Although I completely agree with you on all points, Fishorman, FWIW, here is the Washington-specific problem with open carrying (here is why you're taking a risk of going to the pokey - today in Seattle, tomorrow in your neck of the woods, unless the legislature changes the law)....
To quote the heart/crux of the opinion from the test case interpreting the vague WA law against carrying/brandishing, posted on page 1 of this thread:
"Having determined that the "warrants alarm" portion of the statute is not vague, the only remaining question is whether Spencer's conduct falls within the statute's constitutional core. Clearly, it does.
Any 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 assaultive manner. This alarm would be intensified if the man were walking briskly with his head down and avoiding eye contact with passers-by, as Spencer was doing. Furthermore, our conclusion that Spencer's conduct warranted alarm is supported by the kinds of people who were alarmed in this case, including several firefighters, a police officer, and a passing motorist."
There are at least 3 problems problems with this opinion, the first 2 being rather glaring:
1. The biggest problem is that the appellate judges in this case, as can be seen from the bolded 2 sentences in the blip above, by those statements, are clearly injecting their opinion as a matter of law into something that is obviously a clear matter of FACT, which must be decided by the trier of fact, be that the jury or trial judge in the absence of a jury. Therefore, this case should have been remanded for a trial as to the FACT of whether "a reasonable person would have been alarmed" by the manner of carry of the firearm in this case. Instead, these idiotic and/or lazy judges simply decided to try the fact themselves - something which appellate judges are forbidden to do. So either the judges deciding this case need to be thrown out, or perhaps the case was poorly litigated by the attorney and litigant, forcing this issue. More likely the former is the case, but impossible to tell from the opinion whether the attorney/litigant failed in bringing this to the forefront of the argument, or whether they did, and the lazy, worthless appellate judges simply knowlingly glossed over the fact that only a jury or trial judge is entitled to decide FACTS from the evidence/witnesses;
2. It is a bit unclear from the opinion whether, in determining whether one's method of "brandishing" actually "warrants alarm", based on all the facts and circumstances, is supposed to be an OBJECTIVE test, or a SUBJECTIVE test. These idiotic judges are all over creation on this point. By saying "a reasonable person" (thus making themselves a trier of fact), they seem to imply that's it's an OBJECTIVE test - that the trier of fact should decide whether an average, reasonable person would be alarmed. This test would make more sense if it were a matter of CIVIL liability, because it could vary from place to place, and thus take into account the feelings/thoughts/norms/values of the local jury of one's peers. BUT, for a CRIMINAL matter, *IF* the court is adopting such an objective test, then it seems that they are dead wrong when they came to the conclusion that the law is NOT unconstitutionally vague - criminal laws must be pretty clear to be constitutional. Having said that, it is not totally foreign to the criminal law to implement types of OBJECTIVE tests for criminal behavior, most often seen in negligent homicide case (manslaughter), which are in turn usually a result of a drunk driving-caused death. The law allows the jury to decide whether, based on all the facts and circumstances, the drunk driver was grossly negligenct - if he was, then it's manslaughter; if he wasn't then it's not a homocide (not manslaughter). How drunk? How fast? How reckless? How many likely pedestrians? Etc, etc, etc. So it wouldn't be entirely wrong I suppose to incorporate an objective test into the criminal law. But it makes it scary for the person open carrying as to whether they're breaking the law, and it certainly runs counter to the general idea of criminal law being more black and white as to whether one is breaking it. In any event, by not remanding, they've potentially shut the door for future litigants to even attempt to get this objective test to the trier of fact (jury). (back to problem number one). Now, OTOH, by noting that certain people were in fact actually alarmed, the court seems to be saying that a SUBJECTIVE test is appropriate: i.e. one person is actually scared, then that's it, yoiu're guilty. This would be the kiss of death as a practical matter, if future trial courts interpret this decision to mean a subjective test. Because there will always be at least ONE blissninny (99% chance) that will see you and actually be scared in his/her own mind, even if its a single action army revo, holstered with retention strap, carried by a kindly looking old grandpa with a big smile and lots of eye contact. Objective would be better and that seems to be the suggestion of the court, since they said somthing like "as additional evidence, some folks were actually alarmed."
3. The last problem is simple confusion as to what the actual facts are. Again, we need a trier of fact to try the facts, and submit their findings of facts to the appellate court in an organized format. Specifically, I don't see how one minute the gun is "slinged", and yet the court finds that it's being held "in an assaultive manner".. wth? Also, I doubt it was a select-fire weapon, as is indicated by the undoubtedly firearm-ignorant court, by saying "AK-47". Also, how does a so-called "clip" being in the gun, which was in fact witness, equate to the gun being "visibly loaded". I doubt those firemen and the initial RP has x-ray vision, so how could they tell it was actually (visibly) loaded? As you know, mag being in does not necessarily equate to being loaded (regardless of the ultimate actual condition of the rifle - all that matters is whether a reasonable person witnessing the carrying/brandishing thinks in his/her mind. And this reasonable person, for one, would not necessarily think that a man carrying a rifle with mag in means that it's loaded - nor would I necessarily be alarmed, of course - contrary to the court implying that "clearly", anyone would be alarmed.
Let's get the facts straight before we go to appeal. Again, it's unclear whether it was poorly litigated, or was finely litigated, but the judges just glossed over the points of the defendant. The whole statute stinks because of it's vagueness, and more imporantly, because of it's direct infringement of our RIGHT to BEAR arms (the court found otherwise, but they're idiots).
