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November 27, 2014

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Nevadans are free to don their arms in the open

Even though it’s legal, not everyone comfortable with gun-wearing citizens, especially some police

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Justin M. Bowen

Dave Stilwell, a truck driver from Las Vegas who always carries a gun for self-defense, said, “When I started to open carry a couple years ago, I would have guessed that 90 out of 100 people didn’t think it was legal.”

WHAT OPPONENTS SAY

More guns open the door for more danger. The wild, wild West wasn’t a safe place precisely because more people carried guns.

An increased presence of firearms increases the possibility that a bystander could be hit by a stray bullet, or that a criminal will get a citizen’s gun and use it for no good. Even some Second Amendment advocates say an individual openly carrying a gun in a public area can result in the same reaction that a false warning of fire can in a crowded theater.

WHAT PROPONENTS SAY

The Second Amendment to the U.S. Constitution declares the right of the people to keep and bear arms, so anyone openly carrying a firearm should not need a permit — and, in fact, in Nevada, that is the case.

Advocates of the state’s open-carry law say that not everyone who carries a gun is a bad person, and that if more people carried firearms, those people who do wish to use them unlawfully would think twice before doing so.

HOW METRO POLICE ARE TOLD TO DEAL WITH PEOPLE OPENLY CARRYING GUNS

Metro’s 20-minute refresher course on open carrying of firearms, produced in-house, begins with the statement that Nevada is an open-carry state.

It goes on to tell officers that there are three ways to “engage” a person who is openly carrying a firearm: a consensual stop, in which an officer casually walks up to an individual and attempts to engage in conversation but does not make an arrest if the person simply walks away; a “Terry stop,” in which an officer has a reasonable suspicion that the person may have committed a crime or is about to do so; or an arrest.

The training depicts three scenarios using still photos.

The first scenario, which occurs on the Strip, involves an anonymous tip shortly after midnight of an armed white or Hispanic man, roughly 5-foot-10 with a medium build. The tipster says the individual is wearing a blue shirt, black baggy shorts and has a black bandana hanging from a rear pocket, which can be considered a gang symbol. When officers arrive, they see that an individual closely matching that description has a cup in his hand and is 30 feet away from a large group of people. The officers are instructed to approach the individual to determine his frame of mind. If intoxicated, he could be arrested for possessing the firearm. He also would be in trouble if he were an underage drinker or an ex-felon in possession of a firearm. If he’s not intoxicated and there is no suspicion that he has or is about to commit a crime, there is no reason to detain him.

In the next scenario, which takes place after 3 a.m. in a neighborhood known for drug peddling and gang violence, a woman calls police to report a young Asian man in her backyard with a gun and a small dog. By the time police arrive a few minutes later, they spot a man matching the description wearing a beanie and walking a dog on a leash on the sidewalk. The officers are instructed to approach the individual and ask him whether he was in the backyard — which would have been trespassing — and to try to determine whether the beanie could be used as a mask. Because he has no burglary tools and the woman did not report any theft or property damage, the officers are instructed to let him go if they have no other reason to detain him.

In the final scenario, officers at the Fremont Street Experience one evening during a festival of live entertainment come upon seven armed adults — five white men, a black man and a white woman — standing around but not drinking. In that instance, officers are instructed to leave those individuals alone.

Just about everybody on the Metro Police force has heard of Tim Farrell, and he sometimes gets mistaken for a law enforcement officer.

Farrell is simply a 29-year-old wireless Internet engineer — and a gun rights crusader. He is one of what appears to be a growing number of people taking up the “open-carry” cause, advocating a constitutional right to openly carry firearms.

“The open-carry movement has gained momentum over the last four or five years because people are waking up to their rights,” Farrell says. “I don’t need a permit to exercise free speech. I don’t need a permit to be tried by a jury if I’m accused of a crime, so why do I need a permit to carry a gun if I have a constitutional right to carry a gun?”

Nevada is a better place than most for Farrell because it is "an open--carry state." Nevada reiterates the right to bear arms in its constitution and does not have blanket restrictions on law-abiding citizens’ open carrying of firearms.

That’s why a dozen or so people who attended the March 27 Tea Party rally in Searchlight were able to openly carry firearms.

One was Dave Stilwell, a 44-year-old truck driver from Las Vegas who always carries a gun for self-defense.

