In Maine, you are allowed to carry an exposed firearm. This means it is perfectly legal and acceptable to carry a firearm openly, but not concealed.  Concealed guns are another matter and a permit is needed.  Those charged with carrying a concealed firearm in Maine need to understand what the law is actually stating.  Many individuals are under the impression it is not worth it to hire a lawyer when charged with carrying a concealed weapon.  However, a good Maine criminal defense attorney will review the evidence and understand the fine nuances of the law.  This understanding and probing questions maybe the key to your freedom.  Allow me the chance to share a recent case of mine, where my client was charged with carrying a concealed firearm.  The prosecutor refused to dismiss and my client was not going to plead guilty.  We had a trial and I was able to make the argument, that as a matter of law this case should be dismissed. The Judge agreed with me and dismissed the case.

Maine Gun Laws Provide Guidance on Carrying Concealed Firearms

In Maine, you have a right under our State Constitution to openly carry any legal firearm, but there is clear guidance around the threatening display of or carrying a concealed weapon.  Let’s take a moment to review the statute.

Statute: 25 M.R.S.A. § 2001-A

Threatening display of or carrying concealed weapon

1.         DISPLAY OR CARRYING PROHIBITED. A person may not, unless excepted by a provision of law:

B.        Wear under the person’s clothes or conceal about the person’s person a firearm, slingshot, knuckles, bowie knife, dirk, stiletto or other dangerous or deadly weapon usually employed in the attack on or defense of a person.

Maine is an “Open Carry” State.

Maine is an “Open Carry” state. Sometimes the Police have a hard time understanding that, especially in Portland.  This last spring, my client, who is from Ellsworth, was in the Portland area and staying at a hotel in Westbrook.  He is a Marine Veteran who served in Vietnam, and openly carries a Colt 1911. He was in Portland with an acquaintance and after they had finished dinner at a restaurant they each went back to the hotel separately.  My client stayed at dinner longer and while walking back to the hotel he came across his friend who was being questioned by three officers from the Portland Police Department.  My client announced his presence to the police and told them that he was with the person they were questioning.  As we all know, no good deed goes unpunished.  The Police, whom after a minute of speaking to my client observed a “bulge” on my client’s waistline where his jacket sat, unzipped.  In reality what they saw, was the barrel of his 1911 in his holster protruding out from under his jacket.  And after the officer questioned my client and agreed with him that it was a Colt 1911, the good officer arrested my client because it was “partially concealed”, as per the officer’s report.  Obviously my client verbally protested that his firearm was not concealed and was instead being openly carried.  This whole incident took place just outside the field of view on the video unit on the first Portland Police cruiser that had responded to the scene, the same cruiser that was being operated by the officer that arrested my client.  That officer knew the video unit was on, and even though the entire incident and conversation was recorded on audio, wasn’t it a bit strange that the officer never brought my client into the field of view of the video?  Wouldn’t that preserve on video the actual appearance of my client and whether or not his firearm was indeed concealed?  Sometimes police have too much to think about.

Just Plead Guilty and Go Away!

My client retained me the day he was released from Cumberland County Jail.  Since I frequently have cases involving Cumberland County Jail in one way or another, I know the video lay out of the jail.  When I had met with my client for the intake meeting, I had realized that he would have been captured on Cumberland County Jail video when he was brought in for processing.  That in addition to what I had “expected” to be on the cruiser video would have preserved my client’s appearance and what he had on for apparel the day he was arrested.  That’s critical evidence in a concealed firearm case.  Once I was retained, I made an evidence preservation request to the Cumberland County Jail to preserve that video.  My only standing order to my client was that he was to wear the exact same clothes he was wearing when he was arrested, holster and all, each and every time we go to Court on this.  Optimistically, I had hoped that the State might see the folly in their prosecution on this one, once they got a look at how obvious it was that the jacket could not conceal the holster, with or without a gun in it.  Instead, the State thought it was a good idea for my client to just plead guilty and pay a $500.00 fine.  That offer was soundly rejected and I began reviewing the discovery in preparation of trial.  As part of that discovery was the cruiser video I had mentioned earlier and was expecting.  Imagine my surprise and the red flags that were raised when the video of the arrest of my client never actually showed my client at all!

The Evidence.

One of the key reasons it is best to have a Maine Criminal Defense Attorney, is that your legal counsel is always evaluating the situation in terms of evidence. This includes what you have for evidence and what the State has for evidence.  In this case the State had the reports of the three officers, and the video from the police cruiser.  I had the same evidence, but in addition to that I had the video from Cumberland County Jail that actually depicted my client on it, plus as a “visual aid” for the jury, the clothes and holster that my client had on the night he was arrested.  Also as per the conversation contained on the video, the police were recorded agreeing with my client that his firearm was a Colt 1911 and that it was “partially” concealed on his person.  This begs a few obvious questions:  How can a firearm be partially concealed?  Something is either concealed or it is not, right?  Also, if it was concealed, why were the police so quick to agree that it was a Colt 1911?

The Case Goes to Trial.

