# Non-Res With a Question About Carrying a Firearm



## gitano (Oct 18, 2016)

I have received a cow elk permit and will be traveling to Utah to hunt elk this week. My son-in-law will be going with me as 'the mule'. He has never hunted and does not have a hunting license. I am aware of Utah's "Trial" program, and I am not asking about that. My question is:

_Is it legal for a person to carry a firearm in the field during hunting season when they do not have a license or permit to hunt?
_
The reasons I ask are:
1) In many states, it is _prima facia_ evidence of poaching if you are in the field with a firearm during hunting season and you do not have a hunting license and or permit.
2) That is not true in Alaska, where I am from.

It is not particularly important that my SIL carry a rifle while we hunt, but I would _like_ him to be able to if it is legal. On the other hand, I _really_ don't want to get on the wrong side of the law as a non-resident.

Sticking strictly to the LEGAL aspects of the matter (as opposed to the practical ones), is Hunter Orange LEGALLY required for my SIL even if he is not carrying a firearm? This is more of a question of curiosity, as we will both be wearing HO regardless of the law.

Thanks in advance,
Paul


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## Clarq (Jul 21, 2011)

Since your son-in-law is not technically hunting, he is not legally required to wear hunter orange. 

I can't definitively answer the question about carrying a gun during hunting season and without a license, but I don't recall ever seeing a regulation prohibiting doing so. 

There are several species that are open to hunting year-round, and without a license (including coyotes and jackrabbits). Take your son-in-law with you as a coyote hunter, and then he'll have a perfectly good reason to carry a gun.


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## Karl (Aug 14, 2016)

https://wildlife.utah.gov/rules-reg...-wildlife-resources-administrative-rules.html

The above link is to the Utah big game hunting regs.

I did not see anything specifically on point regarding your question.

You may want to call the DWR yourself and ask to speak to a game warden:

https://wildlife.utah.gov/about-us/contact-us.html


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## CAExpat (Oct 27, 2013)

As a new resident, I had found a few thing not specifically addressed in the regs. I came from a state where you're guilty and punished until proven innocent. I have found that Utah DWR has been exceptional with answering the many questions I needed clarification on. I would just call the main or one of the branch offices, someone will surely be able to help you. I hope you and your SIL enjoy your hunt and time in Utah, use this forum if you need any help while you're out here. Good luck!


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## Loke (Sep 7, 2007)

If your son-in-law has a concealed firearm permit, he is perfectly legal to have his personal firearm. If he is hunting upland game or coyotes he is perfectly legal to carry a firearm.


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## martymcfly73 (Sep 17, 2007)

Just don't call the Southern Region and ask them abt sheep regs and you should be golden.


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## BPturkeys (Sep 13, 2007)

I am pretty sure he can NOT carry a rifle. Maybe a handgun and for sure a shotgun if he bought a small game license. Something about temporary game preserve or something comes to mind.
BUT, one thing for sure, I WOULD NOT go by anything you read on this forum...ask the DWR people.


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## johnnycake (Jul 19, 2011)

BPturkeys said:


> I am pretty sure he can NOT carry a rifle. Maybe a handgun and for sure a shotgun if he bought a small game license. Something about temporary game preserve or something comes to mind.
> BUT, one thing for sure, I WOULD NOT go by anything you read on this forum...ask the DWR people.


Based on my cursory looking I cannot find anything in the proclamation, R657, or state statutes to back this up. I admit I was pretty cursory and could do a better search though. That being said, the OP should specifically call one of the wildlife conservation officer and not just the office. Heck, you might just call a bio from another region and they'll say you can shoot a bull with your cow tag.


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## DallanC (Jan 13, 2009)

I can find this in prior regulations, but not the 2016 regs... so did it change? Or was it accidently omitted? Best call the DWR for clarification.



> *Hunting on temporary game
> preserves*
> 50 CFR 20.21 and Utah Admin. Rule R657-6-6 and R657-5-7
> 
> ...


-DallanC


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## gdog (Sep 13, 2007)

gitano said:


> I have received a cow elk permit and will be traveling to Utah to hunt elk this week. My son-in-law will be going with me as 'the mule'. He has never hunted and does not have a hunting license.


