iCarryUtah – Firearms and Utah Concealed Carry

There are a few cases that come up that I get asked about in Concealed Firearm Courses.  One of these is the somewhat famous case relating to Dell Schanze.  The other is the case of Reginald Campos and David Serbeck from an incident on 22-July-2009.

After I was asked about the Campos/Serbeck case last week, I was amazed at the way that some people think.  They take the issued media statements from the DA’s office and the police Probable Cause statements as absolute fact.  One lady said “They can’t lie, can they?”.

Well, you will find that the police can indeed lie to you, and they will lie to you when they are dealing with you.  I will refer you to this video and this video for more information.

The gist of the video is a lawyer AND a police officer both telling you that the police can and will lie to you, and that they will twist anything you say so that it can be used against you. The police officer makes this VERY clear.

“Anything you say CAN and WILL be used against you”.

Every attorney I have ever heard talk says the same thing – do not talk to the police.  Keep this in mind as you read on.

If you ever read a Probable Cause statement, it will say that it is a BELIEF.  Here is how a “PC” statement works.

The police take all of the stories they get and their own theories, and try to write a screenplay that fits together.  You start with the main scene (whatever got them involved – in this case the shooting of Mr. Serbeck by Mr. Campos), and then try to come up with the  story line that will get you to that point.

If you know anything about movies, you know that screenplays often go through many revisions before the story that makes it to the screen is finalized.  Probable Cause statements are NOT factual or true.  They are a theory – they are the best story that the police can come up with that fits – and that the DA feels they can sell to a jury.

The DA will take that story to a jury and see if they like it.  If they do, the DA will win.  If they don’t, the defense will win.  Think of it as hoping to win a People’s Choice award with a movie.  If they audience buys it, you win.  If they don’t, you just wasted a bunch of money.

Here is a link to the Probable Cause statement in this case.  Read it carefully.  Look at what it says.  There is a lot to learn in it, and it hasn’t even gone to a jury yet.

Now, here is a link to the audio of the 911 call that Mr. Campos placed.  Listen to it and compare it with the PC statement.  There are a lot of differences.

Just a few questions and some observations:

If someone had a gun pointed at you or was drawing a firearm in such a situation, would you be able to determine that the safety is “on” based on visual observation?  Would a police officer?  How would a police officer react?

Are you familiar with the safety levers on various handguns?  Do you know what they all do?  On how many firearms can you still work the slide with the safety on?

If someone is confronting you with a firearm and it was not your intent to defend yourself, would you exit your vehicle holding a firearm?  Or would you exit the vehicle with empty hands to show that you are not a threat?

Would you hold a firearm as described by Mr. Serbeck?

Keep in mind that Mr. Peterson is a friend of Mr. Serbeck.

What did you learn from the video that I referred you to earlier?  What does the PC statement indicate was received from Mr. Campos?

I have also been asked what I would have done if I was there.

I wouldn’t have been. I’ll deal with that aspect tomorrow.

In my role as a firearms instructor, I’m sometimes asked about “What If” scenarios.  I teach my Concealed Carry students to do this frequently as a part of their mental preparation – forming response plans for scenarios that they may encounter.  It improves your reaction time.

Last week I was asked about the incident at Trolley Square.  For those of you that are not familiar with it, Trolley Square is a shopping mall in Salt Lake City, UT.  It is important to note that Trolley Square has signage prohibiting firearms on the premises.

On 12-February-2007, a muslim man named Sulejman Talović entered the mall with a handgun and a shotgun.  He went on a shooting spree.  He killed 5 people and injured several others.  He was eventually killed.

Students and others have often asked what I would have done.  Would I have gone to confront him?

The answer is an absolute NO.  I would only have dealt with him if he was between me and my family, or between us and safety.  I would not have gone looking for him.

I have been called a coward for giving that answer.  But there are very practical concerns, as well as legal concerns that go into that attitude.

Remember, Trolley Square is an unarmed victim zone.  They have signs prohibiting firearms on the premises.  While those signs hold no “legal” weight in Utah (unlike a 30.06 sign in Texas), most good Concealed Firearm Permit holders will avoid such places.  I do, so I would not have been there.

However, putting that aside, say that I was to have been there.

