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 Post subject: Transporting Firearms
PostPosted: Mon Mar 24, 2008 11:57 am 
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Most of us are aware that it is lawful to open carry in Delaware and conceal with a Delaware CCDW if you're a resident or with a license from a state in a reciprocity agreement with Delaware if you're a non-resident.

We've confirmed that state parks and national parks (of which there are none in Delaware) are off-limits. We hold that it is illegal to carry a firearm into a court facility, police station or prison as it can be construed as 'contraband in a detention facility'. The City of Dover, of course, has a grandfathered ordinance requiring a CCDW to open or conceal carry and the County of New Castle has a known illegal ordinance banning the carrying of a firearm in their parks.

The topic of this discussion is focused more on transporting a firearm in the vehicle with concerns regarding openly carrying in a vehicle and potentially concealing in the vehicle without having your license.

Open carry in a vehicle in Delaware is lawful behavior -- the firearm must be in plain view. The unofficial direction we've obtained from the Attorney General's office is either to have your firearm on the passenger seat or on the dashboard. This can be problematic as sudden stops and sharp turns can cause your weapon to slide off the seat or, heaven forbid, out of your window.

It has been recommended to pick up a cheap "clip" holster so that you might be able to either holster your weapon in that and clip it to a fastened seatbelt in the passenger seat or affix heavy duty velcro (think EZ-Pass grade) to the dash and holster to keep it in place.

If you are not licensed to conceal, DO NOT:

  • Leave your weapon in your shoulder/belt holster.
  • Put your firearm in your center console.
  • Put your firearm in the glove compartment.
  • Put your firearm under your seat.

An officer can charge you with carrying a concealed deadly weapon. Let's examine the text of the statute:

Code:
§ 1442. Carrying a concealed deadly weapon (Title 11, Part I, Chapter 5, Subchapter VII)
A person is guilty of carrying a concealed deadly weapon when the person carries concealed a deadly weapon upon or about the  person without a license to do so as provided by § 1441 of this title. 

Carrying a concealed deadly weapon is a class G felony, unless the accused has been convicted within the previous 5 years of the same offense, in which case it is a class E felony


Here, the active phrase is on or about the person. Here is case law that clarifies that topic:

Code:
Whether concealed deadly weapon may be deemed to be "about" the person should be determined by considering the immediate availability and accessibility of the weapon to the person, which is a factual question. Dubin v. State, 397 A.2d 132 (Del. 1979).


Again, here we have the subjective phrase, "availability and accessibility" which is further defined:

Quote:
Factors determinative of accessibility. - Three factors are to be considered by the fact-finder in deciding the issue of whether a deadly weapon was accessible to the defendant and, hence, "about the person": (1) Would the defendant have to appreciably change position in order to reach the weapon? (2) could the defendant reach the weapon while driving? and (3) how long would it take for a defendant to reach the weapon, if the defendant were provoked? Dubin v. State, 397 A.2d 132 (Del. 1979).


Here, we can see that some situations will be car and person dependent. While a person driving a compact vehicle would certainly be able to reach in the rear passenger-side seat to get his firearm, it may be much more difficult for someone in an SUV-style vehicle. Intent must be proved:

Quote:
State must prove intent. - Where neither this section nor § 1448 of this title prescribes any state of mind as an element of the crime, the State, under § 251(b) of this title, must prove intent, knowledge or recklessness. Upshur v. State, 420 A.2d 165 (Del. 1980).


It is, therefore, our recommendation that, if you do not hold a license to conceal in Delaware, that you keep your firearm on the front passenger seat, on the dash or unloaded and cased in the trunk/hatch area of your vehicle. It should also be made clear that the condition of the gun is immaterial:

Quote:
It is quite immaterial whether a revolver is loaded or not, because such an instrument is commonly regarded as a deadly weapon without regard to its condition. If the absence of bullets would make the weapon a harmless one, then any condition that would prevent its being used at the time injuriously would have a like effect. State v. Quail, 28 Del. 310, 92 A. 859 (1914).


With this law being over 110 years old, there is a goodly amount of case law available that's able to give us a good basis for understanding what we can and cannot do. We know the two 'safest' locations and I recommend the firearm be unloaded and cased in the trunk area of your vehicle if those two locations aren't feasible to you for your chances of not being arrested.

The last point I'd like to make is the law enforcement officer 'double standard' for plain view and concealment. "Plain view" is just that -- something that a reasonable person would be able to visually see in plain view. However, something that is not in "plain view", e.g. if your center console is hiding your holstered weapon, this could be construed as concealed:

Quote:
"Concealed" weapon may be in "plain view" of police officer. - A weapon may be "concealed" within the meaning of this section, and still be in "plain view" for purposes of the search and seizure doctrine. Robertson v. State, 794 A.2d 267 (Del. 1997).

A weapon is "concealed" if it is hidden from the ordinary sight of another person, i.e., the casual and ordinary observation of another in the normal associations of life; however, since "ordinary observations" are not the same as the observations of an investigating police officer, a weapon concealed from an ordinary person may be in the plain view of a police officer. Robertson v. State, 794 A.2d 267 (Del. 1997).