Just curious...if no license or participation in the hunter trial program, what is the purpose/desire of him carrying a rifle?


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## TimJ (May 17, 2012)

One thing I noticed in the regulations is that areas become temporary game preserves specifically while a bull elk hunt is taking place and it says nothing about about general season deer hunts.

I think it would be best to call and clear it up to avoid an unpleasant experience in the field. If you are told you can carry a rifle in the field, I would be extra careful because of the all the controversy surrounding the Nebo sheep. I would write down the date, time, first and last name of the person you speak with.

Good luck out there.


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## bowgy (Oct 10, 2007)

"A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, *shall not be infringed*."

I don't see a problem with it. I am not a lawyer however.


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## Karl (Aug 14, 2016)

CAExpat said:


> As a new resident, I had found a few thing not specifically addressed in the regs. I came from a state where you're guilty and punished until proven innocent...


Yup tell me about it.

It is so good to have escaped from Communism and a Communist Governor, Legislature, and populace.

Now I know exactly how the East Germans felt with the destruction of the Berlin Wall in 1990.

Odd thing too -- the CCCP fell shortly thereafter in 1991.


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## johnnycake (Jul 19, 2011)

DallanC said:


> I can find this in prior regulations, but not the 2016 regs... so did it change? Or was it accidently omitted? Best call the DWR for clarification.
> 
> -DallanC


The sections cited to in the old regs are about the weapons you can use to take specific game (eg upland or big game). The language after that was DWR language that I don't think they had any legal foundation to write and somebody might have finally raised a big enough stink that they removed it.

But be sure to call the janitor in the Cedar City office to know what you are allowed to do in the Northern or Central regions of the State


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## gitano (Oct 18, 2016)

So... for everyone's information:

I called the Ogden office. (I have physically visited that office more than once, and they are wonderfully helpful and courteous people _there_. The opposite end of the spectrum from the people in the SLC office.) The Ogden staff were surprisingly coy, but here's the bottom line:

_Having a rifle in one's hands, and being in the woods, and it being hunting season IS prima facia evidence that you are "hunting".
_
They didn't want to put it that way exactly and chose instead to say "It will be up to you to prove that you were NOT hunting." Which, is by legal definition, "prima facia" (on the face of it) evidence of guilt. So I asked directly, "I will receive a citation and it will be up to me to prove I wasn't "hunting", correct?" Their response was "Yes".

In Alaska, prosecuting attorneys take sadistic pleasure in pointing out that "Wildlife Protection Troopers have no _obligation_ to tell you the truth about the game regulations. You have an obligation to obey them." So, while it is true that what I was told on the phone by "someone" in the Ogden office will not be an affirmative defense in a courtroom, I am willing to accept their 'legal advice'. My SIL will NOT be carrying a weapon.

Like I said, it's not a big deal, I would just have preferred that he was.

Thanks,
Paul


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## DallanC (Jan 13, 2009)

Make sure you have some targets stuffed in your back pocket?


-DallanC


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## Karl (Aug 14, 2016)

gitano said:


> So... for everyone's information:
> 
> I called the Ogden office. (I have physically visited that office more than once, and they are wonderfully helpful and courteous people _there_. The opposite end of the spectrum from the people in the SLC office.) The Ogden staff were surprisingly coy, but here's the bottom line:
> 
> ...


That sounds just like a particular very populous other state which shall remain nameless for the rest of my life.

But as far as rifles go, it seems to make perfect sense.

Your Alaska CCW LTC is still good here in Utah (they are both in the compact, unlike Calif, Ore, and NM which are not) so your friend may carry a pistol or revolver whether openly or concealed. Just not a rifle, I take it then.

Thanks for reporting back.


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## High Desert Elk (Aug 21, 2012)

So, you open carry in a bank (which you can unless stated otherwise), would it be _prima facia_ that you're commiting armed robbery?

Seems circumstantial to say you're poaching while carrying a rifle in the woods without a big game license during a hunting season...


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## martymcfly73 (Sep 17, 2007)

High Desert Elk said:


> So, you open carry in a bank (which you can unless stated otherwise), would it be _prima facia_ that you're commiting armed robbery?
> 
> Seems circumstantial to say you're poaching while carrying a rifle in the woods without a big game license during a hunting season...


