Back in March of 2010, this website reported on the case against Kurk Kirby: the Washington State resident who was arrested for openly carrying his .45 ACP Springfield XD into his neighborhood Albertson’s grocery store. I hadn’t even started reading The Truth About Guns yet, never mind reviewing firearms on TTAG’s behalf. But my fingerprints were all over the Kirby story. I am Kurk Kirby’s lawyer.
Thoughtful people of good will have differing opinions about the wisdom of openly carrying firearms. I leave that question for others to debate. Suffice it to say, Washington state does not prohibit open carry either by statute or case law. In theory, when an activity is not clearly illegal, the law should not punish people for doing it. In practice, Evergreen state prosecutors continue to push the limits of the law to beat back the scourge of informed, armed citizens exercising their Second Amendment rights.
That’s what happened to Kurk.
Never mind that Washington’s prohibition on open carry was repealed in 1999, making Washington an open carry state.
Never mind that Kurk was polite, cooperative and even friendly with the investigating officers.
Never mind that his chief accuser was a self-styled martial arts expert who’d been court-martialed out of the Marine Corps for selling drugs in the barracks.
Never mind that the other two accusers were the ex-Marine’s wife and friend.
Never mind that all the accusers initially said Kurk was doing nothing menacing or alarming at all.
Never mind that they waited nearly two weeks before they concocted a lurid tale of gun-slinging villainy that would have made Josey Wales choke on his tobacco spit.
Never mind that, of the hundreds of people in the shopping center that warm afternoon, only three other people even noticed that he was wearing a gun. (So much for the gun-slinging tomfoolery.)
And never mind that those three other people remembered Kurk as cheerful, polite and outgoing.
Never mind all that.Kurk was charged with ‘Unlawful Display of A Weapon’ because three people were frightened by the sight of a handgun. You don’t have to do anything frightening with a handgun, apparently, to violate the law; some hoplophobes are frightened merely by seeing one.
It took hundreds of hours of investigation and research, enormous material assistance from the NRA’s Civil Rights Defense Fund and twenty months, but the charges against Kurk Kirby have been dismissed.
Yesterday afternoon I joined my client at the evidence department of the Vancouver Police Department to retrieve his pistol, the very same .45 ACP Springfield XD pictured above. He even got all his bullets back, and that’s a good thing because Cor-Bon .45s are damned expensive.
Kurk has a clean record. He’s got his gun back. By any yardstick, his open carry saga belongs in the win column.
His accuser doesn’t seem to have done so well: he took some blistering heat from the Open Carry crowd, and the last time we interviewed him his business had taken a nose-dive. I’d be dishonest if I said it couldn’t have happened to a nicer guy.
And the other people who noticed him that day? Their story hasn’t gone so well either. Two of them were clerks at the tanning salon next to the accuser’s martial arts ‘dojo,’ and they were robbed earlier this year by a hooded meth tweaker who claimed to have a gun in his pocket. Nobody was hurt, but the scumbag has never been identified or caught.
Kurk wasn’t there that day, because I’d advised him to stay as far from the court-martialed ex-marine Karate Kid as possible until the case blew over. The clerks really wish he’d been there, because they doubt any tweaker would have robbed them if an athletic and conspicuously armed customer had been chatting with them in the lobby.
In the end, the city of Vancouver ‘protected’ itself from the (supposedly) palpitation-inducing sight of a man peaceably wearing a sidearm and minding his own business. I guess we’re all supposed to feel better about that.
The only thing I feel good about: my client (and now my friend) clearing his name and getting his gun back. Kurk’s a good guy, and a Springfield XD .45 is a damned nice gun. All’s well that ends well.
Bravo
and I trust a civil suit against the Karate Kid is next ?
On what legal theory?
It’s hard to sue somebody (and win) for being paranoid.
Yes, but filing a false complaint is actionable almost everywhere on many theories. Maybe not worth pursuing, though.
Ok. So this time this event concluded in an appropriate fashion.
I am still unsure what to make of open-carry proponents. It seems to be a numbers and location situation. One person carrying around outdoors amongst dozens of other parents at a kids’ soccer match. Probably not a big deal. Five people carrying while perusing books at the local library filled with after school kids of all ages? Would get noticed, and not in a good way. Why push it?
Gotta leave it with a “just don’t know”.
The more that people OC, And the more that these OCers handle other unarmed citizens well, the better we all are.
Remember, it’s the very perception that only criminals carry that has guns banned from court facilities, federal facilities, post offices, schools, etc..
Hooorah !!!!!!!!!!!!!
