More On The Open Carry Fiasco In Mississippi

The attempt to stop HB 2 – the Mississippi law that defines “concealed” – from coming into effect is looking more and more like a fiasco. By defining concealed, HB 2 clarifies open carry as allowed under the Mississippi Constitution.

A case in point. One of the named plaintiffs, Hinds County District 4 Constable Jon Lewis, says his name was added to the initial complaint without his permission or consent.

From Y’All Politics:

Representative Andy Gipson sent me a text yesterday at 1:00 stating there would would be a press conference about HB2 at 1:30. I decided to attend and show my support for the legislation. After the news conference WAPT’s Erin Kelly asked me about my position on the issue. I told her I supported HB2. She asked if I were a party to the suit and I told her no but other Constables were. She said my name was on it. I discovered to my surprise indeed it was.

I angrily called attorney Lisa Ross’ office and asked for her to call me (she is the Attorney who filed and signed the case). A few minutes later she called and told me she had my name removed and it was a mistake. I told her “Great, but the damage has been done.” along with a few other choice words. I asked her why she did this and she said my name was on a list. I asked her “what attorney takes on a client without his written permission.” She again said it was her mistake and she removed from the case. I consider this lawyering at its worst. I promptly went the Mississippi Bar Association and picked up 3 complaint forms for each attorney involved.

 You would think that a lawyer who had been in practice for 19 years and who had gone to a top 50 law school (University of California Hastings College of Law) wouldn’t be making such amateur mistakes. I guess in her case that ideology has gotten in the way of good legal practice.

Dave Hardy at Of Arms and the Law blog posted about the case yesterday. He considers their temporary restraining order as “bunk” and then proceeds to pick apart their whole initial motion for a TRO. He concludes with this.

Who drafted this pile of offal? Can officers of a county (which is
generally a subdivision of the State) sue the State? Isn’t that a
little like the City Planner suing the city because he doesn’t like the
zoning plan?

If attorney Lisa Ross who drafted both the initial motion and the response to the Mississippi Supreme Court is considered the best legal draftsperson of the legal team involved, then what does that say about District Attorney Robert Shuler Smith and Southern Poverty Law Center attorney Jody Owens?

Nonetheless, a three judge panel of the Mississippi Supreme Court yesterday declined to stay the Temporary Restraining Order issued by Hinds County Circuit Court Judge Winston Kidd. Their order said they were denying the state’s request on procedural grounds and expressed “no opinion respecting the merits of the matter pending before the circuit court.”

Judge Kidd will be holding a hearing on the case on Monday, July 8th. It is still expected that the case will eventually be appealed one way or another to the Mississippi Supreme Court.

About That Open Carry Law Fiasco In Mississippi

The State of Mississippi passed a law in March clarifying the law regarding open carry in that state. It was to go in effect today. Late Friday afternoon, the District Attorney for Hinds County (Jackson) and an attorney for the Southern Poverty Law Center found a judge who would grant a temporary injunction against the law. As David Codrea noted on Saturday, Judge Winston Kidd bypassed the normal checks and balances.

In an unabashed feat of judicial and linguistic contortion, Kidd ruled that specific language is “vague,” and justified his injunction on the grounds that allowing the bill to take effect would cause “irreparable harm.” That’s consistent with what opponents of the bill, who lost their fight to kill it in the legislature, are promulgating.

Jeff Pittman, a gun rights advocate in Mississippi, had this to say in his 2A Newsletter which I’ve reprinted with Jeff’s permission.

House Bill 2 rationally defines concealed weapons as those not readily visible, and unconcealed weapons as those readily visible. The effect of the law is that open carry will be generally legal without a permit, as the Mississippi constitution provides. The only reason folks haven’t been able to open carry in the past is the erroneous definition of “concealed” in current law and case law, which refers to “concealed in whole or in part.” The constitution says nothing about concealed “in part.”

