Trial Set in Open Carry Case

[WildBill]

By Laura McVicker
Columbian staff writer
Monday, July 19, 2010

Trial was set for Oct. 1 for a Vancouver, Washington man accused of unlawfully carrying a handgun at a local Albertsons, a case that sparked a nationwide debate last spring on open-carry gun rights.

Kurk Kirby, 26, appeared briefly Monday morning before Clark County District Court Judge Darvin Zimmerman. His case was sandwiched between people seeking name changes and a busy criminal docket.

Kirby’s attorney, Christopher Dumm, told the judge that a second lawyer is now helping out with case. Vernon McCray of Camas, an advocate for firearms rights, volunteered to be co-counsel.

“He was just interested in helping out,” Dumm said.

Kirby did not speak before the judge nor afterward to a reporter. He has said that Dumm advised him not to give interviews while his case is pending.

His trial for unlawfully carrying a weapon, a gross misdemeanor punishable by up to one year in jail and a $5,000 fine, is expected to last one day.

Kirby was cited March 19 for carrying the handgun because prosecutors said he was displaying it in a way that either “warranted alarm” or “manifested an intent to intimidate.”

Witnesses, including two men who have concealed weapons permits, told police Kirby looked like “Wyatt Earp, ready to draw.” Witnesses also said he was “giving everyone the eyeball with his hand on the gun,” according to police reports.

Police reports indicate that officers spotted Kirby outside the store, wearing a skin-tight T-shirt that didn’t cover the large holstered handgun. The Springfield Armory XP pistol had a round in its chamber and several more in the magazine snapped into its handle. More cartridges, totaling 35, were in two magazines.

Initial reports stated Kirby made no menacing statements or gestures to anyone while he was at the supermarket, which is located in a strip mall at 5000 E. Fourth Plain Blvd. He simply stood around for 10 or 15 minutes before someone called 911.

But further investigation found witnesses who said they felt Kirby was “going into the ‘draw position,’ ” according to police reports.

Kirby told responding officers he was within his rights to carry the gun openly, reports said. He also has a valid concealed weapons permit.

The case has drawn attention of people nationwide on both sides of the open-carry debate, including advocates on http://OpenCarry.org" onclick="window.open(this.href);return false;.

http://www.columbian.com/news/2010/jul/ ... -gun-case/" onclick="window.open(this.href);return false;

[Purplehood]

Based on what I read above, the guy appears to be a jerk. Of course, that is based solely on what I read above.

[Keith B]

While Washington is a Open Carry friendly state, there are ways to and not to carry openly. This guy failed.

Here is the info from Open Carry.org's website on Warranting Alarm:

What is "Warranting alarm", why do people (firearms instructors, police officers, gun shop employees) say that this law makes it illegal to open carry? In 1969, RCW 9.41.270 was passed in light of the intimidating actions of the Black Panther Party in both the State of California and in Seattle . Analysis of the legislative intent behind the bill and final law indicated that the Washington State Legislature never intended this to be a gun control bill, and stripped out in committee provisions of the bill which would have prohibited carry within 500 feet of any "public building" for fear it would ensnare a peaceable open carrier walking nearby, thereby violating a persons rights under Article 1, Section 24 of the Washington State Constitution. This is not to say that all forms of open carry are lawful. The key word is "peaceable". If your pistol is in a holster, and you're generally not touching it or making gripping movements (except of course, in an actual act of self defense), or opening a coat to expose your pistol to intimidate someone to do something, then the current body of case law (State vs. Casad, State v. Spencer) generally makes such carry lawful.

Bottom line, in an open carry friendly location, don't taunt folks, look like you are asking for a fight and stand around in general trying to attract attention to the fact you are carrying, and no one will usually pay you much mind. (Remember, I said open friendly location, that is not in all open carry states or their towns.)

[Pete92FS]

While Washington is a Open Carry friendly state, there are ways to and not to carry openly. This guy failed.

Here is the info from Open Carry.org's website on Warranting Alarm:

What is "Warranting alarm", why do people (firearms instructors, police officers, gun shop employees) say that this law makes it illegal to open carry? In 1969, RCW 9.41.270 was passed in light of the intimidating actions of the Black Panther Party in both the State of California and in Seattle . Analysis of the legislative intent behind the bill and final law indicated that the Washington State Legislature never intended this to be a gun control bill, and stripped out in committee provisions of the bill which would have prohibited carry within 500 feet of any "public building" for fear it would ensnare a peaceable open carrier walking nearby, thereby violating a persons rights under Article 1, Section 24 of the Washington State Constitution. This is not to say that all forms of open carry are lawful. The key word is "peaceable". If your pistol is in a holster, and you're generally not touching it or making gripping movements (except of course, in an actual act of self defense), or opening a coat to expose your pistol to intimidate someone to do something, then the current body of case law (State vs. Casad, State v. Spencer) generally makes such carry lawful.

Bottom line, in an open carry friendly location, don't taunt folks, look like you are asking for a fight and stand around in general trying to attract attention to the fact you are carrying, and no one will usually pay you much mind. (Remember, I said open friendly location, that is not in all open carry states or their towns.)

Based on what I read above, the guy appears to be a jerk. Of course, that is based solely on what I read above.

I agree with both. If the guy would have just gone into the store and tended to business and left; probably nothing would have happened. Instead from the description in the article he went in there to get a rise out of people and he succeeded.

