Wednesday, September 14, 2016

Overview of the Changes to Idaho's Concealed Carry Laws

DISCLAIMER: I am not your attorney. The following is not legal advice and should not be considered legal advice. If you want legal advice, hire an attorney. Also, this is a discussion of Idaho law, which is different from the laws of other states or locales.

Because there have been significant changes to Idaho's concealed carry laws since I first obtained a concealed carry license, and especially this year with the passage of a "constitutional carry" provision, I thought it was time to re-familiarize myself with the current code provisions on concealed carry.

Idaho's law on concealed carry is spread across several code sections, but the primary statute governing concealed carry of weapons is currently found in Idaho Code § 18-3302.

As would be expected in a territory and, later, state which initial population boom was due to gold and silver mining rushes, much of Idaho's early legal code were borrowed from California, including many of the state's penal laws. Until the last few decades, the law on concealed carry of weapons was fairly static and straightforward. For instance, in the late 1970's, section 18-3302 provided:
If any person, excepting officials of a county, officials of the state of Idaho, officials of the United States, peace officers, guards of any jail, or any officer of any express company on duty, shall carry concealed upon or about his person, any dirk, dirk knife, bowie knife, dagger, sling shot, pistol, revolver, gun or any other deadly or dangerous weapon within the limits or confines of any city, town or village, or in any public assembly, or in any mining, lumbering, logging, railroad or other construction camp, public conveyances or on public highways within the state of Idaho, or shall, in the presence of one (1) or more persons, exhibit any deadly or dangerous weapon in a rude, angry or threatening manner, or shall have or carry such weapons upon or about his person when intoxicated or under the influence of intoxicating drinks, or shall, directly or indirectly, sell or deliver, loan or barter to any minor under the age of sixteen (16) years any such weapon without the consent of the parent or guardian of such minor, he shall, upon conviction, be punished by a fine of not less than $25.00 nor more than $200.00, and by imprisonment in the county jail for a period of not less than twenty (20) days nor more than ninety (90) days: provided, however, that any person shall be allowed to carry any of the above weapons in the places mentioned above on securing a permit from the sheriff of the county after satisfying the sheriff of the necessity therefor.
(As quoted in State v. McNary, 100 Idaho 244, 596 P.2d 417 (1979)).

This rather simple statute was subsequently amended over time, with certain provisions split out into individual subsections and, eventually, their own code sections and greatly expanded or embellished, such that now there are separate code sections specific to the sale of weapons to minors, carrying concealed weapons while under the influence, other prohibited conduct, possessing weapons or firearms on school property, possession of weapons by a minor, prohibition on the possession of certain weapons by a minor, allowing the carrying of concealed weapons by retired law enforcement officers, exhibition or use of a deadly weapon, aiming firearms at another, and so on. Other amendments to the law were changes to clarify that it was illegal to carry a concealed weapon anywhere in a vehicle, and exclusion for rifles and shotguns, and other small changes over the years. Of course, the jail sentence and fine for violation of the statute(s) has also increased.

Many of the expansions and additions were due to efforts to make the state law conform with federal law or follow national trends of restricting the possession or use of concealed weapons. These were generally driven by law enforcement or school administrators. Other changes, however, were the direct result of push back from the public. One of the most notable amendments to the concealed carry laws occurred in 1990, which first provided for the issuance of concealed carry licenses under a "shall issue" standard, as well as splitting out the prohibitions against sales to minors, carrying weapons under the influence of alcohol or drugs, and prohibited conduct (e.g., prohibiting carrying a concealed weapon into a court, jail or prison) into their own separate code sections. The Idaho Attorney General's office issued a formal opinion that suggested that the concealed carry statutes were unconstitutionally vague because of the lack of guidance on procedures for revoking a license, which was corrected in a 1991 amendment to the statute.

In 1993, a rather stringent prohibition against carrying concealed weapons (and employing its own definition of what constituted a deadly or dangerous weapon) on school grounds or to school activities was enacted as Idaho Code § 18-3302D with the effect of disarming students. This section was subsequently amended in 1995 and 2000 to prohibit the carrying of any weapon (now defined by federal statutes rather than state law) by anyone, whether openly or concealed, on school property or to school events, with a cut-out eventually added for parents dropping off students from a vehicle.