A Concealed Firearm Permit does not make you a police officer.  It is there for when you have done all that you can to avoid trouble, and trouble still comes looking for you.  It allows you to protect yourself and those you ELECT to protect.  In my recommendation – that’s your immediate family.

Going to confront him is a bad idea on multiple PRACTICAL counts…

• The police will have been called.
• They will be looking for a man with a gun.  If you expect them to have an accurate description, try listening in to a police scanner sometime.  It takes a good deal of time for that information to be ACCURATELY transmitted.
• If you are going around with your gun at low ready, guess what?
  • YOU ARE A MAN WITH A GUN.
• If someone else – like an off-duty police officer or another Concealed Firearm Permit holder – is doing the same thing, guess what?
  • HE IS A MAN WITH A GUN.
    • Do you KNOW what the shooter looked like, or are you looking for a MAN WITH A GUN?
• If you run into each other, it could end VERY badly for one or both of you.
• If you run into a responding police officer, it could end very badly for you.
  •  Even if you are not shot on the spot, you will most likely end up handcuffed and in the back of a police car until the whole thing is sorted out.  Expect that to take hours or longer.

Now, let’s look at the police response.

• The police will be setup at the entrances.
• They will expect the possibility that the gunman (or gunmen) may disengage and pose as fleeing victims.
• In the case of Trolley Square there is video of families being told to keep their hands up and being taken to sorting areas where they were fully checked out.  They stood in the cold for hours, kids too.
• When they are frisking people, you may not have the time to announce your permit before someone yells “gun!” and you find yourself in a bad situation.
• It could get even worse if a scared individual sees your firearm print through your clothing or your shirt rides up in all of the running.  What happens when the soccer mom next to you sees your gun?
  • She won’t yell “gun” like a cop.
  • She’ll yell “It’s him!!!!!!!!”
    • LE will assume for the moment that she is an eyewitness and just positiviely ID’d the suspect.  Do you want to risk that, especially if your family is around you in front of the armed LEO’s?

If I would have been there, I would only have confronted the gunman if he was…

• between me and my family
• or
• between us and safety.

In that case I would end the threat, whatever was required.

My goal as soon as I realized what was happening would have been to get my family to our car and get us out of the area as fast as I possibly could.  We don’t want to get caught behind the cordon they will be setting up, and have to wait for hours in the cold while they figure out what’s going on.   Better to not be there.

Discretion – It is the better part of valor.

I just got an e-Mail from Mitch Vilos about a new book he has written.  He’s the Attorney that I recommend in my Concealed Firearm Courses for Utah students.  I have spoken with him, and he does know his stuff.  He’s also a nice guy.

His new book is “Self Defense Laws of All 50 States”.  His books on Utah law in the past have been very good, so I would expect the same from this one.

You can find out more at http://www.firearmslaw.com/

In my line of work, I have the chance to interact with many folks in Law Enforcement and the military.  I also get the chance to watch folks from the world of Private Contract Security.  In the last few weeks, I have seen a few folks that were testing to qualify for licenses as Armed Private Security Officers in Utah.

Some of them see it as an interim path to getting into Law Enforcement.  Some of them see it as a job that pays a little better than work as an Unarmed Private Security Officer.  Some of them take it very seriously.  Some of them don’t.

When you put on a uniform that in way resembles that of a LEO, you become a potential target.  If you are responsible to provide security in a location where something could happen, you will be the first one targeted if something really does happen.  Do you wear body armor?  Even if not armed, you should.  If you don’t know anything about body armor, take a look at http://www.jeepgunner.com/bodarmor.htm

If you are going to be armed, it’s most likely because the possibility of something happening has crossed someones mind.  Most security companies don’t want armed employees.  If they have them, it’s because at least some of their customers have encountered something that leads them to want an armed presence.  Knowing this, you need to be fully prepared – including body armor and AN APPROPRIATE FIREARM, AMMUNITION, and TRAINING.

I overheard the following in the last two weeks in a local gun store after a training session for Armed Private Security Officers…

“Where are your duty holsters for Hi Point 9mm guns?”

“What’s the cheapest hollow point ammo you sell?  I got three magazines I need to fill for work.”

First, NO ONE MAKES DUTY HOLSTERS FOR HI POINT FIREARMS.  I have been reviewing and writing about duty gear for a long time.  No one – Safariland, Bianchi, Gould & Goodrich, Galco, not even Uncle Mikes – makes duty holsters for cheap, inexpensive firearms like Hi Point because they are not suited to situations where you may have to depend on them to fight for your life.

