SALT LAKE CITY — Does a person carrying a gun have a right to get on a crowded bus, or a train, even if other passengers are nervous about a stranger with a gun in the wake of violent shootings that have claimed the lives of children and adults?
It depends on the threat — or lack of threat — and it's a judgment call that at least one lawmaker wants to clarify. He wants the simple act of carrying a gun identified as no threat at all.
“The fact is the Constitution allows us to carry the weapon,” Rep. Paul Ray, R-Clearfield, said. “You have every right to get off and take a different bus if you feel uncomfortable with someone who is carrying a weapon.”
Current Utah law indicates that people riding public transit can be asked to get off a bus or train if they are deemed to be creating an unsafe environment for other passengers.
“The gun itself is not threatening behavior,” Ray said. "It’s what you’re doing personally that is threatening or not.”
He's sponsoring HB268, which tries to clarify what constitutes disorderly conduct. The measure states that “displaying a dangerous weapon in public under certain circumstances may be disorderly conduct and confirms that merely displaying a dangerous weapon in public without other behavior is not disorderly conduct.”
Under Utah law, disorderly conduct is defined as a person who displays a dangerous weapon in a public place under circumstances that would cause a reasonable person to fear for the safety of any person.
Ray added language to the proposed bill that says, ”The otherwise lawful possession of a dangerous weapon, whether visible or concealed, without additional behavior, does not constitute a hazardous or physically offensive condition, threatening behavior, or a cause for public inconvenience, annoyance, or alarm.”
The Utah Transit Authority employs its own police force to patrol its trains and buses. Capt. Jason Petersen said passengers would not be asked to leave a bus or train if they are carrying a firearm.
“That is not our policy,” he said. “(Open carry) is not against the law and we don’t refuse service for that.”
Occasionally, other passengers will call to report instances of riders openly displaying a gun, but as long as the person is abiding by the open carry laws of the state, they can ride whenever they want. However, officers may take the opportunity to speak with the individual about the situation, he said.
“We’ll respond to the call and talk to the person,” Petersen said. “Typically, we pass on information saying that, 'If you have a concealed carry permit, you're actually better off if you’re concealing your weapon.'”
He said keeping firearms out of sight is preferred, but passengers are free to open carry as long as they do so lawfully.
“You would have to take steps to put somebody’s safety at risk,” he explained. “Merely open carrying a weapon doesn’t even come close to the level of disorderly conduct.”
When officers are called to instances involving firearms, they typically confer with the individual to make sure the person is within the law, and then allow them to continue their trip.
“It usually calms the people who make the call,” Petersen said. “Obviously, we are not going to do anything to violate (the weapon owner’s) rights.”
Jenn Gonnelly, the legislative co-director for the Women’s League of Voters in Utah, said the group has opposed Ray’s bills in the past. However, the organization doesn’t oppose this one because it’s less aggressive.
“In our understanding, Ray’s bill doesn’t roll anything back, it just redefines what’s already there,” Gonnelly said. “In previous years we’ve spoken out against similar bills because they wouldn’t allow law enforcement officers to approach that person … and say, ‘Are you doing OK?’ As far as I understand, the current bill doesn’t include that.”
Sen. Jim Dabakis, D-Salt Lake, wasn’t as forgiving of the bill’s potential impact.
“Imagine you’re a mother of two or three small kids, and someone gets on the bus with an assault weapon, with camouflage and a backpack full of war bullets, and you have nowhere to go,” Dabakis said. “I firmly believe in the Second Amendment, but at some point does it allow us to disregard all other rights?”
Petersen said UTA receives about one call per month regarding firearms on transit, but he said he knew of no instance of a rider being cited for carrying the weapon.
If the situation rose to a level of disorderly conduct, then officers would take action, he said.
“That would be mean, getting loud, making verbal threats, raising your fist … taking steps to meet the elements of disorderly conduct. Then we would deal with that,” he said.
What constitutes disorderly conduct is sometimes left to interpretation, according to Blake Nakamura, a chief deputy with the Salt Lake County District Attorney’s Office.
“Did the person do something otherwise that would have been disorderly by virtue of carrying a weapon lawfully?” he queried. “It’s entirely possible. Does a threat have to be the person grabbing the gun and actually pointing at somebody? Well, no.”
He said sometimes a threat could be perceived or inferred by another passenger from the armed individual’s actions or words, even if they were somewhat subtle.
But opponents of the bill say even a subtle definition for perceived threatening behavior allows the gun carrier too much leeway to frighten fellow commuters.
“It’s not a good idea,” said Steve Gunn, who sits on the board of directors at the Gun Violence Prevention Center of Utah. “Regardless of the circumstances (on the train or bus), it’s bound to create feelings of insecurity for passengers."
Additionally, what is considered a “loaded weapon” is not always the same for all circumstances, he said.
Under Utah law, “any pistol, revolver, shotgun, rifle, or other weapon described … shall be deemed to be loaded when there is an unexpended cartridge, shell, or projectile in the firing position.”
If you have a concealed permit, you can carry it loaded. If not, and you are found to be carrying a firearm concealed, the severity of the offense will depend on whether the weapon was loaded or not. An unloaded concealed gun is a class B misdemeanor, while a loaded weapon increases the penalty to a class A misdemeanor.
As for behavior?
“It becomes highly fact sensitive based upon what the person did that is really separate from the consideration of whether he was possessing (the firearm) lawfully,” Nakamura said. “It’s always a case-by-case basis.”
Contributing: Ben Lockhart
Copyright 2016, Deseret News Publishing Company