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BLOG: How To Avoid Illegally Carrying A Concealed Weapon This Hunting Season

Posted on Friday, November 9, 2018 at 8:31 AM by Nick Ridgeway

As soon as early November rolls around, you can expect hunters across the state to be hitting the roads in the early morning hours in attempt to harvest some wild game.  One thing that most hunters may not think about is whether they are carrying a concealed weapon when transporting their rifle, shotgun, or handgun to and from their hunting spot.  Most hunters are law abiding citizens looking for a recreational way to put food on the table; however, to avoid potential criminal penalties, it is important to be mindful of how you transport your weapon during this upcoming hunting season.

Neb. Rev. Stat. § 28-1202 provides that “any person who carries a weapon or weapons concealed on or about his or her person, such as a handgun, a knife, brass or iron knuckles, or any other deadly weapon, commits the offense of carrying a concealed weapon.”  The statute goes on to state that this section does not apply when the person is a valid permit holder under the Concealed Handgun Permit Act, and they are carrying a handgun.  It is important to note that this exemption for Concealed Handgun Permit holders only applies to handguns, and does not apply to long guns (shotguns, rifles, etc.).

There is a fair amount of case law surrounding what “concealed” means, and what “on or about his or her person” means.  Very generally, in order for be charged with carrying a concealed weapon you need two things to occur: (1) a weapon is concealed and (2) the weapon is on or about your person.  A weapon is considered concealed when it is hidden from ordinary observation. The “on or about his or her person” is a slightly more complicated analysis and recent case law has attempted to clarify this meaning.

In December of 2016, the Nebraska Supreme Court in State v. Senn, 295 Neb. 315, 888 N.W.2d 716 (2016) made some clarifications when it comes to a weapon being “on or about his or her person.”  In Senn, a man had a handgun in its case, wedged between the passenger door and the passenger seat with some clothing on top of it.  A common conception before this case was that the weapon had to be within the defendant’s reach while driving in order to be considered on or about his person.  The Supreme Court rejected this misconception, and held that the neither statute nor case law requires the person to be able to reach the weapon while driving in order for them to be charged with carrying a concealed weapon.  Instead, the court considered other situations, such as if the defendant could have reached the handgun if the vehicle was stopped.  The Court cited to a previous case, which held “[t]hat a weapon is concealed when it is hidden from ordinary observation and is ‘readily accessible on the person of or in a motor vehicle operated by the defendant.’”  The Court emphasized another decision which held that a loaded handgun in a locked glove box was “concealed ‘on or about’ the person of the driver because it was concealed in an accessible location over which the defendant had control.”  The Court ultimately held that Mr. Senn was in possession of a concealed weapon.

In another relevant case, State v. Nguyen, 293 Neb. 493, 881 N.W.2d 566 (2016), the Nebraska Supreme Court held that a weapon was not concealed when the police officer could see the butt of the gun and a portion of the gun up to the trigger while the gun was in a holster on the defendant’s hip.  The Court found that it was clear from the evidence that the officer could see the gun while standing outside of the vehicle, and the fact that the defendant told her that he had a weapon on him was corroborative of his obvious intent not to conceal the weapon.

As a hunter, it would be a bad idea to toss your shotgun on the back seat, mindlessly throw your hunting coat or waders on top of it, and drive off.  This would potentially fulfill the two prongs stated above that could make you in possession of a concealed weapon.  It seems counterintuitive to leave your firearms unconcealed in your vehicle while traveling, but doing so could potentially help you avoid a messy situation. 

In order to avoid any trouble, it is in your best interest to leave your weapon in plain sight when traveling, or keep your weapon in the trunk, bed of a pickup, or behind the last row of seats in an SUV.  It is also good practice to keep all weapons unloaded while traveling.  Under Nebraska law, you must keep your shotguns unloaded while in a vehicle.  As always, your demeanor when interacting with law enforcement may also help keep you from getting into trouble.  If you are pulled over, stay calm and avoid reaching around when the officer is nearing your vehicle.  Be sure to keep your hands on the steering wheel.  Soon after the officer makes contact with you, calmly tell them that you have been hunting and disclose where in the vehicle you have a weapon.  More often than not, the camouflage, bird dog, or the day’s bounty of game in the bed of the pickup will signal to the officer that you have been hunting, and likely have a weapon on you, but it is still a good idea to be completely transparent when you are in contact with law enforcement.

If you have any questions regarding compliance with the concealed weapons laws, please feel free to contact us for more information.

Posted in: General Law
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