However, with the exception of the "shall issue" provisions added in 1990, the most significant changes to the concealed carry laws came in 2015 and 2016.

2015 Changes:

The changes in 2015 were substantial enough that the legislature simply repealed the prior version of § 18-3302 and enacted a completely new statute. Most of the changes from prior law was to expand the procedures and protections for obtaining a standard concealed carry license. (A separate code section was added that provided for what is called an "enhanced license" which is necessary for reciprocal recognition in certain states that required more extensive training to obtain CCLs). Some of the changes to the statute were also intended to address the abuses of defining all sorts of knives and certain non-lethal weapons as "deadly or dangerous weapons" as had become the increasing practice of law enforcement, prosecutors, and the courts.

For instance, as to knives and non-lethal weapons, previous versions of the statute included within the definition of deadly weapons "dirk, dirk knife, bowie knife, dagger" or anything similar. Even someone with a cursory knowledge of these terms would recognize that the type of knife being described are all fixed bladed fighting knives of substantial blade length (over 6 or 7 inches, and generally over 10 inches in blade length) and double-edged (the bowie knife, properly, has at least the clip-point portion of the back edge sharpened). Certainly, the term as used would exclude knives that were designed and used as tools, cutlery, for hunting or fishing, and folding knives of any type. However, that was not how it was being applied by police, prosecutors and the courts, who had twisted the law to the point that nearly any sort of pocket knife, hunting knife, utility knife, etc., was considered to be a "dirk, dirk knife, bowie knife, [or] dagger." Thus, for most people, the significant change of 2015 had to do with making sure that "deadly weapon" did not include "(i) Any knife, cleaver or other instrument that is intended by the person to be used in the processing, preparation or eating of food; (ii) Any knife with a blade four (4) inches or less; or (iii) Any taser, stun-gun, pepper spray or mace." 

However, while carving out certain exceptions, the statutory definition of "deadly weapon" was also expanded to vaguely include "[a]ny other weapon, device, instrument, material or substance that is designed and manufactured to be readily capable of causing death or serious bodily injury; or ... [a]ny other weapon, device, instrument, material or substance that is intended by the person to be readily capable of causing death or serious bodily injury." Which gets us into the nebulous realm, similar to federal jurisprudence, where relatively innocuous objects could be a "deadly or dangerous" weapon because they could, in theory, draw blood or damage the victim's eyes (i.e., cause "serious bodily injury").

Another aspect of the law in 2015 was a more precise definition of "loaded" as it pertained to a firearm. Previously, the public perception was that "loaded" only included a round being chambered and ready to fire with a single pull of the trigger. Thus, even if a pistol had a loaded magazine, so long as the chamber was empty, it was "unloaded." Similarly, if a revolver was downloaded so that it could not be fired with a single pull of the trigger (or cocking and pulling the trigger once), it was generally considered "unloaded." (I have not found any cases that justify this supposition, but believe its origin may have been from State v. McNary, supra, where the court held that "[o]ne carries a weapon 'upon or about his person' not only when he physically is carrying it in his clothing or in a handbag of some sort, but also when he goes about with the weapon in such close proximity to himself that it is readily accessible for prompt use.") (underline added). However, the statute has now been clarified that a pistol with a loaded magazine inserted in it, or a revolver with any chambers loaded, is "loaded" for purposes of the statute.

2016 Changes:

The significant change to the law in 2016 was the inclusion of the erroneously termed "constitutional carry" provisions. That is, the law included an exclusion for carrying "[a] concealed handgun by a person who is: (i) Over twenty-one (21) years of age; (ii) A resident of Idaho;" and (iii) not otherwise disqualified from carrying a firearm under the statute. Basically, it allows the permitless carrying of a concealed handgun. Note the limitation, however: this exception is only for someone over 21 and only applies to handguns; it does not include knives, brass knuckles, or other weapons that might normally be concealed. 

The 2016 amendments also provided for an automatic restoration of the privilege to carry a concealed weapon to any person receiving a withheld judgment or suspended sentence for any felony or violent misdemeanor that had successfully completed probation.