I agree with this. What about coyotes? No license or season. Self defense against ISIS?


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## Karl (Aug 14, 2016)

High Desert Elk said:


> So, you open carry in a bank (which you can unless stated otherwise), would it be _prima facia_ that you're commiting armed robbery?
> 
> Seems circumstantial to say you're poaching while carrying a rifle in the woods without a big game license during a hunting season...


It is nice having an open carry law in effect, however it works better to the benefit of the concealed carry persons even still, because it protects them against complaints.

It is more discrete to carry concealed than openly, unless you are outside with a carbine, shotgun, or rifle.

I only carry openly when I am in the woodlands. And even then I always make sure I have a hunting license with me in case some game warden wants to see it. They only cost $50 bucks or so for residents and they avoid a lot of collateral issues.

The path of least resistance in this case saves a lot of headaches and grief.

Wanting to force the issue is going to take up a lot of time and possibly even legal fees. The only thing worse than lawyers is having to pay one yourself.


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## bowgy (Oct 10, 2007)

*"Having a rifle in one's hands, and being in the woods, and it being hunting season IS prima facia evidence that you are "hunting".*

That is just as stupid as saying that "Having a rifle in one's hands, and being in the woods, and it NOT being hunting season IS pima facia evidence that you are poaching"

What if you are not a hunter, never had a license, never had any reason to read the hunting guide book or rules. You are driving through the forest and decide you want to take a hike and decide to carry your gun with you for protection from whatever. What gives the DWR and the state legislature the right to infringe on our constitutional rights?

Seems like we are not in the USA any more Toto.

If you have a gun in the vehicle and you are spotlighting you are guilty of poaching with artificial light even if you haven't touched your gun.

If you are carrying a rifle during a hunt, which could be anywhere from August to the following January they should not be able to cite you unless they actually see you shooting something that is not legal to shoot.

That would also mean that none of you coyote hunters can go hunting coyotes during another big game hunt if you don't have a tag for the hunt that is going on.


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## elkantlers (Feb 27, 2014)

The last thing I want to do is pack a rifle around if I don't have a tag. Thats the best part about hunting with somebody else.


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## martymcfly73 (Sep 17, 2007)

bowgy said:


> *"Having a rifle in one's hands, and being in the woods, and it being hunting season IS prima facia evidence that you are "hunting".*
> 
> That is just as stupid as saying that "Having a rifle in one's hands, and being in the woods, and it NOT being hunting season IS pima facia evidence that you are poaching"
> 
> ...


100% this!


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## gitano (Oct 18, 2016)

1) I'm 65 years old. I have considerable experience in the courtroom. (However, I'm not a lawyer.) I've spit into the wind MANY times in my life. In the vast majority of those instances all I got for my efforts was spit on my face.
2) If folks from Utah don't like this particular police/legal view of the world, then they should change it. As the one with the hunting license and permit, I don't have a dog in this fight. In legal parlance, I don't have "standing". My son-in-law would have to legally challenge this CODIFIED LAW. (Prima facia evidence of hunting.) In order for him to have legal standing, he would HAVE to receive a citation. Otherwise, he has not been "harmed". Without harm, he has no standing. It's sad, but that's the way the law works in this country.
3) It has been my experience that prosecuting attorneys have an unholy relationship with judges. There are **** few judges that will rule against an assistant Attorney General or a Prosecuting Attorney.

I might remind "you all" of the recent events surrounding the "Sportsman's Permit Sheep incident". Put simply, it goes like this: "Badges? BADGES! We don't need no stinkin' badges!"

I'll leave the righteous indignation to men younger than I. I just want to go hunting.

Paul


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## bowgy (Oct 10, 2007)

[QUOTE
3) It has been my experience that prosecuting attorneys have an unholy relationship with judges. There are **** few judges that will rule against an assistant Attorney General or a Prosecuting Attorney.

Paul[/QUOTE]

I have heard that this is very true. I don't have personal experience but I know a guy quite well that spent a year in the Iron County hoosegow, he liked the booze a little too much, it was a few years back, judge is retired and different county attorney, anyway, he made friends with some of his fellow inmates and the ones from St George area said their attorney's wouldn't even come up to fight for them since it was too rigged.