There is a reason why you see LEO’s carrying – and their departments certifying – Glock, Sig, Beretta, Smith & Wesson, Springfield, FN Herstal, and the ubiquitous 1911.  THEY ARE GOOD, RELIABLE FIREARMS THAT ARE PROVEN TO BE GOOD ENOUGH TO DEPEND ON THEM.    You will never find a LEO carrying a Hi Point.

If you can’t afford such a firearm and your company won’t supply one, do yourself a favor.  Don’t work armed until you can.  You are putting yourself and anyone you may have a duty to protect in danger using a non-suitable firearm.

Second, YOU DO NOT WANT TO RELY ON THE CHEAPEST HOLLOW POINT AMMUNITION TO FIGHT FOR YOUR LIFE.  There is a reason that LEOs carry – and their departments certify – Cor Bon, Federal Hydra-Shok, Winchester Ranger SXT, Hornady TAP, and even Golden Sabre.  It’s because they have been proven in the field and tested in ballistic gelatin to expand properly and reliably and help to end the fight.  You won’t find your local LEOs carrying Winchester “white box” or Remington basic hollow points.

They do cost more, but what is your own life worth?  What are the lives of those you have a duty to protect worth?

To be fair, I don’t want to lay all of the blame here on the security officer trainees – although if they took their work seriously they would already have known this.

The security companies themselves should refuse to allow anyone to work armed that has unsuitable firearm.  I know that an Armed Private Security Officer carrying a Hi Point would make me question their ability, and the judgment of the company that put them on duty.  I worry for the folks that aren’t as aware, but will simply see a person in a uniform and carrying a gun and will feel safe.  If they only knew.

One suggestion I can make is for anyone considering such work but unable to afford a quality firearm… join the Glock Sport Shooting Foundation.  You can find an application here…http://www.gssfonline.com/pdf/forms/Join_renew.pdf

It costs $35 for one year.  Aside from being able to participate in competitions that will help improve your shooting abilities and learning good skills, you will be able to purchase a Glock firearm at a discounted price.  From the GSSF Website…

The GSSF Pistol Purchase Program is another benefit of your GSSF membership. If you are a current, new or renewing GSSF member, you are eligible to purchase a GLOCK pistol at discounted pricing once per year.

Impact Guns (www.impactguns.com) participates in this program in the Salt Lake and Ogden, UT stores.  It’s a great way to help you to purchase a firearm that you can rely on.

Armed Private Security isn’t necessarily a bad way to earn a living.  But remember – you (to some extent) look like a police officer.  If someone decides to do something bad, you will be obvious target #1.  Don’t put yourself at a disadvantage.  Be smart about it.

Here is a quick roundup of what happened in the last legislative session relating to Concealed Firearm Permits:

House Bill 78 (Third Substitute)

             33          Section 1. Section 76-2-402 is amended to read:
             34           76-2-402. Force in defense of person — Forcible felony defined.
             35          (1) (a) A person is justified in threatening or using force against another when and to
             36      the extent that [he or she] the person reasonably believes that force or a threat of force is
             37      necessary to defend [himself] the person or a third person against [such other’s] another
             38      person’s imminent use of unlawful force. [However, that]
             39          (b) A person is justified in using force intended or likely to cause death or serious
             40      bodily injury only if [he or she] the person reasonably believes that force is necessary to
             41      prevent death or serious bodily injury to [himself] the person or a third person as a result of
             42      [the other’s] another person’s imminent use of unlawful force, or to prevent the commission of
             43      a forcible felony.
             44          (2) (a) A person is not justified in using force under the circumstances specified in
             45      Subsection (1) if [he or she] the person:
             46          [(a)] (i) initially provokes the use of force against [himself] the person with the intent
             47      to use force as an excuse to inflict bodily harm upon the assailant;
             48          [(b)] (ii) is attempting to commit, committing, or fleeing after the commission or
             49      attempted commission of a felony; or
             50          [(c) (i)] (iii) was the aggressor or was engaged in a combat by agreement, unless [he]
             51      the person withdraws from the encounter and effectively communicates to the other person his
             52      intent to do so and, notwithstanding, the other person continues or threatens to continue the
             53      use of unlawful force[; and].
             54          [(ii) for] (b) For purposes of Subsection [(i)] (2)(a)(iii) the following do not, by
             55      themselves, constitute “combat by agreement”:
             56          [(A)] (i) voluntarily entering into or remaining in an ongoing relationship; or
             57          [(B)] (ii) entering or remaining in a place where one has a legal right to be.
             58          (3) A person does not have a duty to retreat from the force or threatened force