Of course, in extending a privilege, the legislature also likes to take away rights. Thus, where as any person could previously carry a weapon concealed outside of city limits, the statute now only extended that privilege to "person[s] [ ] over eighteen (18) years of age and [ ] not otherwise disqualified from being issued a license under subsection (11) of this section."

From the source I was able to locate, as of July 1, 2016, the current version of Idaho Code § 18-3302 reads:
(1) The legislature hereby finds that the people of Idaho have reserved for themselves the right to keep and bear arms while granting the legislature the authority to regulate the carrying of weapons concealed. The provisions of this chapter regulating the carrying of weapons must be strictly construed so as to give maximum scope to the rights retained by the people.
(2)  As used in this chapter:
(a)  "Concealed weapon" means any deadly weapon carried on or about the person in a manner not discernible by ordinary observation;
(b)  "Deadly weapon" means:
(i)   Any dirk, dirk knife, bowie knife, dagger or firearm;
(ii)  Any other weapon, device, instrument, material or substance that is designed and manufactured to be readily capable of causing death or serious bodily injury; or
(iii) Any other weapon, device, instrument, material or substance that is intended by the person to be readily capable of causing death or serious bodily injury.
(c)  The term "deadly weapon" does not include:
(i)   Any knife, cleaver or other instrument that is intended by the person to be used in the processing, preparation or eating of food;
(ii)  Any knife with a blade four (4) inches or less; or
(iii) Any taser, stun-gun, pepper spray or mace;
(d)  "Firearm" means any weapon that will, is designed to, or may readily be converted to, expel a projectile by the action of an explosive;
(e)  "Loaded" means:
(i)   For a firearm capable of using fixed ammunition, that live ammunition is present in:
1.  The chamber or chambers of the firearm;
2.  Any internal magazine of the firearm; or
3.  A detachable magazine inserted in the firearm;
(ii)  For a firearm that is not capable of using fixed ammunition, that the firearm contains:
1.  A propellant charge; and
2.  A priming cap or primer cap.
(3)  No person shall carry concealed weapons on or about his person without a license to carry concealed weapons, except:
(a)  In the person's place of abode or fixed place of business;
(b)  On property in which the person has any ownership or leasehold interest;
(c)  On private property where the person has permission to carry concealed weapons from any person with an ownership or leasehold interest;
(d)  Outside the limits of or confines of any city, if the person is over eighteen (18) years of age and is not otherwise disqualified from being issued a license under subsection (11) of this section.
(4)  Subsection (3) of this section shall not apply to restrict or prohibit the carrying or possession of:
(a)  Any deadly weapon located in plain view;
(b)  Any lawfully possessed shotgun or rifle;
(c)  A firearm that is not loaded and is concealed in a motor vehicle;
(d)  A firearm that is not loaded and is secured in a case;
(e)  A firearm that is disassembled or permanently altered such that it is not readily operable; and
(f)  A concealed handgun by a person who is:
(i)   Over twenty-one (21) years of age;
(ii)  A resident of Idaho; and
(iii) Is not disqualified from being issued a license under subsection (11) of this section.
(5)  The requirement to secure a license to carry concealed weapons under this section shall not apply to the following persons:
(a)  Officials of a city, county or the state of Idaho;
(b)  Any publicly elected Idaho official;
(c)  Members of the armed forces of the United States or of the national guard when in performance of official duties;
(d)  Criminal investigators of the attorney general's office and criminal investigators of a prosecuting attorney's office, prosecutors and their deputies;
(e)  Any peace officer as defined in section 19-5101(d), Idaho Code, in good standing;
(f)  Retired peace officers or detention deputies with at least ten (10) years of service with the state or a political subdivision as a peace officer or detention deputy and who have been certified by the peace officer standards and training council;
(g)  Any person who has physical possession of his valid license or permit authorizing him to carry concealed weapons from another state; and
(h)  Any person who has physical possession of a valid license or permit from a local law enforcement agency or court of the United States authorizing him to carry concealed weapons.
(6)  The sheriff of the county of the applicant's residence or, if the applicant has obtained a protection order pursuant to chapter 63, title 39, Idaho Code, the sheriff of a county where the applicant is temporarily residing may issue a temporary emergency license for good cause pending review of an application made under subsection (7) of this section. Temporary emergency licenses must be easily distinguishable from regular licenses. A temporary emergency license shall be valid for not more than ninety (90) days.
(7)  The sheriff of a county, on behalf of the state of Idaho, must, within ninety (90) days after the filing of a license application by any person who is not disqualified as provided herein from possessing or receiving a firearm under state or federal law, issue a license to the person to carry concealed weapons on his person within this state. Such license shall be valid for five (5) years from the date of issuance.
(8)  The sheriff must make license applications readily available at the office of the sheriff, at other public offices in his or her jurisdiction and on the website of the Idaho state police. The license application shall be in a form to be prescribed by the director of the Idaho state police and must meet the following requirements:
(a)  The license application shall require the applicant's name, address, description, signature, date of birth, place of birth, military status, citizenship and the driver's license number or state identification card number if used for identification in applying for the license. Provided however, that if the applicant is not a United States citizen and is legally in the United States, the application must also require any alien or admission number issued to the applicant by United States immigration and customs enforcement or any successor agency;
(b)  The license application may ask the applicant to disclose his social security number but must indicate that disclosure of the applicant's social security number is optional; and
(c)  The license application must contain a warning that substantially reads as follows:

CAUTION: Federal law and state law on the possession of weapons and firearms differ. If you are prohibited by federal law from possessing a weapon or a firearm, you may be prosecuted in federal court. A state permit is not a defense to a federal prosecution.

(9)  The sheriff may require the applicant to demonstrate familiarity with a firearm and must accept any one (1) of the following as evidence of the applicant's familiarity with a firearm:
(a)  Completion of any hunter education or hunter safety course approved by the department of fish and game or a similar agency of another state;
(b)  Completion of any national rifle association firearms safety or training course or any national rifle association hunter education course or any equivalent course;
(c)  Completion of any firearms safety or training course or class available to the general public offered by a law enforcement agency, community college, college, university or private or public institution or organization or firearms training school, utilizing instructors certified by the national rifle association or the Idaho state police;
(d)  Completion of any law enforcement firearms safety or training course or class offered for security guards, investigators, special deputies, or offered for any division or subdivision of a law enforcement agency or security enforcement agency;
(e)  Evidence of equivalent experience with a firearm through participation in organized shooting competition or military service;
(f)  Is currently licensed to carry concealed weapons pursuant to this section, unless the license has been revoked for cause;
(g)  Completion of any firearms training or safety course or class conducted by a state certified or national rifle association certified firearms instructor; or
(h)  Other training that the sheriff deems appropriate.
(10) Any person applying for original issuance of a license to carry concealed weapons must submit his fingerprints with the completed license application. Within five (5) days after the filing of an application, the sheriff must forward the applicant's completed license application and fingerprints to the Idaho state police. The Idaho state police must conduct a national fingerprint-based records check, an inquiry through the national instant criminal background check system and a check of any applicable state database, including a check for any mental health records for conditions or commitments that would disqualify a person from possessing a firearm under state or federal law, and return the results to the sheriff within sixty (60) days. If the applicant is not a United States citizen, an immigration alien query must also be conducted through United States immigration and customs enforcement or any successor agency. The sheriff shall not issue a license before receiving the results of the records check and must deny a license if the applicant is disqualified under any of the criteria listed in subsection (11) of this section. The sheriff may deny a license to carry concealed weapons to an alien if background information is not attainable or verifiable.
(11) A license to carry concealed weapons shall not be issued to any person who:
(a)  Is under twenty-one (21) years of age, except as otherwise provided in this section;
(b)  Is formally charged with a crime punishable by imprisonment for a term exceeding one (1) year;
(c)  Has been adjudicated guilty in any court of a crime punishable by imprisonment for a term exceeding one (1) year;
(d)  Is a fugitive from justice;
(e)  Is an unlawful user of marijuana or any depressant, stimulant or narcotic drug, or any controlled substance as defined in 21 U.S.C. section 802;
(f)  Is currently suffering from or has been adjudicated as having suffered from any of the following conditions, based on substantial evidence:
(i)   Lacking mental capacity as defined in section 18-210, Idaho Code;
(ii)  Mentally ill as defined in section 66-317, Idaho Code;
(iii) Gravely disabled as defined in section 66-317, Idaho Code; or
(iv)  An incapacitated person as defined in section 15-5-101, Idaho Code.
(g)  Has been discharged from the armed forces under dishonorable conditions;
(h)  Has received a withheld judgment or suspended sentence for a crime punishable by imprisonment for a term exceeding one (1) year, unless the person has successfully completed probation;
(i)  Has received a period of probation after having been adjudicated guilty of, or received a withheld judgment for, a misdemeanor offense that has as an element the intentional use, attempted use or threatened use of physical force against the person or property of another, unless the person has successfully completed probation;
(j)  Is an alien illegally in the United States;
(k)  Is a person who having been a citizen of the United States has renounced his or her citizenship;
(l)  Is free on bond or personal recognizance pending trial, appeal or sentencing for a crime which would disqualify him from obtaining a concealed weapons license;
