Man allegedly arrested for defending his land in NY

[nortatoga]

NYS will never charge anyone with Open Carry as they will not open that can of worms!!!!!!!!!

 

[Robin]

Legal, illegal? It's what your masters say it is.
Robin

 

[Chevusa]

Why the property owner didn't call the police himself to have that person removed?
And if you have a pistol permit and you carry your weapon according to the license (concealed )... then no see, no harm.
And because that person can say whatever TF they want and if you don't have a video... you know...
even if you end up getting out of criminal trouble nobody is saving you from the headaches and
legal fees, etc...
people forget the most important weapon one has is one's brain .... but we seem to be low on stock right now.

The problem is a lot of people incriminate themselves when they should just keep quiet. They just can't help themselves. The cops show up and they can't wait to start talking and telling their story. I'm sure the guy gave the cops all they needed to arrest him.

 

[spat]

Okay. And we can agree that penal law 265 is what does not forbid it by law since long guns aren’t firearms correct?

You are correct.

Answer this then, what class of crime is OC ? misdemeanor A ? felony D ? what is it ?

 

[Chevusa]

Sounds like it was made up, either in part or in whole. Tons of information missing. Also someone on your property isn't criminal trespass (unless he scaled a fence). There is a difference between criminal trespass and trespass. Guy sounds like an idiot if this actually happened.

 

[Chevusa]

If it's in your home, and someone is trespassing, drawing isn't unreasonable to do, from what I understand. It's very reasonable to immediately fear for your life if you hear someone trespassing in your home.

Someone walking onto your property isn't even a crime. It's a violation level offense. Good luck drawing a gun in that case. It'll be the last time you do it. The "I feared for my life" isn't going to go over well if the person is unarmed. We are talking about outside the house. Burglary is another story all together.

 

[BDinPutnam]

Someone walking onto your property isn't even a crime. It's a violation level offense. Good luck drawing a gun in that case. It'll be the last time you do it. The "I feared for my life" isn't going to go over well if the person is unarmed. We are talking about outside the house. Burglary is another story all together.

I have to imagine at least some of this is situational.

You have to go well out of your way to come to my house. Past many signs that tell you not to.

Hell, the insurance appraiser when we bought the place called my wife from the street and asked if it was ok for him to come up.

 

[carpediem]

Some years ago I was deer hunting on private property. I was hunting with the caretaker of several hundred acres of privately owned land. The owner is a former attorney and I believe judge in the Binghamton area. Well, that year he happened to be on his property at the start of deer season, and he came walking right up to me with a large holstered revolver in open carry. Tells me it is legal on your property. I am sure you will have a reason why he can do it but I can't. But there you go.

Edit, for clarification, he regularly walked his land armed, regardless of the season. Said "the bears and coyotes aren't going to make a meal outta me!"

 

[Criticalt]

Sounds like it was made up, either in part or in whole. Tons of information missing. Also someone on your property isn't criminal trespass (unless he scaled a fence). There is a difference between criminal trespass and trespass. Guy sounds like an idiot if this actually happened.

Correct
If you climb a fence ORRR walk past a properly placed and signed posted sign, it is criminal tresspass.
However, 99% plus of posted signs are not placed properly or signed properly.
I learned the hard way.

 

[Marine Cpl]

You are correct.

Answer this then, what class of crime is OC ? misdemeanor A ? felony D ? what is it ?

Misdemeanor. If you read Penal 400, it says that any violation of it is a misdemeanor.

You are exempt from prosecution via penal law 265 but failure to abide by 400 is a misdemeanor.

 

[Marine Cpl]

As far as sheriffs, cop friends, ect, they do not know the laws. What’s accepted because it isn’t enforced (open carrying on private land or when hunting) becomes them saying that it’s legal but they cannot ever point to where there is an exemption to open carry in penal law 400.

 

[Chevusa]

Correct
If you climb a fence ORRR walk past a properly placed and signed posted sign, it is criminal tresspass.
However, 99% plus of posted signs are not placed properly or signed properly.
I learned the hard way.

The penal law makes no mention of posted signs. The only elevation is for scaling a fence, school building, public housing or doing so while possessing weapons. Your signs mean nothing in this case.