His accusers names should be posted everywhere, they should also have to pay for all expenses in court and investigating of the incident.
Good on you for winning, but hoe the hell did you get any assistance from the NRA?
I ask, because, to my knowledge, the only thing that the NRA has ever done WRT to Mark Fiorino’s case is to put out an ILA alert the day after it hit the papers wherein they begged for money.
As it stands, Fiorino was cleared a week or two ago, and is now in the process of filing a civil suit…
Good story. I hope Mr. Kirby was not out much money. Obviously his time and anxiety cannot be totaled, or ever reimbursed.
Well done Mr. Dumm. Hmm, that sounds weird. Anyway, I’m happy for you and your client. Will he open carry again? Does this open the way for others to OC?
Being very much in the discretion is the better part of valor camp, I would have skipped it. I just don’t like to draw any unnecessary attention to myself.
I think an organised march might be a better way. Didn’t some folks down in Florida do that? Does anyone know how that turned out?
Florida has had a few organized carry marches, and they’ve all (to my knowledge) gone off without incident. Honestly, I think they’ve done as much good (no incidents, good PR) as they’ve done harm (the whole “many open carry advocates seem a little loopy” thing). The reason is the justification and method that the march organizers use.
Florida doesn’t allow open carry everywhere, but FL statute 790.25 states: [it is lawful for the following persons to own, possess, and lawfully use firearms] [(3) (h) A person engaged in fishing, camping, or lawful hunting or going to or returning from a fishing, camping, or lawful hunting expedition;, so one march in Tampa had everyone meet at the local public waterfront park with their gun and their fishing pole, saddle up in the parking lot, and “march” through the park to the waterfront, fish for an hour or two, and then “march” back to their cars and be about their business.
It’s true there were no incidents, but at the same time, many “regular folks” just saw it as a quaint exercise that had no bearing or relation to the real world or the rights therein. I don’t know how much it actually helped the cause.
Oh well. My biggest fear as a CWP holder is being “made” and causing a stir, so I think an OC provision on the books would make CC a little easier in the case of an accidental revelation. It would be great to carry in a hip holster and just throw on a jacket to run an errand and if someone happened to spot my sidearm – no biggie.
Florida just put a law onto the books (went into effect October 1) that has to do with exactly that issue:
790.053 (1) It is not a violation of this section for a person licensed to carry a concealed firearm as provided in s. 790.06(1), and who is lawfully carrying a firearm in a concealed manner, to briefly and openly display the firearm to the ordinary sight of another person, unless the firearm is intentionally displayed in an angry or threatening manner, not in necessary self-defense.
Incidentally, although there is an open-carry movement here, there are people who are otherwise very pro-gun who oppose it. Many states that permit open carry also have laws that make it illegal to carry a firearm, open or concealed, onto private property (grocery stores, malls, etc) where “no firearms” signs have clearly been posted. We currently have no such law. If a private property owner sees you carrying concealed and asks you to leave, you do. If you stay, you can be charged with trespassing. There are people who think that if an open carry law was passed here, it would only be a matter of time before a “firearms sign” law was also passed, at which point even carrying concealed on those premises would be illegal, reducing the effectiveness and increasing the difficulty of carrying concealed.
Aha, this makes good sense. We should have such a law in SC.
“There are people who think that if an open carry law was passed here, it would only be a matter of time before a “firearms sign” law was also passed, at which point even carrying concealed on those premises would be illegal, reducing the effectiveness and increasing the difficulty of carrying concealed.”
This is in line my thinking on the whole OC issue. Why stir the pot when we seem to be getting along so well and making so much progress in the right direction?
The only reason we are “doing so well” as you put it, is *because* people have been stirring the post, and making waves.
That’s the way it is in PA…
” The clerks really wish he’d been there, because they doubt any tweaker would have robbed them if an athletic and conspicuously armed customer had been chatting with them in the lobby.”
Did they actually say that they’d wished he’d been there, or are you putting words in their mouths?
Their words, not mine. They told Kurk about it the next time they saw him.
Did they display any awareness of the irony?
I mean – you trash a guy and then wish he’d been around to help you when you really need him? And you want him not your dishonorably discharged martial arts jerk?
The irony is just dripping off of that.
I might not have been specific enough: the tanning salon employees were the only *other* people who even noticed his gun, and they noted how polite and friendly Kurk was. They weren’t the accusers, the Karate Kid and his minions were the ones who called the police.
I understand if this is a touchy subject, and I’m not asking you to reveal your fee schedule, but can we get some idea of how much Mr. Kirby is out of pocket to defend himself against a non-existent law and an overzealous prosecutor?