(m)  Is subject to a protection order issued under chapter 63, title 39, Idaho Code, that restrains the person from harassing, stalking or threatening an intimate partner of the person or child of the intimate partner or person, or engaging in other conduct that would place an intimate partner in reasonable fear of bodily injury to the partner or child; or
(n)  Is for any other reason ineligible to own, possess or receive a firearm under the provisions of Idaho or federal law.
(12)   In making a determination in relation to an applicant's eligibility under subsection (11) of this section, the sheriff shall not consider:
(a)  A conviction, guilty plea or adjudication that has been nullified by expungement, pardon, setting aside or other comparable procedure by the jurisdiction where the conviction, guilty plea or adjudication occurred or in respect of which conviction, guilty plea or adjudication the applicant's civil right to bear arms either specifically or in combination with other civil rights has been restored under operation of law or legal process; or
(b)  Except as provided for in subsection (11)(f) of this section, an adjudication of mental defect, incapacity or illness or an involuntary commitment to a mental institution if the applicant's civil right to bear arms has been restored under operation of law or legal process.
(13) A license to carry concealed weapons must be in a form substantially similar to that of the Idaho driver's license and must meet the following specifications:
(a)  The license must provide the licensee's name, address, date of birth and the driver's license number or state identification card number if used for identification in applying for the license;
(b)  The license must bear the licensee's signature and picture; and
(c)  The license must provide the date of issuance and the date on which the license expires.
(14) Upon issuing a license under the provisions of this section, the sheriff must notify the Idaho state police within three (3) business days on a form or in a manner prescribed by the Idaho state police. Information relating to an applicant or licensee received or maintained pursuant to this section by the sheriff or Idaho state police is confidential and exempt from disclosure under section 74-105, Idaho Code.
(15) The fee for original issuance of a license shall be twenty dollars ($20.00), which the sheriff must retain for the purpose of performing the duties required in this section. The sheriff may collect the actual cost of any additional fees necessary to cover the cost of processing fingerprints lawfully required by any state or federal agency or department, and the actual cost of materials for the license lawfully required by any state agency or department, which costs must be paid to the state. The sheriff must provide the applicant with a copy of the results of the fingerprint-based records check upon request of the applicant.
(16) The fee for renewal of the license shall be fifteen dollars ($15.00), which the sheriff must retain for the purpose of performing the duties required in this section. The sheriff may collect the actual cost of any additional fees necessary to cover the processing costs lawfully required by any state or federal agency or department, and the actual cost of materials for the license lawfully required by any state agency or department, which costs must be paid to the state.
(17)  Every license that is not, as provided by law, suspended, revoked or disqualified in this state shall be renewable at any time during the ninety (90) day period before its expiration or within ninety (90) days after the expiration date. The sheriff must mail renewal notices ninety (90) days prior to the expiration date of the license. The sheriff shall require the licensee applying for renewal to complete an application. The sheriff must submit the application to the Idaho state police for a records check of state and national databases. The Idaho state police must conduct the records check and return the results to the sheriff within thirty (30) days. The sheriff shall not issue a renewal before receiving the results of the records check and must deny a license if the applicant is disqualified under any of the criteria provided in this section. A renewal license shall be valid for a period of five (5) years. A license so renewed shall take effect on the expiration date of the prior license. A licensee renewing ninety-one (91) days to one hundred eighty (180) days after the expiration date of the license must pay a late renewal penalty of ten dollars ($10.00) in addition to the renewal fee unless waived by the sheriff, except that any licensee serving on active duty in the armed forces of the United States during the renewal period shall not be required to pay a late renewal penalty upon renewing ninety-one (91) days to one hundred eighty (180) days after the expiration date of the license. After one hundred eighty-one (181) days, the licensee must submit an initial application for a license and pay the fees prescribed in subsection (15) of this section. The renewal fee and any penalty shall be paid to the sheriff for the purpose of enforcing the provisions of this chapter. Upon renewing a license under the provisions of this section, the sheriff must notify the Idaho state police within five (5) days on a form or in a manner prescribed by the Idaho state police.
