State v. Doile

• Decision Date: 22 July 1982
• Docket Number: No. 53586,53586
• Citation: 648 P.2d 262,7 Kan.App.2d 722
• Parties: STATE of Kansas, Appellee, v. Curtis L. DOILE, Appellant.
• Court: Kansas Court of Appeals

Page 262

648 P.2d 262

7 Kan.App.2d 722

STATE of Kansas, Appellee, v. Curtis L. DOILE, Appellant.

No. 53586.

Court of Appeals of Kansas.

July 22, 1982.

Syllabus by the Court

K.S.A. 21-4201(1)(d ), prohibiting the carrying of firearms concealed on the person except by certain exempt persons or in specified exempt places, is a valid exercise of the police power and is not unconstitutional as overbroad, oppressive or unreasonable.

Stephen M. Joseph, of Joseph, Robison & Anderson, Wichita, for appellant.

Carl Wagner, Asst. Dist. Atty., Robert T. Stephan, Atty. Gen., and Clark V. Owens, Dist. Atty., for appellee.

Before FOTH, C. J., and REES and MEYER, JJ.

FOTH, Chief Judge:

After trial to the court defendant was convicted of "unlawful use of weapons" in violation of K.S.A. 1980 Supp. 21-4201(1)(d ), which proscribed:

"Carrying any pistol, revolver or other firearm concealed on the person except when on his or her land or in his or her abode or fixed place of business ...."

(The statute has since been amended in a minor way, basically to substitute "person's" for "his or her.") He appeals, challenging the constitutionality of the statutory subsection as an overbroad, oppressive and unreasonable exercise of the police power.

The facts are undisputed. In October, 1980, while a registered guest at a Wichita motel, defendant engaged in a verbal altercation with the motel's employees and manager. A pistol was observed in defendant's waistband, and the manager called the police. Upon their arrival they were steered to defendant in the manager's office. Asked where his weapon was, defendant said, "With me." A pat down revealed a loaded .357 magnum under defendant's jacket, in his waistband near the small of his back. The present charge and conviction followed, with the appeal limited to the single issue of constitutionality, duly raised below and renewed here.

Defendant's basic contention is that the statute offers a citizen no practical way to transport a weapon lawfully from one place to another-a citizen brandishing an "unconcealed" pistol on the streets of Wichita while going from home to office, he says, would soon draw the attention of the local constabulary. He relies heavily on City of Junction City v. Mevis, 226 Kan. 526, 601 P.2d 1145 (1979). Although we do not draw all the same conclusions from that case as does defendant, we agree it is almost dispositive of this appeal. At least it appears to confer standing on defendant to raise the constitutional issue even though he does not fall within the class of persons he claims is adversely affected by the claimed constitutional flaw.

Our analysis, however, starts with the earlier Junction City ordinance considered in City of Junction City v. Lee, 216 Kan. 495, 532 P.2d 1292 (1975). The ordinance then in question closely paralleled K.S.A. 21-4201 except that it contained a flat prohibition against carrying firearms on the person or in a vehicle, concealed or unconcealed. It made exceptions for, inter alia, hunters and fishermen and for carrying unloaded weapons to or from a gunsmith or dealer. Overall, the court noted, the ordinance imposed stricter controls over the possession of firearms than the statute. This feature of the ordinance was found unobjectionable, the court noting:

"Evaluation of the wisdom or necessity of the Junction City enactment of a weapons control ordinance more rigid than statutory law is not within our province, although the city fathers undoubtedly were aware of the fact that in situations where passions or tempers suddenly flare easy accessibility of weapons, whether carried openly or concealed, may contribute to an increased number of fatalities and further that their own problem is rendered more acute by the presence of an adjoining military reservation from whence combat troops trained in the use of handguns and knives sometimes repair to the city during off-duty hours. In an earlier era the cowboy entering the Kansas cowtown was frequently required to deposit his gunbelt with the marshal." 216 Kan. at 501-2, 532 P.2d 1292.

Implicit in this statement is a recognition of the amenability of weapon use to the general police power.

Four years later, when Mevis was decided, the court was looking at a significantly different Junction City ordinance. From our standpoint the most significant change was the deletion of the exemption for transportation to and from gunsmiths and dealers. It was still lawful to buy and sell guns, and to have them at home or at work, but there was in the court's view a flat prohibition against transporting them. As the court put it:

"The difficulty with the city ordinance in question here is that it clearly and unequivocally prohibits any non-exempt person within the city limits of Junction City from having in his possession a firearm,...