As always, carry smartly; carry safely; carry always.

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 Post subject: Re: Transporting Firearms
PostPosted: Fri Apr 25, 2008 2:53 pm 
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Ok, here's one to ponder. Can I OC on the DART bus? We have to rule out the passenger seat/dashboard places for the pistol.

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 Post subject: Re: Transporting Firearms
PostPosted: Fri Apr 25, 2008 2:55 pm 
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myopicvisionary wrote:
Ok, here's one to ponder. Can I OC on the DART bus? We have to rule out the passenger seat/dashboard places for the pistol.


There's a law against smoking on trolleys and buses, but not carrying a firearm. :) I'd stand or keep your strongside visible.

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 Post subject: Re: Transporting Firearms
PostPosted: Fri May 23, 2008 6:08 pm 
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Couple of questions, gun racks and rifles and shot guns. Any thoughts?

My jeep and any arms. Concealed, open, ammo separate ? How would THAT work? I don't have the back seat installed. No trunk. I can reach almost every where in it without leaving the driver seat.

Multiple weapons? Even my Carry a Concealed Deadly Weapon is singular. NO BUG?

Guess that's more then a couple questions.

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 Post subject: Re: Transporting Firearms
PostPosted: Fri Jun 20, 2008 10:05 am 
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I know you can't carry in State Parks, but what about having a firearm cased in the trunk while at the park?

I only ask because I "accidentally" did this a few weekends ago. Didn't know that the Indian River Inlet beach access was part of the State Park system.

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 Post subject: Re: Transporting Firearms
PostPosted: Fri Jun 20, 2008 10:26 am 
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Gotarheels03 wrote:
I know you can't carry in State Parks, but what about having a firearm cased in the trunk while at the park?

I only ask because I "accidentally" did this a few weekends ago. Didn't know that the Indian River Inlet beach access was part of the State Park system.


Rule 24.3 reads:
Quote:
It shall be unlawful to display, possess or discharge firearms of any description, air rifles, B.B. guns, sling shots or archery equipment upon any lands or waters administered by the Division, except by those persons lawfully hunting in those areas specifically designated for hunting by the Division, or except with prior written approval of the Director.


Technically, yes -- I'd like to think that if it's cased, you wouldn't get any slack; however, as always, keep it in a trunk or covered hatchback area that would require consent or probable cause to search your vehicle.

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 Post subject: Re: Transporting Firearms
PostPosted: Tue Jun 24, 2008 12:08 pm 
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Ok, here's a question that I'm guessing most of us have had to deal with while OC'ing in a vehicle. The old gun-free school zone (within 1000' of a K-12). I have been very careful to try and maintain that buffer, but occasionally I forget where I'm at and end up driving by one. Technically, I am violating the law and would have absolutely no excuse in a court of law. I have since started mapping routes to get to places like the store, gas station, etc that don't take me by schools.

My question is this: If I'm not at all posing a threat to a school, but am still pulled over for some other offense (e.g. speeding) would a LEO still bust me even if I'm "otherwise" properly OC'ing? I think the answer is, yes he/she probably would make my life a living hell.

I wish there was a way to get this federal law changed to allow a citizen who just happens to be driving by a school on a public road to not be charged with a felony simply because they are within that 1000' (almost 2/10 of a mile) buffer. On school grounds itself makes sense, but greater than 1000' is tough up where I'm at when it seems there's a school on every other street corner.

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 Post subject: Re: Transporting Firearms
PostPosted: Tue Jun 24, 2008 12:11 pm 
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Well, it's a federal offense, so they'd have to take you into custody and wind up contacting federal authorities to take custody. I don't know how big of a deal or inconvenience that is to them, nor how much paperwork it would be.

Suffice it to say that it would (literally) take an act of Congress to change the law and it's not really something that you should seriously consider taking any advice on unless it was from your Lawyer.

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 Post subject: Re: Transporting Firearms
PostPosted: Tue Jun 24, 2008 12:58 pm 
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That about sums up what I thought would happen. After my OC night last week to the Claymont Steak shop and accidentally passing that K-8, I printed out a map showing every school in the area. Then I've mapped out routes to get around that won't take me by a school. It's not worth the risk to me or my family to get arrested, or to give a bad name to those of us who try to OC lawfully.

Thank you for the input, and I would definitely recommend that anyone who OC's get a map and then locate and mark EVERY chool in your area. Trust me.....even when you think you know where they all are.... there will be one more you don't know about. Not knowing may cost you big time.

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 Post subject: Re: Transporting Firearms
PostPosted: Tue Jun 24, 2008 1:01 pm 
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Dave's working on a comprehensive map in his (limited) free time since he has access to very detailed maps and statistics in Delaware. Once he's done, I think it'll be a great resource for us.

The good news is, once you get your license, you don't have to worry about it anymore. :)

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