The right to bear arms with your latte

In Washington, you can carry a gun openly, unless you intend to alarm or harm people. But with gun rights advocates testing Starbucks and the law, what you legally do is still a bit fuzzy and subjective.
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In Washington, you can carry a gun openly, unless you intend to alarm or harm people. But with gun rights advocates testing Starbucks and the law, what you legally do is still a bit fuzzy and subjective.

I see by your outfit that you are:

a) a cowboy

b) a Black Panther

c) a gun-toting Starbucks soccer mom

So-called "open carry" advocates around the country are asserting their right to carry guns in the open, not unlike the days of the old West. You might be interested to know that Washington and Oregon are deemed to be "open-carry-friendly" states, with liberal (meaning permissive) gun laws, while Alaska sets a kind of "open carry" gold standard (no surprise for Palin country). You might also be interested to know that Washington is more gun-friendly, legally speaking, than Texas.

That's because gun rights are strongly supported in Washington's constitution, and the fact that it is legal here, generally speaking, to carry a gun on your hip or a rifle over your shoulder, in the open, without a permit. Gun toters should feel more at home in the land of the Uptight Seattleite than the Lone Star state.

Seattle is in a legal battle to ban guns from city parks, a move started by former mayor Greg Nickels and continued by his successor Mike McGinn. But the ban is apparently in violation of state law. Meanwhile, "open carry" activists are strapping on heat around the country and wandering into their neighborhood Starbucks to assert their rights. Their goal is to "normalize" and "mainstream" carrying guns in the open.

Starbucks, controversially, has said it will not ban guns. Apparently, it's not okay to go barefoot and shirtless, but wearing a six-gun is fine. The company says it intends to follow state laws. Gun opponents have tried to organize a boycott of Starbucks over its gun policy, and many are using it to remind us that the coffee's better at Peet's, which does ban "open carry" of firearms.

But Washington's law has some complexities that are worth thinking about. Technically, we're an open-carry state, though you do need a concealed weapons permit to carry a gun in your pocket, purse, or car. The complexity is, there is a state law (RCW 9.41.270) that also says it is illegal to "...carry, exhibit, display, or draw any firearm, dagger, sword, knife or other cutting instrument, club, or any other weapon apparently capable of producing bodily harm, in a manner, under circumstances, and at a time and place that either manifests an intent to intimidate another or that warrants alarm for the safety of other persons."

So, the key to whether you can open carry seems to be how other people feel about your having a gun in the open, and law enforcement's judgment on that. This is reminiscent of the aggressive panhandling debate taking place now in Seattle: when is the lined crossed on intimidation? Is panhandling okay everywhere except near ATMs and parking meters? How much of a factor in your breaking the law is someone else's sense of fear? Is a petite young woman going to have the same fear factor as a burly linebacker? Can such laws be fairly enforced?

Open carry advocates argue that wearing guns in the open is not meant to intimidate, but to educate by letting the public know that, hey, your neighbors are armed, and they're just middle class folks like you. There's nothing wrong with carrying a holstered handgun on your hip. Estimates are that there are over 250,000 concealed weapons permit holders in Washington, so carrying guns isn't a fringe activity. Yes, soccer moms do it. Displaying your guns might, for some, seem reassuring, or a way to bring gun owners out of the closet.

On the other hand, alarm is partly a matter of circumstance. If in rural areas you see a guy walking down the road carrying a rifle, you're not likely to be intimidated: he's a hunter or farmer who needs the gun for some kind of business, like shooting varmints. On the other hand, if a cop sees you hanging out on some drug-infested corner of Belltown at night carrying a loaded shotgun, you might feel you're invoking your right to self-defense, but the cop is likely going to arrest you because, in such circumstances, the cop's alarm about your intentions would be legit.

I asked the state Attorney General's Office for some clarification on when it is okay to open carry and not in Washington, according to the law. They haven't issued a formal opinion on the subject, but they did forward a copy of a 2008 informal legal opinion from Deputy Solicitor General William B. Collins that goes into some detail.