Article 140 | NYS Penal Law |Burglary Criminal Trespass Laws

Burglary - enters or remains unlawfully with intent to commit a crime therein. Criminal Trespass. Possession of Burglars's Tools. Redio Devices | NYS Laws

ypdcrime.com

 

[Chevusa]

I have to imagine at least some of this is situational.

You have to go well out of your way to come to my house. Past many signs that tell you not to.

Hell, the insurance appraiser when we bought the place called my wife from the street and asked if it was ok for him to come up.

Could be but it doesn't change what is written in the law. Your argument that you pulled a gun because your driveway is long, and you have a sign up isn't going to play well in court. Also the fact that you have signs up doesn't mean anything. It is still only a violation and you still are going to be in a lot more trouble than the "trespasser" if you do it. The trespass law does not mention or recognize a posted sign.

 

[Robin]

You don't need posted signs in New York. It is up to the individual to know where he is and seek permission. It really is that simple.
Robin

 

[spat]

Misdemeanor. If you read Penal 400, it says that any violation of it is a misdemeanor.

You are exempt from prosecution via penal law 265 but failure to abide by 400 is a misdemeanor.

And what provision of PL400 are you violating ?

It says you may have and carry concealed. It doesn't prohibit anything else.

Where does it say you're allowed to disassemble your handgun to clean it on your kitchen table, that's certainly not "carrying concealed" either.

 

[Marine Cpl]

And what provision of PL400 are you violating ?

It says you may have and carry concealed. It doesn't prohibit anything else.

Where does it say you're allowed to disassemble your handgun to clean it on your kitchen table, that's certainly not "carrying concealed" either.

To possess and carry a firearm which is a pistol or revolver is illegal according to Penal Law 265 correct? I’m going to assume that you know that.

At the end of Penal Law 265 under the exemptions section it says that those licensed under Penal Law 400 are exempt from Penal Law 265 correct? I’m going to assume that you know that.

Now, what are you exempted for under Penal Law 400? Answer. “To have and Carry Concealed.” Did you get that? To have (possess) and carry concealed.

Does it say to have (possess) and carry concealed and openly? No. It does not. Penal law 400 only gives you an exemption to have and carry concealed. Those are the only two exemptions you have.

Now if you read further into penal law 400, it says that failure to abide by any of the provisions listed in penal 400, it is a Class A Misdemeanor.

That’s why every lawyer says the same thing I’ve been saying. But since you want something different, it’s as you say.

 

[spat]

To possess and carry a firearm which is a pistol or revolver is illegal according to Penal Law 265 correct? I’m going to assume that you know that.

At the end of Penal Law 265 under the exemptions section it says that those licensed under Penal Law 400 are exempt from Penal Law 265 correct? I’m going to assume that you know that.

Now, what are you exempted for under Penal Law 400? Answer. “To have and Carry Concealed.” Did you get that? To have (possess) and carry concealed.

Does it say to have (possess) and carry concealed and openly? No. It does not. Penal law 400 only gives you an exemption to have and carry concealed. Those are the only two exemptions you have.

Now if you read further into penal law 400, it says that failure to abide by any of the provisions listed in penal 400, it is a Class A Misdemeanor.

That’s why every lawyer says the same thing I’ve been saying. But since you want something different, it’s as you say.

You claim "every lawyer" agrees with you, but I've never seen any evidence of it.

So, if you are right, am I breaking the law when I clean my G26 ?

 

[Marine Cpl]

You claim "every lawyer" agrees with you, but I've never seen any evidence of it.

So, if you are right, am I breaking the law when I clean my G26 ?

No. You have an exemption to have it. You aren’t carrying it.

 

[spat]

No. You have an exemption to have it. You aren’t carrying it.

Oh, and how is OC not "having" it ?

What is the difference between "having" and "possessing" it ?

 

[E the massive]

Maybe it was an easement.

 

[Marine Cpl]

Oh, and how is OC not "having" it ?

What is the difference between "having" and "possessing" it ?

The penal law makes a distinction between to have and to carry. You should really read it.

 

[spat]

The penal law makes a distinction between to have and to carry. You should really read it.