You said “hundreds of hours of investigation and research” and I see dollar signs. Please don’t take that as a slam against your chosen profession. My curiosity comes from the fact that I quite literally could not afford to defend myself against something like this. My lack of ability to fund a defense like Mr. Kirby received could potentially end up with a PD (or a limited budget private attorney) trying to get me to plead down to a lesser charge rather than fight it.
This is a very real concern for me, and the alternative of not carrying, or not carrying concealed is not really an alternative at all. I have the same concerns about a potential DGU. An overzealous prosecutor could turn a “good shoot” into a situation where I’m being sent to prison on a lesser charge simply because I couldn’t afford good legal representation.
I was thinking about how the anti open carry crowd sometimes suggests that carry ing guns will desensitize our children to guns, but in reality they are not born “sensitized” to guns they are “sensitized” to them by the media
Well put sir. Children brought up in farming or hunting homes rarely see guns as anything more than a tool, albeit a dangerous one. It’s the kids who only see guns in “Rambo” style films or “Bambi” we have to worry about.
I don’t OC myself because I generally want to be left alone. I’ve done it once on accident after shooting a pistol match. On my way home I decided to grab some groceries and forgot I was still OCing my gun. A security guard at the grocery store asked me to put it in my car, so I put my whole self in the car and went to a different grocery store and have been going there since.
I think the main benefit of OC is that it normalizes carrying in general. If you see a few people a month carrying a gun and somehow nobody gets shot in their vicinity, pretty soon you hardly notice people are carrying because that’s just what some people do.
I see Open-Carry as more of a crime deterent than CCW’s. Carrying conceiled means that your sidearm only comes of use once the situation has gotten bad. Open Carry serves to deter the entire situation before you are even put in a position of danger. The best defense is a good offense. Personal opinion, but thats why I open carry.
There is this strange phenomenon that occurs when people that think something is illegal or wrong spring into action. Cops get in the act and before you know it the prosecutor has a case in front of them that is not only un-winnable but doesn’t even exist. This seems like one of those cases.
I would suggest Kirby relocate but he probably likes the area and he is entitled to stay, armed daily as he is.
good job!!
I’m confused. I guess this went to trial after all?
Originally published October 13, 2010
http://www.columbian.com/news/2010/oct/13/open-carry-defendant-takes-diversion-agreement/
Diversion agreements don’t come from a trial. They’re often also referred to as PTD or PTI, which is Pre-Trial Diversion or Pre-Trial Intervention.
At the same time, in my mind the author stating “…the charges against Kurk Kirby have been dismissed” does not mean “pay a $485 fine, take a class, oh, and keep your nose clean for the next year, and THEN we’ll dismiss it.” I suppose the end result in both cases is a dismissal, but one option leaves me five hundred bucks lighter in the wallet, and taking a “gun safety” class that will probably cost me another $50 on top of that.
All for (possibly) violating an ambiguous law that relies on random bystanders to try to determine his state of mind.
Look at the publication date of the article I linked to, it is only 7 months after Kirby was arrested, not the 20 months referenced by the author, “It took hundreds of hours of investigation and research, enormous material assistance from the NRA’s Civil Rights Defense Fund and twenty months, but the charges against Kurk Kirby have been dismissed.”
Ah, the devil is in the details, isn’t it.
Mea culpa.
It happened in march if he just now got his pistol back, that is 20 months. He took the deal in October 2010, but it probably took this long to get the safety course and to have the charges dismissed.
That makes sense. Good job to Chris.
I forgot to give a *HUGE* tip ‘o the hat to NRA chief legislative counsel Chris Conte, and to the NRA Civil Rights Defense Fund. They were extremely generous in the assistance they provided to Mr. Kirby’s case, and we could not have gotten this outcome without their help.
I also forgot to tip my hat to Vernon McCray, a veteran local attorney here in SW Washington. He volunteered his time and efforts to our cause, and we couldn’t have done it without him. Kevin Starrett and the Oregon Firearms Federation also gave us a big helping hand in getting the charges dismissed.
And just what did it take to get them to give this case material support?
Last I’d heard from Fiorino, he hadn’t seen anything of substance from the NRA…
Chris Dumm, would it be possible for you to send me an email as I have a few questions about this case? As I understand it the original diversion agreement never actually occurred? Is that correct? The local media never did any follow up on this and are actually using this story to push their anti-gun agenda in another case from last weekend. It might also interest you as well but I would prefer to discuss that in a couple of emails back and forth rather than here. Thanks