In what can only be described as a sneak attack, late Friday afternoon just before the courts closed for the last time before the law took effect, a lawsuit was filed seeking an emergency injunction against the law’s taking effect on Monday morning (today).

The lawsuit was brought by Hinds County District Attorney Robert Shuler Smith, Hinds County Sheriff Tyrone Lewis and state Sen. John Horhn (D-Jackson) among others. Those ELECTED officials will be remembered in the future.

The plaintiffs apparently went judge shopping and found a winner in Hinds County Circuit Judge Winston Kidd (another ELECTED official), who agreed the law was ambiguous or vague and a restraining order was “necessary to prevent immediate, irreparable harm.” Kidd issued a temporary injunction in the emergency hearing sometime after 4:30 Friday afternoon.

What the alleged ambiguity or harm is was not clear. What the emergency was to block a law that was passed months ago was also unclear.

Not being an attorney, I was unaware that a county judge could block a state law. What if another county judge blocks the original concealed carry prohibition law?

The temporary restraining order reportedly will last until July 8, when Kidd has scheduled a hearing on the merits of an injunction to block the law.

Look for this to move to a competent court.

Both Horhn and another plaintiff said they don’t believe the constitution provides for open carry. But Article 3, Section 12 of the MS Constitution reads:

“Right to bear arms.
The right of every citizen to keep and bear arms in defense of his home, person, or property, or in aid of the civil power when thereto legally summoned, shall not be called in question, but the legislature may regulate or forbid carrying concealed weapons.”

Jody Owens, an attorney for the Southern Poverty Law Center (a well-known liberal hate group), represented DA Smith, and spun a bizarre story for the press, saying “The plaintiffs are trying to stop mayhem. We’re looking at a wild, wild west scenario.”

Arguing for the state, assistant attorney general Harold Pizzetta said that open carry is already protected by the state’s constitution, because it isn’t mentioned in a section that gives the Legislature the right to regulate concealed carry (see above).

Once the new law takes effect, there will still be a lot of problems due to erroneous efforts to circumvent it. Agencies and local governments statewide are falling all over themselves to try to ban legal guns from all government buildings by passing policies and posting signs, apparently little of which is supported by statute. Keep in mind that we also have a preemption law prohibiting such activities by cities and counties. Mississippi Code section 45-9-51 reads “Subject to the provisions of Section 45-9-53, no county or municipality may adopt any ordinance that restricts or requires the possession, transportation, sale, transfer or ownership of firearms or ammunition or their components.”

Mississippi Attorney General Jim Hood filed a combined petition to vacate a restraining order and emergency petition for interlocutory appeal with the Supreme Court of Mississippi today. Jeff Pittman notes in a later email that Hood has never been a “particularly strong proponent of gun rights, and this case is likely more of a turf war than a battle of philosophies.” I think Jeff may be quite correct on this last point if this part of the petition is any indication.

From the Gun Rights Examiner:

“[T]he Motion incorrectly declares that District Attorney [Robert Schuler] Smith is bringing this matter in his capacity as ‘the chief legal officer of the State of Mississippi,” the petition documents in an ironic comment about lack of standing that illustrates a presumption of non-existent authority and questionable legal competence on the part of both the DA and the Southern Poverty Law Center attorney backing the power grab.

“A district attorney is prohibited from bringing any suit the subject matter or impact of which would be statewide because only the Attorney General may bring such a suit of statewide importance,” the petition reminds the Court.

The Supreme Court has given Hinds County DA Robert Smith and the rest of the respondents until 5pm this afternoon to file their response.

I would not be surprised to the injunction vacated sometime tomorrow on standing grounds alone. I’ll post more as it becomes available.

UPDATE: Checking the docket of this case on the Mississippi Supreme Court’s website, it appears that the respondents/plaintiffs did submit their response by the end of the business day on Monday. Unfortunately, I’m not able to download their response to read it.