He says he was jogging back from a garage sale near his house one morning last May with his .45-caliber pistol on his hip. Around Jones Boulevard and Cheyenne Avenue, a Metro patrol car rolled up slowly behind him.

A shopkeeper had called police after seeing the gun, said the officer, who took the pistol from Stilwell, removed the magazine and the bullet in the chamber, checked the ID number on the gun and then returned the weapon and ammunition to Stilwell before driving away.

“I just told the officer I was exercising my body and my rights,” he said. “In retrospect, I didn’t think that was such a big deal.

“I knew I would have contact with police at some point. Even though it’s my legal right to carry a gun, there’s a lot of propaganda out there, a lot of inaccurate information. When I started to open carry a couple years ago, I would have guessed that 90 out of 100 people didn’t think it was legal.”

So have open-carry advocates latched onto the Tea Party movement? Stilwell said that although he attended with gun in holster, his reason for going was to join others who care about their rights.

“Rights are becoming more prevalent because people feel like their backs are against the wall because of the government,” he says.

Farrell is not a Tea Partyer. He describes himself as libertarian and pro-choice on abortion. He and Stilwell are on the same page when it comes to guns, however.

Like Stilwell, Farrell says he carries his handgun wherever he goes, for self-defense. He says he has never been kicked out of a casino or other place of business but finds himself educating business owners who question why he is so brazenly armed.

Farrell says he has worn his gun many times into his neighborhood restaurant and bar near the U.S. 95-Summerlin Parkway interchange. But as he walks in one recent afternoon, a bartender who spots the gun is taken aback. She says the only pistol-packing customers she has served are undercover cops.

“So what I should have done is asked to see your concealed weapons permit because that is something that’s mandatory,” she tells Farrell.

“I don’t have a concealed gun on me,” he replies. “I do have a concealed-weapons permit but you do not need a concealed-weapons permit for a nonconcealed gun.”

“I mean, a regular permit just to carry the gun around,” she says.

“There is no permit in this state for that,” he tells her.

“It used to be years ago you would have to give your weapons to the bartender,” she says.

“This bar is private property, obviously,” Farrell says. “You can set whatever rules you want.”

“You can pull that out on me and shoot,” she tells him. “You see what I’m saying?”

“Well, of course. And that’s one of the reasons to carry openly, is for self-defense but it’s also to educate others as well that, one, it’s not against the law and, two, that not everyone with a gun is a bad guy. Certainly if there was a bad guy coming to rob you, he wouldn’t let you see the gun until it was too late.”

With that, the bartender goes about her business.

It undoubtedly helps that Farrell is not one of those guys who wears head-to-toe camouflage gear. He wears polo shirts and bluejeans.

He doesn’t have a gun collection. “I have a handgun and a shotgun, that’s all, just to keep me and my wife safe.”

When Farrell read Stilwell’s blog post about how he had been stopped by police, Farrell researched state and local laws, as well as police regulations and then conducted an experiment.

On the night of June 24, he holstered up his loaded 40-caliber Glock 23 pistol and proceeded to a sidewalk on Las Vegas Boulevard, just south of Charleston Boulevard, where he was certain he would be noticed by police. He was.

It wasn’t his first encounter with the law. While vacationing in Nashua, N.H., early last year, he was stopped on foot on the way to a bank by police who asked about his gun. Minutes later he was allowed to go about his business with gun in tow. Such is life in the “live free or die” state, apparently.

The Las Vegas Strip encounter was far more intense, with police arriving in squad cars and on motorcycles in a show of force, guns drawn. Farrell was handcuffed and his gun was confiscated, its bullets removed. Over the course of the next 23 minutes, Farrell invoked his right to talk to an attorney, told police not to touch his gun, and that he hadn’t consented to being searched and detained. He refused to answer questions about whether he possessed a registration card for the weapon, and invoked his right to remain silent.

Bottom line: He hadn’t committed any crime. After police ran a background check on Farrell, confirming his gun was properly registered, and finding that he also has a concealed-weapons permit and is not a dangerous criminal, he was uncuffed. He was handed back his gun but the bullets were dropped down one of his pants pockets and the empty magazine was placed on an irrigation box 100 feet away. He was ordered not to move until police drove away.

“I understand the need for officer safety,” Farrell said. “These guys have a tough job. But officer safety does not trump my rights. To stop me there has to be something other than the fact I have a gun. They shouldn’t have even taken my gun.”