That's not what I asked.

I asked what the difference between "having" and "possessing" was.

 

[libertysnake]

Someone walking onto your property isn't even a crime. It's a violation level offense. Good luck drawing a gun in that case. It'll be the last time you do it. The "I feared for my life" isn't going to go over well if the person is unarmed. We are talking about outside the house. Burglary is another story all together.

I'm talking about burglary specifically. Middle of the night, someone is in your home who isn't supposed to be there and broke in.

We're on the same page outside the home.

 

[spat]

I'm talking about burglary specifically. Middle of the night, someone is in your home who isn't supposed to be there and broke in.

We're on the same page outside the home.

Burglary is specifically called out in article 35 as a "deadly force authorized" situation.

You do not even need to be in fear of serious injury, you just need to believe that deadly force is necessary to prevent the commission of the crime.

There isn’t much ambiguity there.

 

[libertysnake]

Burglary is specifically called out in article 35 as a "deadly force authorized" situation.

You do not even need to be in fear of serious injury, you just need to believe that deadly force is necessary to prevent the commission of the crime.

There isn’t much ambiguity there.

I believe you're referring to:

3. A person in possession or control of, or licensed or privileged to
be in, a dwelling or an occupied building, who reasonably believes that
another person is committing or attempting to commit a burglary of such
dwelling or building, may use deadly physical force upon such other
person when he or she reasonably believes such to be necessary to
prevent or terminate the commission or attempted commission of such
burglary.

Honestly, if they're leaving with a TV, fuck it. The cost of the TV is less than the several grand in legal fees minimum I'd pay, on top of time out of work, dealing with using deadly force.

I personally consider it only a cost / benefit in a scenario in which they're more interested in coming at me than leaving with the stuff. That's the only time it's so clear cut that it's going to be open and shut.

 

[spat]

I believe you're referring to:



Honestly, if they're leaving with a TV, fuck it. The cost of the TV is less than the several grand in legal fees minimum I'd pay, on top of time out of work, dealing with using deadly force.

I personally consider it only a cost / benefit in a scenario in which they're more interested in coming at me than leaving with the stuff. That's the only time it's so clear cut that it's going to be open and shut.

If you're confident they're leaving with the TV, you're absolutely right.

But if you're not sure, it's a hell of a risk either way.

 

[libertysnake]

If you're confident they're leaving with the TV, you're absolutely right.

But if you're not sure, it's a hell of a risk either way.

First of all, until I'm sure, I'm at least holding the pistol at the ready.

If they in any way turn towards me, I'm at least aiming it at them.

And if they move towards me, despite me probably telling them to not fucking move by this point, then I'm firing.

That's the mental scenario how I see it.

 

[Chevusa]

I'm talking about burglary specifically. Middle of the night, someone is in your home who isn't supposed to be there and broke in.

We're on the same page outside the home.

The thread was specifically about someone wandering onto your land. Nobody debates that you are clearly justified to shoot someone who is inside your home.

 

[Chevusa]

No. You have an exemption to have it. You aren’t carrying it.

While I see both sides of this argument, by the logic of what you just said I could go to the bar and place my pistol on the bar in front of me. I’m not carrying it at that point, but I have it. According to your statement that is not illegal or a problem.

 

[Chevusa]

The whole “carry concealed” part was always the forbidden thing to do. It was considered most dangerous. I believe that is why it specifically says you CAN carry concealed. In history you were always to carry openly so people knew you were armed. They didn’t want any surprises.

To have and carry concealed is an interesting choice of words. Why doesn’t it just say to carry concealed? Why does it mention to have?

I see both sides of this argument and haven’t made a definitive decision on what I think about it yet.

Also some of you should take it easy on the “violations of PL 400 are misdemeanors”. The courts have ruled numerous times that under the law the licensing officer has the power to impose restrictions. By the same logic as if you open carry it is a misdemeanor, if you carry outside of the restrictions it is also a misdemeanor. You can’t have it both ways. They are empowered to do it in accordance with PL 400 and you are violating it. Pick a side and stick with it. You can’t flip flop based on what fits your motives, desires, or opinions. It either is or it isn’t. It can’t only be so sometimes.