And one more on topic with a smarter/better/more common sense judge. A friend of mine's little brother and his friends were archery hunting one year, the were done hunting at the end of the day, put their bows in cases and in the back of the pickup, as they were driving back to camp after dark some deer ran across the dirt road in front of them, the driver turned the truck so the headlights would hit the deer to see what they were, they didn't pile out of the truck and grab their bows, they just looked at the deer, down the road was a DWR LEO and he hit the lights and siren and gave them all tickets for spotlighting, when they went to court and told their story to the judge, she just shook her head and tore up the tickets and told them they were free to leave, case dismissed.


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## Karl (Aug 14, 2016)

gitano said:


> 1) I'm 65 years old. I have considerable experience in the courtroom. (However, I'm not a lawyer.) I've spit into the wind MANY times in my life. In the vast majority of those instances all I got for my efforts was spit on my face.
> 2) If folks from Utah don't like this particular police/legal view of the world, then they should change it. As the one with the hunting license and permit, I don't have a dog in this fight. In legal parlance, I don't have "standing". My son-in-law would have to legally challenge this CODIFIED LAW. (Prima facia evidence of hunting.) In order for him to have legal standing, he would HAVE to receive a citation. Otherwise, he has not been "harmed". Without harm, he has no standing. It's sad, but that's the way the law works in this country.
> 3) It has been my experience that prosecuting attorneys have an unholy relationship with judges. There are **** few judges that will rule against an assistant Attorney General or a Prosecuting Attorney.
> 
> ...


I admire the independent mindedness of the Alaskans.

It is similar to that of the Arizonans.

Utah is not that far behind them however.

You can still open carry here, as long as it requires 2 actions to fire a shot, such as chambering and then pulling the trigger. Works for me with my Ruger Mini 14 or my Mossberg 590.

And CCW LTC is "shall issue" (within 2 weeks) and only costs $40 dollars.

My class is tomorrow. I am looking forward to it.

The class I took before in another not so gun friendly state took 2 days and cost $300. And it was pass or fail. Half the class failed. Fortunately I passed.


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## johnnycake (Jul 19, 2011)

gitano said:


> 1) I'm 65 years old. I have considerable experience in the courtroom. (However, I'm not a lawyer.) I've spit into the wind MANY times in my life. In the vast majority of those instances all I got for my efforts was spit on my face.
> 2) If folks from Utah don't like this particular police/legal view of the world, then they should change it. As the one with the hunting license and permit, I don't have a dog in this fight. In legal parlance, I don't have "standing". My son-in-law would have to legally challenge this CODIFIED LAW. (Prima facia evidence of hunting.) In order for him to have legal standing, he would HAVE to receive a citation. Otherwise, he has not been "harmed". Without harm, he has no standing. It's sad, but that's the way the law works in this country.
> 3) It has been my experience that prosecuting attorneys have an unholy relationship with judges. There are **** few judges that will rule against an assistant Attorney General or a Prosecuting Attorney.
> 
> ...


I don't deny that you were told as you have reported, so please do not take this in that light. But did they tell you where this regulation is codified? My guess is that they will say it is prima facie evidence when asked but unless you can say 
"Per R657-X-X..." or "Utah Code Annotated XX.XX states..." then even if the CO gives you the ticket the prosecutor really shouldn't bring the case on that alone (in my opinion at least). Granted, avoiding the issue in the first place is the easiest answer and the one to result in the least amount of grief no doubt. But that shouldn't be a writ large for COs to write tickets at their fancy for people recreating in a perfectly legal manner. I'm curious what Vanilla might be able to enlighten us on this.

Then again, since you didn't pay tens of thousands at auction for your cow elk tag (at least I certainly hope not!) of course the DWR will want to grill your SIL and hang him out to dry for a legal action!

But in all seriousness, enjoy your hunt and what part of Alaska are you in? I'm in Anchorage and am always looking for another person to call up and see if they can join me for a hike/fishing/etc adventure.


