« Motion for contempt in New Orleans case | Main | Poll of Nat'l Ass'n of Chiefs of Police »
Washington open carry ban
Clayton Cramer has a post on the origins of a Washington state law that makes it illegal to openly carry in cities "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." Apparently it was enacted in 1969 out of fear that the Black Panthers were going to come to the capitol while armed. They didn't, but the law remains.
Personally, I think it's probably void for vagueness. I can see the intent to intimidate part as proper, but "warrants alarm for the safety" is not a very clear guideline. If a legislature, dropping the arms part, were to outlaw "any conduct or behavior that warrants alarm for the safety of another," I suspect it'd go down in flames under the void for vagueness doctrine. Warrants in whose eyes? Just what is "alarm"? It doesn't forbid conduct that *does* cause alarm, but conduct that "warrants" such, so that a person could be charged even if nobody got alarmed.
There was a recent case of someone being convicted under that statute.
Publicola blogged about it extensively last year.
The problem is that all police officers are taught to "alarm" at the sight of any openly-armed person not wearing a police uniform at the time.
They are not taught the fine points of how to detect vagueness in a statute, but rather are taught that if the language of a law seems to prohibit an action, it does, so arrest the person committing said prohibited act (and let the DA and the courts sort it out).
I suspect that this is precisely the reason that the higher courts are constantly striking convictions based on vague language in laws, but there is a better solution.
How about codifying the legal principle of direct sufficiency, or whatever it's properly called at your level?
Sort of like affirmative defenses are codified into laws now (i.e. the "castle" defense to homicide or the hunting expedition defense to firearms possession and carry laws.
In my simple mind, if every law had sections saying what it WASN'T (based on previous history of incorrect interpretations), fewer cops would arrest on specious charges, like the kid in Spokane was arrested. It might be more difficult and time-consuming to write such sections, but by doing so, government would indicate that it is self-limiting, and the people would accept regulation more openly, making everyone's jobs of enforcement easier, cheaper and less stressful.
A corollary might be to require that every successful defense that prevents conviction by vagueness not just be written into the reporters, but posted as a footnote in the actual revised statute, so that ANYONE consulting the statute would immediately see that a limitation had already been made on interpretation of a prohibition of conduct.
Just the rambly thoughts of one who never got to your level, but probably has the instincts to operate there.