UPDATE II: Thanks to Jeff Pittman (see comments) we have the response by the gun prohibitionists. It can be found here.

Open Carry In North Carolina

The topic of open carry made the Off The Record blog of the Greensboro News-Record on Tuesday. It isn’t often that you see a reasonable discussion of open carry in a newspaper without it being connected to some crime. In this case, it was an article by Jeff Welty of UNC’s School of Government in their North Carolina Criminal Law blog that led to the posting about open carry.

As to the question of whether you as a law-abiding citizen can legally carry openly in North Carolina, the answer is generally yes. That is thanks to a 1921 case decided by the North Carolina Supreme Court.

From the Off The Record blog:

The case originated in Kernersville, where its central figure, Orah W. Kerner, was a member of the namesake family. He was “president of American Hosiery Mills, senior member of the firm of Kerner Brothers, and a large tobacco planter,” according to his 1923 obituary.

According to the Supreme Court, Kerner “was walking along the streets of the town of Kernersville in Forsyth County carrying some packages, when he was accosted, for the purpose of engaging him in a fight, by one Matthews; that in the course of this altercation he set down his packages and went to his place of business and there procured a pistol, which he brought back with him unconcealed to the scene of the altercation. Sec. 3, ch. 317, Public-Local Laws 1919, prohibits the carrying of such weapons off his own premises by any one in Forsyth without a permit, even though it was not concealed. The court, being of the opinion that this statute was in conflict with the constitutional provision that “the right to bear arms shall not be infringed,” directed a verdict of not guilty, and the State appealed.”

The Supreme Court affirmed the trial court verdict, noting the distinction between the right to keep and bear arms and the right to carry concealed weapons.

“The former is a sacred right, based upon the experience of the ages in order that the people may be accustomed to bear arms and ready to use them for the protection of their liberties or their country when occasion serves. The provision against carrying them concealed was to prevent assassinations or advantages taken by the lawless, i. e., against the abuse of the privilege.”

Open carry in North Carolina is not without constraints. One of the more common issues that comes up is what is called “going armed to the terror of the people.” Professor Welty notes that it comes up when someone is intentionally trying to scare or terrorize others but “a person doesn’t commit this offense by carrying a weapon in a
non-threatening and orderly manner, such as going about one’s daily
business with a handgun in a hip holster.”

Professor Welty says that local government can regulate, to some extent, open carry in North Carolina. For example, they could prohibit open carry in public buildings and their parking lots. However, while NC GS 160A-189 and NC GS 153A-129 allows cities and counties to regulate the display of firearms on sidewalks, streets, and other public property, Professor Welty does not believe that they could use these laws to ban open carry.

But reading the power to “regulate the display of firearms” to allow
local governments to ban open carry in public is probably wrong for two
reasons. First, it would be unconstitutional under
Kerner. As the
court noted, “[t]o exclude all pistols, however, is not a regulation,
but a prohibition, of arms which come under the designation of ‘arms’
which the people are entitled to bear.” Second, such a reading ignores
the fact that both statutes allow local governments to “regulate . . . or prohibit”
the discharge of firearms, but only to “regulate” the display of
firearms. The lack of parallelism appears to be intentional. Therefore,
although the precise extent of local government authority isn’t clear,
and a variety of local regulations might be permissible, a complete ban
on public open carry does not appear to be

Given that Professor Welty works for the School of Government which has as part of its mission to educate local governments on the law, there is hope that this information will filter down to local law enforcement agencies.

H/T Ken Soderstrom

HB 2756 – Texas Open Carry Bill

Aaron Spuler of the Weapon-Blog is asking for help. If you live in Texas and want open carry, now is the time to act.

From Aaron:

We’re running out of time to get Texas HB 2756 (Open Carry) passed this legislative session. The last day to get a vote on this one is Thursday. If we miss this opportunity, we won’t have another opportunity until 2013 (the Texas legislature only meets once every two years).

He has details on his blog here on what you need to do.