             59      described in Subsection (1) in a place where that person has lawfully entered or remained,
             60      except as provided in Subsection (2)[(c)](a)(iii).
             61          (4) (a) For purposes of this section, a forcible felony includes aggravated assault,
             62      mayhem, aggravated murder, murder, manslaughter, kidnapping, and aggravated kidnapping,
             63      rape, forcible sodomy, rape of a child, object rape, object rape of a child, sexual abuse of a
             64      child, aggravated sexual abuse of a child, and aggravated sexual assault as defined in Title 76,
             65      Chapter 5, Offenses Against the Person, and arson, robbery, and burglary as defined in Title
             66      76, Chapter 6, Offenses Against Property.
             67          (b) Any other felony offense which involves the use of force or violence against a
             68      person so as to create a substantial danger of death or serious bodily injury also constitutes a
             69      forcible felony.
             70          (c) Burglary of a vehicle, defined in Section 76-6-204 , does not constitute a forcible
             71      felony except when the vehicle is occupied at the time unlawful entry is made or attempted.
             72          (5) In determining imminence or reasonableness under Subsection (1), the trier of fact
             73      may consider, but is not limited to, any of the following factors:
             74          (a) the nature of the danger;
             75          (b) the immediacy of the danger;
             76          (c) the probability that the unlawful force would result in death or serious bodily
             77      injury;
             78          (d) the other’s prior violent acts or violent propensities; and
             79          (e) any patterns of abuse or violence in the parties’ relationship.
             80          Section 2. Section 76-10-506 is amended to read:
             81           76-10-506. Threatening with or using dangerous weapon in fight or quarrel.
             82          (1) As used in this section, “threatening manner” does not include:
             83          (a) the possession of a dangerous weapon, whether visible or concealed, without
             84      additional behavior which is threatening; or
             85          (b) informing another of the actor’s possession of a deadly weapon in order to prevent
             86      what the actor reasonably perceives as a possible use of unlawful force by the other and the

             87      actor is not engaged in any activity described in Subsection 76-2-402 (2)(a).
             88          (2) [Every person, except] Except as otherwise provided in Section 76-2-402 and for
             89      those persons described in Section 76-10-503 , a person who, [not in necessary self defense] in
             90      the presence of two or more persons, draws or exhibits [any] a dangerous weapon in an angry
             91      and threatening manner or unlawfully uses [the same] a dangerous weapon in [any] a fight or
             92      quarrel is guilty of a class A misdemeanor.
             93          (3) This section does not apply to a person who, reasonably believing the action to be
             94      necessary in compliance with Section 76-2-402 , with purpose to prevent another’s use of
             95      unlawful force:
             96          (a) threatens the use of a dangerous weapon; or
             97          (b) draws or exhibits a dangerous weapon.

House Bill 214 – as it is very long, you can read all of it at this link: http://le.utah.gov/~2010/bills/hbillenr/hb0214.htm

             13          This bill:
             14          .    changes the names of the Concealed Weapon Act and the Concealed Weapon
             15      Review Board to the Concealed Firearm Act and the Concealed Firearm Review
             16      Board;
             17          .    provides that duties related to the issuance of a concealed firearm permit previously
             18      designated to be performed by the Criminal Investigations and Technical Services
             19      Division will be performed by the Bureau of Criminal Identification;
             20          .    clarifies the ability of the bureau to revoke a concealed carry permit of a licensee
             21      who is convicted of a felony or other crimes or offenses; and
             22          .    makes certain technical changes.

House Bill 380            

32          53-5a-103. Discharge of firearm on private property — Liability.
             33          (1) Except as provided under Subsection (2), a private property owner, who knowingly
             34      allows a person who has a permit to carry a concealed firearm under Section 53-5-704 to bring
             35      the firearm onto the owner’s property, is not civilly or criminally liable for any damage or harm
             36      resulting from the discharge of the firearm by the permit holder while on the owner’s property.
             37          (2) Subsection (1) does not apply if the property owner solicits, requests, commands,
             38      encourages, or intentionally aids the concealed firearm permit holder in discharging the firearm
             39      while on the owner’s property.