At Jury Selection, when faced with trial the State offered a no cost filing.  A filing is basically a dismissal if you behave for period of time.  In this offer the period was for six months.  My client turned it down flat.  His innocence was obvious and he wanted a dismissal.  (He probably wanted a written apology from the State as well!)  So we selected a Jury and went to trial.

The issue in this case was whether my client concealed his firearm on his person in violation of 25 M.R.S.A. § 2001-A.  You would think the meaning of conceal is pretty basic, but to the State, it was a term of art.  The Jury was to decide if the firearm was concealed on my client and to do that they needed a definition to go by.  Some case law proved helpful in this regard and the Prosecution and the Defense agreed on a definition.  For this case a concealed weapon meant:

“A weapon is concealed upon the person when it is not discernible by the ordinary observation of persons coming in contact with the person carrying it, casually observing him, as people do in the ordinary and usual associations of life.” State v. Gwinn, 390 A.2d 479, (ME 1978).

Knowing the facts of this case as I did, this was a winning definition!

At trial, the State argued to the Jury that this was a safety issue.  The public was in danger and the police were out protecting us.  I had a very different approach.  I liked my definition so much plus with the facts of this case, I started thinking why should I bring “facts” to the jury, if I can win this as a matter of law in front of the Judge?

In law, there is a something called a “directed verdict”.  In short, what it means is that once the evidence has been presented at trial, if that evidence when considered, establishes a fact or facts to an undeniable certainty, it no longer becomes a question to the jury about which “fact” is right, it becomes a question to the judge about “now that we have established this fact, what does the law say must happen?”

To get to this point I had thoroughly cross-examined each of the three officers to establish two facts; First, that the clothes and holster my client had on at trial were the very same items he had on when he was arrested, and second, that the arresting officer discovered the firearm on my client by visually observing it.  The first officer cross-examined was the arresting officer.  He didn’t want to, but after a pleasant walk through his report he admitted on the stand that he did indeed observe a bulge and a portion of the barrel coming from underneath my client’s jacket and arrested him because he believed the firearm to be partially concealed.  He also testified that he observed it by seeing it and that he was able to discern that it was a firearm through casual observation.  (Remember that definition!)  This officer did not have a good answer for how something could be partially concealed, something that defied the laws of physics.  But he was most helpful when he swore under oath that the clothes my client had on at trial were not the same from the night he was arrested and that the holster he had on was actually positioned higher up on my client’s body when he had arrested my client.  Really officer, so we have to take your word for it?  Incidentally, wasn’t your cruiser video on?  Didn’t it record the entire conversation?  Since you knew that your cruiser video was on and recording, why didn’t you display my client on the video, so we all could see these different items of clothes that you swear my client was wearing?  His answers were not helpful to the State.

The second officer decided to double down on the testimony of the first and swore to us that my client had a different holster and clothes on the night he was arrested.  Since I knew what was going to happen when the third officer was going to testify under cross-examination, I let that story stand, for the time being.

The third officer’s testimony was as critical to the Defense as the first officer’s testimony because the third officer was the fellow that transported my client to Cumberland County Jail to be processed.  So guess who was standing next to my guy each time he was depicted on the Cumberland County Jail video that I had for evidence.  When I had the Cumberland County Jail video on the screen in Court, he had no choice but to confirm that the clothes my client had on at trial were indeed the same ones he had on the night he was arrested.  Case over!

Once the State rested its case, I moved for a directed verdict on the basis of the evidence in the record.  My argument was simple:  The evidence taken at trial established beyond a certainty that when the arresting officer first noticed the firearm he did so by visually observing it and that he was able, through the course of casual observation, to discern that it was a firearm.  According to our definition: if the firearm was discernible by the officer coming in contact with my client carrying it, casually observed by the officer, then as a matter of law the firearm was not concealed.

What about the evidence concerning the clothes my client had on?  Why did I need to establish what he was wearing when he was arrested if I had the testimony from the officer regarding the observations of the firearm?  Simple, because visual aids help.  Not only do they help with Juries, but they help Judges too.  Once I had established that my client was wearing the same clothes at trail that he had on when he was arrested, it was pretty obvious from looking at him that the firearm would not have been concealed.  Plus this established that the credibility of the two officers that testified that my client was wearing different items of clothes, was flawed. The Jury could see it and the Judge could see it too.  More ammunition for my motion for directed verdict and if that got denied, then I always had the Jury.

The State had argued that the firearm was not readily discernable because the officers took over a minute to notice it on my client.  The presiding Judge was not convinced about that.  He agreed with me and pointed out to the State that the definition only required the weapon to be discernable, not readily or immediately discernable.  With the evidence in the record and our definition of “concealed” provided by case law, the Judge agreed with me that this wasn’t an issue of fact for the Jury any more, but rather a question of law, appropriate for the Court to rule on.  And rule on it the Court did, verdict for the Defense, case Dismissed after the conclusion of the State’s evidence at trial.

The Take Away Point

Its not often when a case gets taken away from the Jury.  But if you can win on the law, do it.