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## johnnycake (Jul 19, 2011)

> 53-5a-102. Uniform firearm laws.
> (1)	The individual right to keep and bear arms being a constitutionally protected right under Article I, Section 6 of the Utah Constitution, the Legislature finds the need to provide uniform civil and criminal firearm laws throughout the state.
> (2)	*Except as specifically provided by state law, a local authority or state entity may not:*
> (a)	prohibit an individual from owning, possessing, purchasing, selling, transferring, transporting, or keeping a firearm at the individual's place of residence, property, business, or in any vehicle lawfully in the individual's possession or lawfully under the individual's control; or
> ...


And that is why I would be very interested to see if the DWR has such a regulation, because I cannot find it.


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## High Desert Elk (Aug 21, 2012)

My gut feeling behind this whole can't carry a rifle during a hunt without a license thing is a way to curb some "party hunting".

DWR won't tell you that, but I'll bet a double bacon green chili cheeseburger it is.

Does anyone have any first hand knowledge of a case involving this and a conviction of poaching?


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## gitano (Oct 18, 2016)

*johnnycake* - I concur with what you've written, but there are a great deal of "prima facia" regulations associated with driving, so precedence exists. Plus, there are many states that take this "can't be in the woods with a gun without a hunting license" stance. The prickly question arises when one brings up firearms and the second amendment.

I live in Wasilla. If you live in AK, why - 'pray tell' - are you on this website? (Just curious.) I'm here because I have relatives and friends that live in Utah and as can be seen, I intend to hunt and fish in Utah.
*
High Desert Elk* - I concur that the motivation is in large part to discourage "Party Hunting", but I think also to get people to buy hunting licenses as well.

Paul


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## johnnycake (Jul 19, 2011)

Gitano, I'm a Utah boy that just moved up this past spring. I'll be back in Utah on a limited entry bull elk hunt in 3 weeks.


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## 3arabians (Dec 9, 2014)

johnnycake said:


> Gitano, I'm a Utah boy that just moved up this past spring. I'll be back in Utah on a limited entry bull elk hunt in 3 weeks.


Big bull going down Jon!!


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## gpskid (Jul 24, 2012)

So guess I got to chime in with my question to everyone
Your driving down the road in a so called temp hunting reserve...
Question 1
Does DWR officer have the right to stop you with no probable cause, ur only driving down the road ?
Question 2
Can he look and check your guns (handguns, rifles, shotguns that are cased, shells in the mag. etc ?
Question 3 the big one
And If you have a concealed permit can they have a round in the barrel (handgun, rifle or shotgun ?,
Not that I do, but just asking my rights.

I agree to let the officer look at my guns, I didn't tell him I had a concealed permit because I don't never have one in the chamber, and if he had probable cause to stop me, just curious about those things?

The kid


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## High Desert Elk (Aug 21, 2012)

If they stop me and check because of "probable cause", they had better be able to convince a judge and be better at making an arguement than my attorney.

I've noticed that several game law violations such as these get dismissed. There is no substance behind the charges.


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## BPturkeys (Sep 13, 2007)

Look, it's this simple...
If you are carrying a legal hunting weapon in a designated hunting area you will be found guilty of hunting without a license. Not guilty of carrying a gun. It is not illegal to carry a gun, carry it all you want,...but if you don't have a hunting license, you are guilty of _hunting with out a license_. And, the proof that you are hunting is the fact that you are carrying the gun. It has nothing to do with your second amendment rights. Nobody is telling you you can't carry the gun, they are telling you that you can't hunt without a license.
Now, to clarify, this is only if you are in the field, not driving in your car, or walking around in your house, etc,...only if you are in the field. Carrying a gun, cased, un-cased, visible, not visible, etc, etc in your car is not probable cause or evidence that you are hunting.


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## johnnycake (Jul 19, 2011)

BPturkeys said:


> Look, it's this simple...
> If you are carrying a legal hunting weapon in a designated hunting area you will be found guilty of hunting without a license. Not guilty of carrying a gun. It is not illegal to carry a gun, carry it all you want,...but if you don't have a hunting license, you are guilty of _hunting with out a license_. And, the proof that you are hunting is the fact that you are carrying the gun. It has nothing to do with your second amendment rights. Nobody is telling you you can't carry the gun, they are telling you that you can't hunt without a license.


