Concealed weapons laws are designed to provide for public safety but can end up leading to criminal charges against law abiding citizens due to quirks of the law. The rules vary by state, and the laws in Nebraska are established by statute and case law.
What is a concealed weapon?
Nebraska Revised Statute §28-1202(1)(a) provides that any person who carries a weapon or weapons concealed on or about his person, such as a handgun, a knife, brass or iron knuckles, or any other deadly weapon, commits the offense of carrying a concealed weapon. A “knife” under Statute §28-1201(5) is considered any blade over 3.5 inches capable of cutting, tearing, or stabbing, and could lead to death or serious bodily injury.
When is a weapon considered concealed?
The Nebraska Supreme Court recently analyzed the scope of the concealed weapon statute in State v. Senn, 295 Neb. 315 (2016). In the Senn case, the defendant was convicted of carrying a concealed weapon in his car. In this case, the concealed weapon was a firearm in a plastic box located behind the passenger seat of his automobile, which was noticed by the law enforcement officer during a traffic stop.
Seeing a weapons case through the car window allowed the police to conduct a lawful search (a common scenario for when the police can search your car without a warrant), and the defendant was charged with carrying a concealed weapon. The defendant argued that he could not be guilty of carrying since the weapon was not on his person or next to him.
During trial, the court analyzed the concealed weapon statute in the context of an automobile, and held that “a weapon is concealed on or about a 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.” Senn, 295 Neb. at 320 (quoting from State v. Saccomano, 218 Neb. 435, 436 (1984)). The court also found that neither the concealed weapon statute nor case law requires that the weapon be within the defendant’s reach while driving in order to be considered on or about his person. Hence, a weapon can be considered concealed even when not within reach.
In regards to the term “concealment”, the court stated that a weapon is concealed when it is hidden from ordinary observation. (citing Kennedy v. State, 171 Neb. 160 (1960)). Under these standards, the court affirmed the defendant’s conviction of possessing a concealed weapon.
Is a partially visible weapon concealed?
The meaning of “concealment” was also explored in State v. Hill, 254 Neb. 460 (1998). Following a traffic stop, the defendant in Hill was charged with possessing a concealed weapon after a police officer saw the butt portion of a hand gun partially underneath the defendant’s right thigh and between the padded portion of the car seat. However, as the officer approached the vehicle (which was a convertible with the top down) the defendant stated, “Officer, I have a loaded gun in the car.” The officer replied, “I know. I can see it.”
However, unlike Senn which analyzed concealment under the Nebraska statute, the Hill court explored the term’s meaning under Omaha’s Municipal Code §20-192 which prohibited a person from purposely or knowingly carrying a weapon concealed on or about his/her person. In their analysis, the court stated that “absolute invisibility to other persons is not indispensable to concealment of a weapon on or about the person of a defendant, and that a weapon is so concealed when it is hidden from ordinary observation. Hill, 254 Neb. at 465 (quoting Kennedy, 171 Neb. at 170).
Due to the fact the police officer could see the weapon while standing outside the vehicle and that the defendant pointed out the weapon’s existence, the court held there was insufficient evidence to convict the defendant of carrying a concealed weapon.
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What if I have a Concealed Handgun Permit?
Concealed Carry Weapons Permits (aka “CCWs”) are designed to allow law-abiding citizens the right to carry a concealed weapon. While the application process is strict and must be renewed over time, it does provide a means to be able to carry a concealed handgun. With a valid permit, the permit holder may legally carry a concealed weapon on their person or in their immediate vicinity.
Nebraska Permits can be obtained through the State Patrol. To be eligible, the applicant must
- Be 21 years of age;
- Not have a felony conviction;
- Not have any convictions from Domestic Violence (as dictated in the Lautenberg Amendment);
- Not have been discharged dishonorably from the Armed Forces;
- Not be a fugitive, on parole, on probation, under house arrest, or under indictment for a crime punishable by imprisonment longer than a year;
- Meet additional provisions to demonstrate physical, mental, and moral requirements
If I have a permit, can I always carry?
A permit holder may carry in many circumstances but is not given carte blanche to carry at will. First, the person must always carry documentation when carrying a concealed weapon and must announce the presence of a handgun when in the presence of a peace officer or emergency services personnel. Failure to do either action is a misdemeanor.
Second, there is a list of restricted areas in Nebraska Revised Statute §69-2441 that do not allow concealed carry except by authorized security personnel. Among the restricted areas are:
- Police stations
- Courtrooms
- Schools
- Hospitals
- Places of Worship
Third, any business, property owner, or employer may restrict the right to concealed carry on the property under their control.
Fourth, a permit holder may not carry a concealed handgun while he or she is consuming alcohol or has alcohol or controlled substances in their system.
What are my options if charged with a concealed carry violation?
Your options will vary based on many important details about your case. You always have the option to fight the charges or accept a plea deal to a lesser sentence, and the best options for you will depend on your individual circumstances. Berry Law has fought for the constitutional rights of citizens for over 50 years and has seen a wide variety of gun charges brought unfairly by the government. If you would like more information, you can contact Berry Law at (402)-817-6469.
