For firearm owners in Nebraska, a recent Nebraska Supreme Court Case should be of grave concern. This recent ruling confirms that the state’s concealed weapon ban is very broad and criminalizes routine behavior. It is so broad that it infringes on the rights of citizens as guaranteed by the State Constitution. It may criminalize behavior as routine as walking out of gun store with a newly purchased handgun in its factory packaging.
The ruling established the following:
- A concealable firearm, out of reach of a driver or passenger while driving, but accessible when the vehicle is stopped may be considered concealed
- The question of accessibility is no longer simply common sense
- Any concealable weapon not at least partially in view may be considered concealed and in violation of the law
- Even if a person cannot readily access it at the time they are arrested, a jury may, conclude the weapon was “on or about their person” at some previous time or place and find the person guilty.
Most Nebraskans know that carrying or transporting a concealed firearm without a CHP is against the law. However, many non-CHP holders who transport firearms to and from the range, from point of purchase and to and from a gunsmith or Federal Firearms Licensee may be unknowingly breaking state law according to a recent ruling by the Nebraska Supreme Court.
On Friday, December 16, the Nebraska Supreme Court published its decision in State v. Senn, a criminal case in which the defendant was charged with several crimes and was ultimately convicted of carrying a concealed weapon.
The defendant, Joseph Senn, was helping a woman move her belongings out of her estranged husband’s home in Richardson County. During an argument, the woman’s husband ordered them to leave, and Senn is alleged to have gone to the rented moving truck and retrieved a hidden handgun, fired the gun without hitting anyone, and then left with the woman in the truck. (Senn later denied getting his gun out of the truck or firing it.) The woman’s husband contacted law enforcement after this incident, and the Richardson County sheriff and a deputy stopped the moving truck with Senn and his passenger in the cab. During the stop, they noticed a factory pistol case in between the passenger seat and the side of the truck, partially covered with clothing.
Senn was charged with five criminal counts including attempted murder, and he was ultimately found guilty by the trial jury of a single charge of carrying a concealed weapon. He appealed this conviction, claiming that no reasonable jury could have found him guilty of the crime based on the evidence presented at trial. Specifically, he argued that the evidence did not support the claim that the gun was “on or about his person” as required by the criminal statute, since he could not reach the gun while he was driving. In his appeal, he cited testimony from the sheriff that the gun was across the cab of the truck from him, and also testimony from the deputy who stated that Senn would not have been able to reach the gun while driving. The Nebraska Court of Appeals agreed and reversed the trial conviction. Many, if not all Nebraska firearms owners would agree with this interpretation of the law. However, the State felt differently.
The State appealed to the Nebraska Supreme Court, which determined a reasonable jury could have convicted Senn of carrying a concealed weapon. The Court noted that there was no particular time or location restriction in the judge’s instructions to the jury, meaning that the jury’s verdict might have been based on the gun being hidden at the scene of the argument, or while Senn was in the vehicle driving away from the scene. What applies to and should concern firearms owners in Nebraska is the court also stated that the law against carrying a concealed weapon does not require a driver be able to access the concealed weapon while driving, if he might be able to access it while the vehicle is stopped.
How could they have arrived at this conclusion? The Court relied on a legal standard set out in State v. Saccomano (1984), which held that “[a] weapon is concealed on or about the person if it is concealed in such proximity to the driver of an automobile as to be convenient of access and within immediate physical reach.” Pointing to a 1969 decision, State v. Goodwin, the justices also noted that even a handgun in a locked glove compartment could be considered “concealed on or about the person of the driver because it was concealed in an accessible location over which the defendant had control.”
In the end, the question before the state’s highest court was whether or not the lower appeals court had acted properly in overturning the trial conviction. The standard there is a low one: whether or not a rational jury could have found that the elements of the crime were proven, based on the evidence provided to them at trial. The Supreme Court determined that a reasonable jury could have convicted, and so the appeals court was overruled.
The practical result of this court case is that it illustrates just how broad the criminal law banning concealed weapons can be. According to this ruling, basically any concealable weapon that is not at least partially in view may be considered concealed and in violation of the law. Even if the person cannot readily access it at the time they are arrested, the jury may, according to this decision, conclude the weapon was “on or about their person” at some previous time or place and find the person guilty.
How might this apply to you? Given the ruling, there is a distinct risk that common, routine transportation of firearms by otherwise law abiding citizens is a crime. It could be applied to a person carrying a new, boxed handgun out to their car after making a purchase. Or a person who retrieves a cased, locked handgun from the trunk of a parked car at the curb in front of his home, to move it indoors. It might even include a person who has purchased a firearm and is carrying it, cased and unloaded, into a shooting range to take their Concealed Handgun Permit shooting test, since many ranges ask that all firearms be cased except when at the firing line. Unless some part of the weapon is visible, there is a real danger that a zealous prosecutor might charge them with a crime, and according to the Senn decision that prosecutor may very well secure a conviction that would withstand the appeals process. This is especially concerning for residents of cities like Omaha and Blair, which prohibit open carry, and for drivers of minivans and hatchbacks, which have no storage space that is not part of the passenger compartment. For those Nebraskans, there may be no way to transport a handgun that does not expose them to risk of arrest and prosecution for carrying a concealed weapon.
Nebraska legislators should protect Nebraska firearms owners by passing legislation that honors the state’s constitutional promise that “the right to keep and bear arms for security or defense of self, family, home, and others, and for lawful common defense, hunting, recreational use, and all other lawful purposes… shall not be denied or infringed by the state or any subdivision thereof.” A law that potentially makes a criminal out of nearly every handgun owner who does not hold a Concealed Handgun Permit is a law that should not be on the books in Nebraska.
Disclaimer: This article is provided for informational purposes only and not for the purpose of providing legal advice.