Show me the statute or rule that supports this, because I can show you one that specifically states any state or local government body must first get legislative approval for such a rule---and the DWR has no such rule in the Administrative Code. So yeah, i feel confident that even if you get a ticket for it, you would get it dismissed very easily. Unless somebody can find the rule or statute to the contrary?


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## High Desert Elk (Aug 21, 2012)

BPturkeys said:


> Look, it's this simple...
> If you are carrying a legal hunting weapon in a designated hunting area you will be found guilty of hunting without a license. Not guilty of carrying a gun. It is not illegal to carry a gun, carry it all you want,...but if you don't have a hunting license, you are guilty of _hunting with out a license_. And, the proof that you are hunting is the fact that you are carrying the gun. It has nothing to do with your second amendment rights. Nobody is telling you you can't carry the gun, they are telling you that you can't hunt without a license.
> Now, to clarify, this is only if you are in the field, not driving in your car, or walking around in your house, etc,...only if you are in the field. Carrying a gun, cased, un-cased, visible, not visible, etc, etc in your car is not probable cause or evidence that you are hunting.


So, a state now has jurisdiction on Fed land as in Nat'l Forest? I know there is a case out there (I can search it out but am hoping someone has it at the front of their knowledge) that a court ruled a gentleman was not guilty of violating a law prohibiting him to carry a firearm within 'x' feet of a school because it interfered with interstate commerce laws.

Point of fact is, I seriously doubt UT can be successful in charging me with hunting without a permit while carrying a rifle tomorrow in the hills without having a general bull permit in my pocket on Fed lands.

It's about the dumbest thing I've ever heard of being guilty without commiting a crime. By this same logic, you're poaching...


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## gitano (Oct 18, 2016)

Actually, one needs to use the correct terminology in these kinds of "jailhouse lawyer" discussions if there is to be any semblance of reasonable communication.

One is not "guilty" of poaching because one is carrying a firearm in the field during hunting season and one does not have a hunting license or permit. "Guilty" is different than "charged". One WILL be CHARGED with "hunting without a license" or poaching, *but that does NOT MAKE ONE GUILTY*. The _prima facia_ evidence (gun in possession and no hunting license) means
1) you can be cited with no further "evidence", and most importantly
2) THE BURDEN IS ON *YOU* TO PROVE YOU WERE NOT HUNTING.

Technically (*although NOT in reality*), the "burden" is _supposed_ to be on the state to prove guilt. In the case of accusations based on _prima facia_ evidence, the burden is removed from the state and *put upon the defendant.* You will *not* be GUILTY until and unless you plead guilty at your preliminary hearing, *or* you are found guilty after a trial.

Personally, I suspect that if you think you can prove you were not hunting, the "game warden" (or what ever they call them in Utah), wouldn't likely issue a citation. At the time of issuance, the cop is going to ask you to "explain" what you are doing in the field with a firearm and no license. If your explanation is plausible, I seriously doubt a citation would be issued at all. However, if you can't provide a reasonable explanation OR you were observed by the cop doing some kind of "hunting activity", a citation is likely to be issued. In which case you're still NOT _guilty_, until or unless you plead guilty or are found guilty after at trial.

Paul

PS - With respect to "jurisdiction" on federal land:
The federal government waives its right to "manage" fish and game on MOST federal lands (there are notable exceptions), and simply allows the "law of the land" in the particular state to be enforced by state and local authorities. If the state and feds get in a spitting contest over something like wolves in Yellowstone, the Feds will (re)claim sovereignty FOR MANAGEMENT on "their" land.

Paul


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## johnnycake (Jul 19, 2011)

That isn't actually how prima facie works in criminal prosecution. Admittedly, I'm not a criminal lawyer, but rather an administrative and regulatory one, but I do remember a bit from my Bar study and criminal law courses. 

In order to establish a prima facie case, a prosecutor need only offer credible evidence in support of each element of a crime. By contrast, a prosecutor must prove defendant’s guilt as to each element beyond a reasonable doubt to win a conviction. So, even if a prosecutor can present enough evidence to establish a prima facie case as to all elements of a crime, the prosecution must nevertheless still prove defendant’s guilt beyond a reasonable doubt. This is a constitutional requirement, and cannot be shifted into the defendant to prove innocence. You can only get a rebuttable presumption in civil cases against the defendant, but I could be wrong.