[RocTrac]

Most stores have a video system and I am pretty sure that he was on it. You have to think also that some of the gun grabbers will call a 22 revolver a hand cannon. I would be interested in seeing the video. As far as the 2 CCW's that kind of bothers me. It is obvious that they are interested in preserving their rights and then to describe the dude as
“Wyatt Earp, ready to draw.” I believe that there is something to this. Attitude/posture means a lot in something like this.

[gregthehand]

I wonder if he was resting his hand on the grip. Lot's of cops do that and I used to all the time. It's natural for people who put there hands on their hips. If he was really walking around giving people the stink eye while grabbing the pistol as if about to draw (as the article states) then I think that he deserves to a least having to go through the hassle of paying an attorney etc. I'd be very interested to see the case and I dare say if I was living nearby I would go to the trial.

[VMI77]

Most stores have a video system and I am pretty sure that he was on it. You have to think also that some of the gun grabbers will call a 22 revolver a hand cannon. I would be interested in seeing the video. As far as the 2 CCW's that kind of bothers me. It is obvious that they are interested in preserving their rights and then to describe the dude as
“Wyatt Earp, ready to draw.” I believe that there is something to this. Attitude/posture means a lot in something like this.

Witnesses, including two men who have concealed weapons permits, told police Kirby looked like “Wyatt Earp, ready to draw.” Witnesses also said he was “giving everyone the eyeball with his hand on the gun,” according to police reports.

As written, with quotation marks, this literally means that at least three people used the exact phrase quoted about Wyatt Earp and that at least two used the exact same phrase "giving everyone the eyeball with his hand on the gun." I think this is highly unlikely. There are three possibilities: 1) the police report it is quoting from is poorly written/inaccurate; 2) the article is poorly written/inaccurate; or 3) the article is deliberately deceptive.

I doubt the police report was written to attribute the exact same phrase to multiple witnesses, though obviously I can't know this. It's possible the article is just poorly written and intended to convey the general sense of the witness statements instead of attributing specific words to multiple witnesses, but I doubt that too since if that was the intent those specific phrases wouldn't have quotation marks around them.

Given the way the media usually lies, and especially how they portray guns and gun owners, my guess is that the two quoted phrases from the police report came either from a single witness or from, at most, two different witnesses. I'd also guess that while two of the witnesses have concealed weapons permits, those two particular witnesses didn't say he looked like Wyatt Earp. I think that's a verbal trick where the two men with permits is subordinate to the more general category of witnesses rather than the more specific category of witnesses who said he looked like Wyatt Earp.

[Fangs]

Wasn't Earp a lawman?

[WildBill]

Wasn't Earp a lawman?

That depends on who you ask.

Based on what I read above, the guy appears to be a jerk. Of course, that is based solely on what I read above.

It's a good thing that being a jerk isn't against the law. He could get a "life sentence".

[rdcrags]

In Colorado, an open carry state, I was cautioned against carrying in Denver, as the LEOs are inclined to arrest you for disturbing the peace if anyone "freaks out" when they see the weapon and no uniform. Doesn't seem to be a problem in the cities attached to Denver, though. Anyhow, I open carry only in the wilderness areas and the trails leading to them. No one cares.

TX CHL 1997
CO CHP 2005

[maximus2161]

well for one without being there who knows what the guy did or didnt do other than the fact he had a handgun that was visible. If he wanted attention he got it. Plus the media likes to put thier own spin on the story.

On a side note I remember back when i took my initial CHL class someone asked about open carry and the topic came up what if you forget to cover up accidentally. The instructor told an amusing story of his friend who has a CHL and was going into the grocery store. He was wearing a jacket but just forgot to put it on. The gentleman got to the back of the store when he suddenly realized he was not covered up. He said it was the longest walk he ever made.

Concealed means concealed. While the option of open carry might be appealing in certain situations I think its asking for trouble. And frankly I dont want to be a test case.

[Oldgringo]

No one asked but I'm happy with my Texas CHL. No one needs to know whether I'm carrying until they need to know it.

Furthermore, I do not have a problem with the background check either. Whether anyone wants to admit it or not, there are definitely people walking around that don't need to be carrying a gun - OC or CC. (The people I'm talking about are allowed to breed and vote and that's dangerous enough.)

[VMI77]

Furthermore, I do not have a problem with the background check either. Whether anyone wants to admit it or not, there are definitely people walking around that don't need to be carrying a gun - OC or CC. (The people I'm talking about are allowed to breed and vote and that's dangerous enough.)

No doubt, and if some more stringent requirements would cut down on the number of people getting licenses who are likely to abuse their right to carry, I wouldn't have a problem with that, either. I'm not sure what that would be --perhaps a longer course, more rigorous exam, higher proficiency?

[Dragonfighter]

While Washington is a Open Carry friendly state, there are ways to and not to carry openly. This guy failed.

Here is the info from Open Carry.org's website on Warranting Alarm:

What is "Warranting alarm", why do people (firearms instructors, police officers, gun shop employees) say that this law makes it illegal to open carry? <SNIP>

I can see it now, the pants ride down a bit, you hike them up and a voice from behind booms,"Bo-oy, you hold it rat thar. Your comin' with us!" All because I didn't have a butt or decent gun belt.