The letter explores the question of when is it legal for police to conduct what is called a "Terry stop," that is to "briefly, and without warrant, stop and detain a person they reasonably suspect is, or is about to be, engaged in criminal conduct." The legal examples cited in the letter focus on Terry stops of people carrying guns in the open.

Turns out, there have been some key court cases on this issue. One is the so-called Spencer case (1994). In that, a guy (Spencer) was arrested and convicted for carrying an AK-47 with the clip attached while walking his dog at night. The court decided that "[a]ny reasonable person would feel alarmed upon seeing, on a residential street at night, a man carrying a visibly loaded AK-47 assault rifle in an assaultative manner." The appeals court upheld his conviction.

On the other hand, there's the Casad case (2007), in which a man carrying a rifle wrapped in a towel was stopped by the police in Port Angeles. The court considered the neighborhood and time of day of the incident, and determined that because Casad was walking on a major street in a mixed-use (commercial and residential) neighborhood in broad daylight on a Saturday afternoon, there was no cause for alarm. He wasn't in a school zone, there was no crowd to gun down, Casad wasn't acting weird or furtive; he wasn't wearing combat camouflage. He was on a legal errand (a visit to a pawn shop). In short, he was an innocent citizen and no Terry stop or arrest was warranted.

If the Casad case sets the current bar, then taking guns into the local Starbucks should be no problem for peaceful citizens: mixed use, Saturday brunch, legal activity, folks going about their normal daily routine. Indeed, the court seems to find that the more everyday the context, the less of an issue there is, which is exactly what open carry activists are arguing.

Also, in an urban environment, the sense of alarm could be set at a different level than, say, Port Angeles. It's hard to imagine that simply carrying a weapon in the open wouldn't be considered alarming in many parts of Seattle with its problem of gang violence and population of jittery liberals. Why would one carry a gun in the open here if not as a warning? Wouldn't merely displaying a gun warrant alarm? The courts are finding that "open carry" context matters, and that means the law relies on subjective judgment. What alarms people on Capitol Hill or a cop in Seattle might not be the same as in Forks.

But there are problems with simply allowing how someone feels about you to be the basis of the law. Dave Workman, a writer and gun-rights defender, says that Washington's gun law was passed by the legislature in 1969 following the famous Black Panther demonstration in California in 1967. There, the Panthers, asserting their gun rights, took their weapons to Ronald Reagan's Sacramento to say that what was good for cowboys was good for everyone, including black men. Workman says Washington legislators were worried about a similar demonstration in Olympia.

But do we really want gun laws based on race? The number of blacks in jail or victims of police shootings is enough to suggest that race and "alarm" still disproportionately impact African Americans. If open carry activists are trying to make packing in the open safe for soccer moms, will they ever make it safe for blacks in Seattle's South End? Or is open carry likely to be a "right" only for whites?

Some gun rights advocates are nervous about the open carry movement, fearing a negative image or opening cans of worms. Bellevue gun advocate Alan Gottlieb expressed his concerns about open carry activism to the New York Times saying that flaunting guns openly "just scares people," a stance that earned him some criticism to gun advocates who are (yes, they exist) to the right of Alan Gottlieb.

There are good things about concealed, as opposed to visible, weapons. One is they don't alarm or intimidate until they're wanted for self-defense; two, they keep weapons discrete so that bad actors never know who's armed and who's not; three, they don't tend to accelerate, escalate, or attract danger; four, they don't "normalize" an expectation that it's okay if society breaks down because you yourself are locked and loaded; and five, there are parts of society where gun violence is too common and needs to be "de-normalized."

This isn't to say that people don't often require protection, which is why permitting concealed weapons is a good thing. The police are not our personal bodyguards. Carrying a gun in grizzly country might make some sense (at least in those moments before the griz takes it away from you), but it strikes me that concealed weapons offer more protection where there are lots of people. I mean, the Wild West was wild for a reason, and moving beyond that has been progress.


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About the Authors & Contributors

Knute Berger

Knute Berger

Knute “Mossback” Berger is Crosscut's Editor-at-Large.