Most of us are aware that it is lawful to open carry in Delaware and conceal with a Delaware CCDW if you're a resident or with a license from a state in a reciprocity agreement with Delaware if you're a non-resident.
We've confirmed that state parks and national parks (of which there are none in Delaware) are off-limits. We hold that it is illegal to carry a firearm into a court facility, police station or prison as it can be construed as 'contraband in a detention facility'. The City of Dover, of course, has a grandfathered ordinance requiring a CCDW to open or conceal carry and the County of New Castle has a known illegal ordinance banning the carrying of a firearm in their parks.
The topic of this discussion is focused more on transporting a firearm in the vehicle with concerns regarding openly carrying in a vehicle and potentially concealing in the vehicle without having your license.
Open carry in a vehicle in Delaware is lawful behavior -- the firearm must be in plain view. The unofficial direction we've obtained from the Attorney General's office is either to have your firearm on the passenger seat or on the dashboard. This can be problematic as sudden stops and sharp turns can cause your weapon to slide off the seat or, heaven forbid, out of your window.
It has been recommended to pick up a cheap "clip" holster so that you might be able to either holster your weapon in that and clip it to a fastened seatbelt in the passenger seat or affix heavy duty velcro (think EZ-Pass grade) to the dash and holster to keep it in place.
If you are not licensed to conceal, DO NOT:
The last point I'd like to make is the law enforcement officer 'double standard' for plain view and concealment. "Plain view" is just that -- something that a reasonable person would be able to visually see in plain view. However, something that is not in "plain view", e.g. if your center console is hiding your holstered weapon, this could be construed as concealed:
We've confirmed that state parks and national parks (of which there are none in Delaware) are off-limits. We hold that it is illegal to carry a firearm into a court facility, police station or prison as it can be construed as 'contraband in a detention facility'. The City of Dover, of course, has a grandfathered ordinance requiring a CCDW to open or conceal carry and the County of New Castle has a known illegal ordinance banning the carrying of a firearm in their parks.
The topic of this discussion is focused more on transporting a firearm in the vehicle with concerns regarding openly carrying in a vehicle and potentially concealing in the vehicle without having your license.
Open carry in a vehicle in Delaware is lawful behavior -- the firearm must be in plain view. The unofficial direction we've obtained from the Attorney General's office is either to have your firearm on the passenger seat or on the dashboard. This can be problematic as sudden stops and sharp turns can cause your weapon to slide off the seat or, heaven forbid, out of your window.
It has been recommended to pick up a cheap "clip" holster so that you might be able to either holster your weapon in that and clip it to a fastened seatbelt in the passenger seat or affix heavy duty velcro (think EZ-Pass grade) to the dash and holster to keep it in place.
If you are not licensed to conceal, DO NOT:
- Leave your weapon in your shoulder/belt holster.
- Put your firearm in your center console.
- Put your firearm in the glove compartment.
- Put your firearm under your seat.
Code: Select all
Here, the active phrase is on or about the person. Here is case law that clarifies that topic:§ 1442. Carrying a concealed deadly weapon (Title 11, Part I, Chapter 5, Subchapter VII)
A person is guilty of carrying a concealed deadly weapon when the person carries concealed a deadly weapon upon or about the person without a license to do so as provided by § 1441 of this title.
Carrying a concealed deadly weapon is a class G felony, unless the accused has been convicted within the previous 5 years of the same offense, in which case it is a class E felonyCode: Select all
Again, here we have the subjective phrase, "availability and accessibility" which is further defined:Whether concealed deadly weapon may be deemed to be "about" the person should be determined by considering the immediate availability and accessibility of the weapon to the person, which is a factual question. Dubin v. State, 397 A.2d 132 (Del. 1979).Factors determinative of accessibility. - Three factors are to be considered by the fact-finder in deciding the issue of whether a deadly weapon was accessible to the defendant and, hence, "about the person": (1) Would the defendant have to appreciably change position in order to reach the weapon? (2) could the defendant reach the weapon while driving? and (3) how long would it take for a defendant to reach the weapon, if the defendant were provoked? Dubin v. State, 397 A.2d 132 (Del. 1979).Here, we can see that some situations will be car and person dependent. While a person driving a compact vehicle would certainly be able to reach in the rear passenger-side seat to get his firearm, it may be much more difficult for someone in an SUV-style vehicle. Intent must be proved:
State must prove intent. - Where neither this section nor § 1448 of this title prescribes any state of mind as an element of the crime, the State, under § 251(b) of this title, must prove intent, knowledge or recklessness. Upshur v. State, 420 A.2d 165 (Del. 1980).It is, therefore, our recommendation that, if you do not hold a license to conceal in Delaware, that you keep your firearm on the front passenger seat, on the dash or unloaded and cased in the trunk/hatch area of your vehicle. It should also be made clear that the condition of the gun is immaterial:
It is quite immaterial whether a revolver is loaded or not, because such an instrument is commonly regarded as a deadly weapon without regard to its condition. If the absence of bullets would make the weapon a harmless one, then any condition that would prevent its being used at the time injuriously would have a like effect. State v. Quail, 28 Del. 310, 92 A. 859 (1914).With this law being over 110 years old, there is a goodly amount of case law available that's able to give us a good basis for understanding what we can and cannot do. We know the two 'safest' locations and I recommend the firearm be unloaded and cased in the trunk area of your vehicle if those two locations aren't feasible to you for your chances of not being arrested.
The last point I'd like to make is the law enforcement officer 'double standard' for plain view and concealment. "Plain view" is just that -- something that a reasonable person would be able to visually see in plain view. However, something that is not in "plain view", e.g. if your center console is hiding your holstered weapon, this could be construed as concealed:
"Concealed" weapon may be in "plain view" of police officer. - A weapon may be "concealed" within the meaning of this section, and still be in "plain view" for purposes of the search and seizure doctrine. Robertson v. State, 794 A.2d 267 (Del. 1997).As always, carry smartly; carry safely; carry always.
A weapon is "concealed" if it is hidden from the ordinary sight of another person, i.e., the casual and ordinary observation of another in the normal associations of life; however, since "ordinary observations" are not the same as the observations of an investigating police officer, a weapon concealed from an ordinary person may be in the plain view of a police officer. Robertson v. State, 794 A.2d 267 (Del. 1997).
Rob/Wynder
Delaware Open Carry, Founder
Notary Public
Delaware Open Carry, Founder
Notary Public
I'd stand or keep your strongside visible.