Based on complaints from Farrell, Metro’s Citizen Review Board and internal affairs division each launched investigations into his case last summer. Although the officers involved were cleared of wrongdoing, Metro’s force had to take a refresher course on how to handle individuals who openly carry firearms.

Last month, a five-member panel of the Citizen Review Board found that police had complied with department policy related to the incident but that neither the policy nor police training at the time Farrell was stopped was specific enough on “open carry” stops. The board concluded that the police action was “the result of ambiguity among officers on how to handle an individual asserting his Second Amendment right to openly carry a gun in public.”

While cadets are trained in Metro’s police academy on how to handle constitutional rights, including those involving gun possession, the agency’s thick policy and procedure manual is silent on open-carry issues.

Andrea Beckman, the Citizen Review Board’s executive director, says Farrell’s case “brought to light the significance of how to train police officers on open carry.” Farrell’s case, in fact, was the first open-carry dispute heard by the board, and his name is now familiar throughout Metro.

A little more than a month after “the Farrell incident,” Metro’s 3,000 officers took their refresher course.

“When we don’t respond to something the way we should have, we’re quick to correct ourselves,” Metro Patrol Division Deputy Chief Kathleen O’Connor says.

The review board noted, however, that one police sergeant who confronted Farrell needed more training because it was clear from the sergeant’s testimony that if he had been given a test after the refresher, he would have failed.

The open-carry issue is tricky for police, O’Connor says, because officers are caught between preserving an individual’s open-carry rights and protecting the public from potential harm.

Of course, some police officers are not the only ones uncomfortable with the idea of lots of citizens walking around with guns on their hips. Opponents say the more guns that are being toted around, the greater the possibility that a bystander could be hit by a stray bullet, the more likely it is that a criminal will get a citizen’s gun and use it for no good. Even some Second Amendment advocates acknowledge that an individual who openly wears a gun in a crowded public area might result in the same reaction that a false warning of fire can in a crowded theater.

There are exceptions to Nevada’s open-carry rights. Among them is a state law that prohibits average citizens from carrying firearms on college campuses, at public or private schools and at day care centers without written permission from the heads of those facilities. An individual also cannot legally possess a firearm while intoxicated.

Local laws prohibit possession of guns in Clark County parks or in vehicles within North Las Vegas city limits.

Violation of the North Las Vegas “deadly weapons” ordinance, on the books since 1978, is a misdemeanor punishable by up to six months in jail and a $1,000 fine. The ordinance provides exceptions to the weapons ban as it pertains to “ordinary tools or equipment carried in good faith for uses of honest work, trade or business, or for the purpose of legitimate sport or recreation.” The ordinance has only been enforced in conjunction with traffic stops for other violations, such as speeding or suspicion of criminal activity, police say.

It also appears to violate the state law that gives the Legislature, not local governments, the power to regulate firearms, UNLV Boyd School of Law professor Thomas McAffee says.

“The state statute does permit some older local registration requirements, but the city ordinance here is a complete ban on possession in a motor vehicle, which seems to clearly fall within the scope of the state reservation of authority,” McAffee says.

Michael Davidson, North Las Vegas’ chief criminal attorney, said his interpretation is that the ordinance is legal because when the state law was last revised in 2007, the intent was to preserve pre-1989 local gun laws that had nothing to do with firearm registration. He said there have been dozens of cases in recent years where convictions that included violation of that ordinance have been upheld in North Las Vegas Municipal Court without a single appeal of the weapons ban made to District Court in Clark County.

“The intent was to go after gangbangers, not mom and pop in the RV,” Davidson says.

Farrell and other local open-carry advocates counter that North Las Vegas’ law is unconstitutional on its face, no matter the intent.

These advocates staged peaceful protests in North Las Vegas last year — picking up litter “to show we’re just regular guys” — and in January in front of Bally’s on the Strip, where numerous tourists had their pictures taken with Farrell and roughly 20 of his fellow gun-toters.

Farrell had given a Metro watch commander a courtesy heads-up before his armed group headed down to the Strip. The police commander thanked him for the warning, acknowledged the group’s right to assemble, but also pleaded with Farrell to cancel his plans.

The tourists who took pictures, however, encouraged Farrell and his posse to keep standing up for the Constitution, he says, and that’s what he intends to do.

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