I am often asked “Is open carry legal in Utah”.  While the answer to this is yes, there are a lot of things you need to consider before you decide to carry in the open.

If you have a Concealed Firearm Permit, you can also carry a loaded, openly visible firearm.

If you do not have a Concealed Firearm Permit, you can’t carry concealed.  Any openly carried firearm must be TWO actions from being fired AND with no live round in firing position (interpreted to be the chamber in front the firing pin/hammer).

• For a Semi-Automatic Pistol – this means no round in the chamber.  You must rack the slide, then pull the trigger.
• For a Double-Action Revolver this is interpreted to mean that the cylinder under the hammer AND the next one in rotation must be empty.   You will have to pull the trigger twice before it will fire.

I strongly advise you to consider the following carefully before openly carrying.

First, Concealed Carry provides a tactical advantage.  If the aggressor does not know you are armed, you retain the element of surprise.  Keeping in mind that REACTION is slower than ACTION – if you are carrying openly the aggressor will be even more prepared to ACT against you.

Secondly, if you do NOT have a concealed firearm permit, you can not openly carry your firearm “ready to go”.  It must require two actions to fire.  Keeping in mind that REACTION is slower than ACTION… this is not a good thing.

Third, there are a lot of people out there that get very scared (generally without good reason) when they see someone carrying a firearm without a badge and uniform.  Those people are very likely to call the police and express their concern (fear).  You may be inviting a confrontation at the least.

Lastly, there are some people – even workers in our own government – that are hostile to open carry.  When I was at a recent training session sponsored by the BCI (Bureau of Criminal Identification, the department responsible for Concealed Carry Permits), one of the instructors from BCI made the following statement…

“Open carry is only legal because it’s not illegal”

Now, when I look at that statement, I can see that someone has failed to internalize the purpose, meaning, and intent of the Constitution of the United States of America.  I can also see that this is someone that has a position of influence within a government agency.  I find that unfortunate, and frightening.

I point this out to illustrate that open carry – while being legal – may not be the best way to go about your business and not encounter undue resistance and attention.  While it may be legal, you may find that it’s not always wise given the tactical and practical concerns that accompany it.

It was recently announced that New Mexico joined Nevada in not recognizing the Utah Concealed Firearm Permit.  Honestly, it means that’s just one more state to avoid.

As for the reasons, here is what I have compiled.  It’s not surprising since NM is not as Second Amendment-friendly as UT.

The NM permit has more restrictions…

• No carry inside schools/preschools
• May only carry a single firearm at a time (Utah has no numerical restriction)
• Restricted as to type/caliber (specified on permit)
• $100 application fee
• 15-hour training class
• Shorter term (4 years)
• Must take a two-hour re-certification course at the 2-year mark
• $75 renewal fee
• 4-hour renewal course
• No non-resident permits issued – must be a NM resident
• More onerous to obtain – including requiring that a certified birth certificate, 2 photos, 2 sets of prints  be supplied to the State.

I also seem to recall that you can’t carry in locations serving alcohol there – in Utah you can but can’t be legally under the influence (0.08 BAC, same as for DUI).

In the press release about this, it looks like unscrupulous NM instructors were mostly to blame…

“We’ve had situations where certain concealed carry instructors in New Mexico solicit clients with the promise that if they train here and obtain a Utah license, which entails significantly less training than does a New Mexico license, it will qualify here,” said Department of Public Safety Secretary John Denko.  “This is incorrect, and is nothing less than an effort to circumvent New Mexico concealed carry requirements which are designed to protect the public safety while honoring individual rights under the Second Amendment of the constitution.”

Essentially they were telling their students that they could get a non-resident Utah permit and take only the Utah training.  While it would simply have been better for them to restrict non-resident permits and accept only Utah permits held by Utah residents, they did the easy thing and now deny ALL Utah permits.

My personal recommendation is to go vacation or do business with states that recognize our permit.  AZ, CO, WY, ID, WA, and plenty of others are on that list.  Pay them a visit, and know that you can take care of yourself while you are there.