“It Was Disturbing”

“It was disturbing” was one of the comments regarding a group of Open Carry proponents in Pasadena protesting attempts to ban open carry in California.

A Brady Campaign spokeswoman agreed.

“I believe the open carry movement is very intimidating,” said Suzanne Verge of the Brady Campaign to Prevent Gun Violence. “I think as a citizen I should be able to go along Colorado Boulevard and shop where I want to shop and not have to worry about running into somebody with a loaded weapon.”

Substitute “Negro” for “loaded weapon” and I’m sure that either of those comments could have been also said by certain white people in Birmingham about seeing Rosa Parks sitting in the front – as opposed to the back – of the bus.

One of the major reasons Judge Irma Gonzalez gave for dismissing the challenge to California’s requirement to show good cause for a concealed carry permit was that California allowed unloaded open carry along with loaded open carry in certain rural areas. Because the state did provide that alternative, the good cause requirement passed constitutional muster.

You have to wonder which the gun prohibitionists fear most: unloaded open carry or shall issue concealed carry.

H/T Brandon Combs

Wisconsin City Pays $7500 To Woman Arrested For Legal Open Carry

Back in October, I reported on the case of Krysta Sutterfield who was arrested at gun point after wearing her pistol to the Unitarian Universalist Church of Brookfield. She was arrested for illegally transporting a firearm despite having her pistol in a zipped case and not on her body. Afterwards, the district attorney declined to prosecute because the officers had no probable cause to stop her and search her car and the charges were dropped.

Ms. Sutterfield and Wisconsin Carry filed a lawsuit in U.S. District Court for the Eastern District of Wisconsin charging her 14th Amendment rights had been violated.

This week the lawsuit was settled with the City of Brookfield paying $7,500 according to a story in the Milwaukee Journal Sentinel and court filings. The city made the offer on December 20th and gave the plaintiffs 14 days in which to accept the offer. The plaintiffs accepted it that same day and judgment was entered on December 30th. The heart of the offer was:

a joint offer to allow judgment to be taken against them in the above referenced action in the total amount of $7,500.00, inclusive of costs and attorney’s fees. This offer is intended to resolve all claims, state and federal, arising from the incident which forms the basis for all claims by Wisconsin Carry, Inc. and Krysta Sutterfield against the above defendants. It must be accepted by both Wisconsin Carry, Inc. and Krysta Sutterfield in order for there to be a valid acceptance. This offer is not an admission of liability on behalf of these defendants, and should not be construed as such.

Despite the settlement, it does not appear that the City of Brookfield won’t make a similar mistake in the future if the comments of  Greg Gunta, an attorney for the city, are to be believed.

An attorney for the city said police will still always respond in force to calls of a person with a gun, and if turns out to be an open carry situation, that’s just the cost of doing business.

“These are kind of ‘gotcha’ cases,” said the attorney, Greg Gunta. “The courts are being used for a political stage.”

Mr. Gunta went on to suggest that if the plaintiffs really brought this case based on principle they should give the money back to the City of Brookfield for “gun education.” To think that a city whose police force was so ready to violate the Second and Fourteenth Amendment rights of it citizens could conduct “gun education” is laughable. Whatever use Ms. Sutterfield and Wisconsin Carry find for the money I’m sure will be better than that offered by Mr. Gunta.


It appears that some law enforcement officials in central Iowa are not too happy with the new “shall-issue” carry permits. Huxley Chief of Police Mark Pote sent a letter to local businesses last month advising them to post large signs saying no guns were allowed. In an on-camera interview with reporter Aaron Brilbeck of WHO-TV, he backtracked a bit.


One wonders if the phrase “with all deliberate speed” means anything to him.

Sean McClanahan of the Iowa Firearms Coalition called it what it was – scare tactics. Sean’s Des Moines Gun Rights Examiner column has more example of these tactics throughout Iowa.

