Well folks, it’s just about that time of year again — Utah’s legislative session kicks off in less than a month, and I want to get a head start on some commentary, as I have a couple of very big mediations scheduled for the week before the session begins that are going to take basically all of my time for those preceding two or three weeks.
There are a few 2012 general session bills are already posted on the Utah legislature’s website, and while browsing through them this morning, I found some that are bound to generate some interest. I’ve decided to kick of my coverage of the 2012 legislative session with H.B. 49, proposed by Representative Paul Ray of Roy, which is titled “Firearms Revisions” and is the latest chapter in the ongoing saga in the battle over guns at the University of Utah. Representative Ray’s legislation would prohibit state governmental entities from using other provisions of Utah’s criminal laws to prevent individuals authorized to carry a firearm from openly carrying on government property.
At this point, the battle over concealed weapons at the University of Utah is into its eleventh year, and the resulting collateral damage is significant. Taxpayers and students are out hundreds of thousands, if not millions, of dollars in legal fees and costs at this point (paying for both sides of the fight), and Utah lost the services of perhaps its ablest trial (and aspiring appellate) judge, Robert K. Hilder, due to legislative vindictiveness toward the judiciary that would make Newt Gingrich proud. Furthermore, in yet another ironic twist for a body professing committment to local control, educational choice, and government close to the people, the Utah legislature, in its crusade to bring the University of Utah in line, has completely centralized gun policy at the state level. See Utah Code Ann. § 53-5a-102.
Representative Ray’s proposed legislation was almost certainly prompted by an article from the Salt Lake Tribune that appeared earlier this year revealing the University of Utah’s internal strategy to deal with individuals openly carrying firearms on campus. The online version of the Tribune’s article contained a link to an electronic copy of a leaked internal University memo outlining how police officers were to use various provisions of Utah’s criminal laws to cite individuals who were the subject of complaints from fellow students for “openly carrying or displaying a firearm on campus.” Here’s a screenshot from the leaked memo:
In a letter accompanying the memo, then-President Michael Young explained the rationale for the policy:
As you know, concealed weapons permit holders may carry a concealed weapon on this campus. However, Utah statutes do not permit anyone to open carry on campus, regardless of whether the person has a concealed carry permit.
The law permits me (and those I designate) to address conduct on campus that interferes with or obstructs the educational process and the peaceful conduct of activities on the campus. You should apply this law to any individual who is observed with a weapon on campus. Please instruct the individual that revealing his or her weapon creates an intimidating environment and interferes with the peaceful activities of the cainpu.s. In the first instance, you should seek voluntary compliance by asking the individual to conceal his or her weapon. However, if the individual will not voluntarily conceal his or her weapon, you should take whatever action is necessary and appropriate to remove the individual from the campus.
There is no indication from the leaked memo that the University of Utah intends to go after a person not carrying openly who has a concealed carry permit. In fact, there is an express indication to the contrary. The policy is designed to minimize disruptions to the educational environment by those rare people who, for whatever reason, may decide to openly carry a firearm around a college campus in this post-Columbine and Virginia Tech world. And the University adopted what seems to be an extraordinarily common sense way of dealing with the problem, given the restrictions currently imposed.
But H.B. 49 would prevent the University of Utah, or any Utah governmental authority, from adopting these kind of common sense policies that balance the rights of gun owners with concerns for public order and perception of safety.
It would prohibit charging an individual with any of the following crimes for openly carrying a firearm or other dangerous weapon absent some undefined level of ”additional threatening behavior”:
- Utah Code Ann. § 10-8-47 (powers of municipalities). Intoxication — Fights — Disorderly conduct — Assault and battery — Petit larceny — Riots and disorderly assemblies — Firearms and fireworks — False pretenses and embezzlement — Sale of liquor, narcotics or tobacco to minors — Possession of controlled substances — Treatment of alcoholics and narcotics or drug addicts.
- Utah Code Ann. § 10-8-50 (powers of municipalities). Disturbing the peace — Public intoxication — Fighting — Obscene language — Disorderly conduct — Lewd behavior — Interference with officers — Trespass.
- Utah Code Ann. § 76-6-206. Criminal trespass.
- Utah Code Ann. § 76-8-703. Interfering or intending to interfere with activities — Failure to leave when ordered.
- Utah Code Ann. § 76-8-704. Violation of rule or regulation of institution — Failure to leave when ordered.
- Utah Code Ann. § 76-8-705. Willful interference with lawful activities of students or faculty.
- Utah Code Ann. § 76-9-102. Disorderly conduct.
- Utah Code Ann. § 76-9-103. Disrupting a meeting or procession.
- Utah Code Ann. § 76-9-104. Failure to disperse.
- Utah Code Ann. § 76-9-106. Disrupting the operation of a school.
- Utah Code Ann. § 76-10-506. Threatening with or using dangerous weapon in fight or quarrel.
- Utah Code Ann. § 76-10-507. Possession of deadly weapon with intent to assault.
H.B. 49 would also require prior legislative approval for any governmental authority’s regulation of firearms — including any attempt to prohibit or penalize open carrying of firearms — and would automatically void any “firearm or dangerous weapon law, ordinance, rule, regulation, code of conduct, or contractual obligation enacted, made, adopted, or entered into” without prior legislative permission and which does not specifically cite to the statutory section containing legislative authorization. In short, to the extent there was any doubt about whether open (as well as concealed) carrying prohibitions had been centralized under state authority, H.B. 49 would remove that doubt.
H.B. 49 amounts to a declaration that legally, openly carrying a firearm (or any other dangerous weapon) does not amount to “disrupting the operation of a school,” “disorderly conduct,” “interfering with activities,” or “willful interference with the lawful activities of students or faculty.” By logical implication, it declares that revealing your weapon on government property is not “additional threatening behavior” and therefore is not citable under Utah’s criminal laws (at least those catalogued above; if there are others, I’m not aware of them). Even if, in most instances, this law makes sense, H.B. 49 reduces the options a police officer has to deal with disorder that might result due to an open carry situation. Independent of whether one can imagine a case where revealing, or openly carrying your weapon, could be deemed threatening to others (and I can), you can certainly imagine cases where such an act would be extraordinarily disruptive to the educational goals of a premier research university. But H.B. 49 would remove that fact from consideration. Under this law, it wouldn’t matter if openly carrying were extraordinarily disruptive in specific context. H.B. 49 would place the focus exclusively on danger and threatening actions, not the public response.
This seems, to me, to be a misguided, and unnecessary, approach to the problem of openly carrying a deadly weapon on the campus of an educational institution. My recommendation: leave the laws as they are, and allow enforcers the flexibility to respond as situations dictate.