion and have the charges dismissed?  But then you said earlier that typically prosecutors don't give a crap about the opinions... 
I don't mean to be a pain, just trying to really understand what all of this actually means

[joeroket]

I understand exactly where you are coming from. The way it was put was fairly vague, I think, because they are not allowed to give legal advice to citizens. It seemed to me that it is a more of a guidance than a legal paper.

I forgot to get the e-mail and post it. I will try and remember to do it tonight when I get home.

[joeroket]

Here is the e-mail from an assistant at the AG's office in response to exactly what an opinion is for and gow it is used.

An  opinion is just the views expressed by our office on a subject.  When requested by a legislator, the primary purpose of an opinion is to assist the legislator in deciding if new legislation is needed to clarify or change the law.  Our opinions are not binding on anyone, and they do not replace court decisions (which are the only way to actually determine a legal issue) or legislation.  Formal opinions have been approved for publication by the attorney general, and they are widely distributed, but they do not have a different legal status from an informal opinion.

 

Police departments of course have their own legal advisers (county prosecutors, city attorneys, etc.) and may or may not choose to use an attorney general opinion in training or for other purposes.

[joeroket]

So the opinion finally came but was not exactly what I wanted. I am writing to Rep. Sells to see if we can get some additional clarification on the open carry aspect.

http://joeroket.kaidok.net/stuff/AG_opinion_terry_stop.pdf