H/T NRA News

Second Amendment Is Alive In Iowa

Yesterday was the first day that residents of Iowa could apply for carry permits under the new “shall-issue” system – and thousands of them did. Under the old system, it was at the discretion of the local sheriff if a person was granted a carry permit and the firearm had to be carried concealed. This led to situations like in Osceola County where Sheriff Douglas Weber denied the carry permit for Paul Dorr because he thought he was “weird”.

The cost for the permit is a reasonable $55 for five years.

Of course, there are some that aren’t happy with the new law. I hate to pick on librarians as my Mom was a school librarian for many years. And, of course, there is everyone’s favorite reference librarian Breda as well. However, some Iowa librarians seem to be in a snit over the new law.

Dee Crowner, director of the North Liberty Community Library, told LJ the city administration there has been working on the issue and that the library would abide by whatever policy the city chooses. However, she said the new law “scares the bejesus out of me.”

“Our library is in a community center that houses the recreation center, the aquatic center, the telecommunications department, and the library,” she said. “You can imagine how busy we are with people of all ages…. Why would anyone want to carry a gun in plain sight in a public place? For the power, to scare people, for the rush?”

H/T Mark Vanderberg

Another Wisconsin Open Carry Lawsuit

Wisconsin Carry and attorney John Monroe have been busy beavers. Or is that badgers.

Little more than a week after they sued the City of Madison and Chief Noble Wray, they are suing the City of Brookfield (Wisconsin) and four Brookfield Police Department officers in U.S. District Court for the Eastern District of Wisconsin. The city and officers stand accused of violating the civil rights of Krysta Sutterfield by performing an illegal search and seizure among other things.

Ms. Sutterfield was attending services at the Unitarian Universalist Church of Brookfield on July 4th of this year. After church services ended, a church member called the non-emergency number of the Brookfield Police Department and asked whether it was legal to open carry. The BPD responded by sending several officers and cars to the church. The caller pointed out Ms. Sutterfield to one of the officers as she was driving out of the church parking lot.

According to the complaint, one of the officers stopped Ms. Sutterfield’s car and drew his weapon. Another officer then appeared on the scene and also drew his weapon. She was ordered out of the car, handcuffed, and then her car was searched without her permission. One of the officers found Ms. Sutterfield’s handgun in the car enclosed in a securely zippered case. They then placed her under arrest for “illegally transporting a firearm.” However, the prior April the Brookfield PD had circulated a memo from the Chief of Police informing all officers that illegal transport of a firearm was not an arrestable offense in the State of Wisconsin. Ms. Sutterfield was taken to the Brookfield Police Department where she was questioned, booked, and then released.

The local district attorney declined to prosecute the case because he determined:

that the Defendents had no probable cause to stop Sutterfield and to search her car, as no criminal acts had been reported to Defendents at the time of the stop and search.

The Brookfield Police Department still maintains a record of Ms. Sutterfield’s arrest which is also an item of contention in the lawsuit.

The Defendents are accused of violating Sutterfield’s 14th Amendment rights to be free from unreasonable searches and seizures, her 14th Amendment rights to due process, of using an unreasonable amount of force, and by harrassing her for open carry they infringed her rights to keep and bear arms. The Court is being asked for an injunction prohibiting the individual police officers from “detaining, searching, or arresting” individuals who are lawfully open carrying. Another injunction is being requested to expunge the record of Ms. Satterfield’s arrest. Finally, the plaintiffs are asking for a declaration stating that “openly carrying firearms, without more, is not a criminal act.”

Ms. Sutterfield had been the victim of violent crime in the past and this is why she now open carrys. To be frank, you don’t often hear the words Unitarian and open carry in the same sentence. Indeed the church has passed resolutions calling for more gun control.

This case is very similar to the California case of Wolanyk v. San Diego which was discussed in an earlier post. I wouldn’t be surprised if an out-of-court settlement isn’t also reached in this case.

H/T SayUncle