(18)  No city, county or other political subdivision of this state shall modify or add to the requirements of this section, nor shall a city, county or political subdivision ask the applicant to voluntarily submit any information not required in this section. A civil action may be brought to enjoin a wrongful refusal to issue a license or a wrongful modification of the requirements of this section. The civil action may be brought in the county in which the application was made or in Ada county at the discretion of the petitioner. Any person who prevails against a public agency in any action in the courts for a violation of this section must be awarded costs, including reasonable attorney's fees incurred in connection with the legal action.
(19)  A county sheriff, deputy sheriff or county employee who issues a license to carry a concealed weapon under this section shall not incur any civil or criminal liability as the result of the performance of his duties in compliance with this section.
(20) The sheriff of a county shall issue a license to carry a concealed weapon to those individuals between the ages of eighteen (18) and twenty-one (21) years who, except for the age requirement contained in section 18-3302K(4), Idaho Code, would otherwise meet the requirements for issuance of a license under section 18-3302K, Idaho Code. Licenses issued to individuals between the ages of eighteen (18) and twenty-one (21) years under this subsection shall be easily distinguishable from licenses issued pursuant to subsection (7) of this section. A license issued pursuant to this subsection after July 1, 2016, shall expire on the twenty-first birthday of the licensee. A licensee, upon attaining the age of twenty-one (21), shall be allowed to renew the license under the procedure contained in section 18-3302K(9), Idaho Code. Such renewal license shall be issued as an enhanced license pursuant to the provisions of section 18-3302K, Idaho Code.
(21) A person carrying a concealed weapon in violation of the provisions of this section shall be guilty of a misdemeanor.
(22) The sheriff of the county where the license was issued or the sheriff of the county where the person resides shall have the power to revoke a license subsequent to a hearing in accordance with the provisions of chapter 52, title 67, Idaho Code, for any of the following reasons:
(a)  Fraud or intentional misrepresentation in the obtaining of a license;
(b)  Misuse of a license, including lending or giving a license to another person, duplicating a license or using a license with the intent to unlawfully cause harm to a person or property;
(c)  The doing of an act or existence of a condition which would have been grounds for the denial of the license by the sheriff;
(d)  The violation of any of the terms of this section; or
(e)  The applicant is adjudicated guilty of or receives a withheld judgment for a crime which would have disqualified him from initially receiving a license.
(23) A person twenty-one (21) years of age or older who presents a valid license to carry concealed weapons is exempt from any requirement to undergo a records check at the time of purchase or transfer of a firearm from a federally licensed firearms dealer. Provided however, a temporary emergency license issued pursuant to subsection (6) of this section shall not exempt the holder of the license from any records check requirement.
(24) The attorney general must contact the appropriate officials in other states for the purpose of establishing, to the extent possible, recognition and reciprocity of the license to carry concealed weapons by other states, whether by formal agreement or otherwise. The Idaho state police must keep a copy and maintain a record of all such agreements and reciprocity recognitions, which must be made available to the public.
(25) Nothing in subsection (3) or (4) of this section shall be construed to limit the existing rights of a private property owner, private tenant, private employer or private business entity.
(26) The provisions of this section are hereby declared to be severable and if any provision of this section or the application of such provision to any person or circumstance is declared invalid for any reason, such declaration shall not affect the validity of remaining portions of this section.


As noted, however, this is not all the laws concerning the carrying or use of a weapon. For instance, there are many other code sections, including specific sections that govern the carrying of weapons in certain locations, including schools. And there are rules and principles in common law that may impose or govern the imposition of liability for carrying or use of a firearm.

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