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## Kevin D (Sep 15, 2007)

This is what I suspect will happen if caught carrying a rifle during a big game hunt: The officer in the field will cite you for hunting without a license hoping you plead guilty and pay the fine. But if you were to contest the charge, without evidence to the contrary, the prosecutor will likely dismiss the case.

BTW, I'm not a lawyer, but I sometimes play one on the internet.....


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## BPturkeys (Sep 13, 2007)

gitano said:


> ...
> 
> Personally, I suspect that if you think you can prove you were not hunting, the "game warden" (or what ever they call them in Utah), wouldn't likely issue a citation. At the time of issuance, the cop is going to ask you to "explain" what you are doing in the field with a firearm and no license. If your explanation is plausible, I seriously doubt a citation would be issued at all. However, if you can't provide a reasonable explanation OR you were observed by the cop doing some kind of "hunting activity", a citation is likely to be issued. ...
> 
> Paul


Yup, I think this is exactly what would happen. Sorry about my legaleze, but most people got my point. That it is not so much about carrying a gun, by the way, the same applies if you where carrying a bow, than it is about hunting without a permit.

Thanks Paul and enjoy your hunt and stay in Utah


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## High Desert Elk (Aug 21, 2012)

It's all semantics. One is guilt by perception in the field and one is guilt by deliberation in a courtroom. It's set up this way to allow due process to 'have your day in court'. 

So, how is it different then, carrying a rifle in season vs out of season? The capability is still there to illegally take an animal. Do you now have to get authoritative permission to even carry any type of firearm


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## High Desert Elk (Aug 21, 2012)

BPturkeys said:


> Yup, I think this is exactly what would happen. Sorry about my legaleze, but most people got my point. That it is not so much about carrying a gun, by the way, the same applies if you where carrying a bow, than it is about hunting without a permit.
> 
> Thanks Paul and enjoy your hunt and stay in Utah


Just generating discussion...


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## DallanC (Jan 13, 2009)

I've been target shooting before and literally, had deer walk between me and my target. Of course we stopped shooting soon as we saw the animals, but still... if nothing else it was amusing.


-DallanC


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## Airborne (May 29, 2009)

I am going to add a couple of things to consider when dealing with law enforcement/the legal system.

First and foremost don't ever answer questions from law enfrocement. You should be pleasant and respectful and if driving you should show license/insurance if requested *but beyond this nothing you say to any law enforcement officer can help you*. You need to simply tell them that you respect them but you don't answer any questions. 2nd thing you ask them is if you are being detained, if they answer yes, then you are covered by miranda and don't have to answer any questions and if they say you are not being detained then get out of there quickly and safely.

Remember these two sentences:

*I'm sorry officer but I don't answer any questions from law enforcement, I really respect you and appreciate what you do but I don't answer questions.

Am I being detained or can I leave?*

The ACLU puts out some really good youtube videos on how to interact with law enforcement. It's tricky and you have to weigh your options in every situation but the general rules above are pretty good. Think about when you watch the show 'Cops' and how people ramble on and talk and always dig themselves a bigger hole. Even if you are totally innocent and just want to do the right thing--there are so many dang laws you may or may not know about that any talking you do will not help you.

It's tricky in hunting situations sometimes and you have to be tough because law enforcement can be super intimidating, like drill sergeant level, but you have to know and maintain your rights--always be respectful. Yes, you should show your license when hunting and if requested the game animal(s) taken as that is your legal obligation but beyond this nothing else is required.

Here is a good example: Let's say that you killed a buck deer, have it tagged and everything is on the up and up. You just loaded the buck in your truck and LE shows up. He asks for your license/tag, looks it over and starts to chat it up. I will not chat it up and neither should you, if asked where I killed the buck my answer is I don't answer questions, if he demands I take him to the gut pile I politely say no, the edible carcass is here and by law that is what I am required by law to present. I ask if I am being detained or if I can leave. It's the catch 22 for LE, if they answer yes you don't have to answer any questions and if they answer no then leave, don't tarry. Most LE don't like to answer this questions and will push back--keep asking til you get an answer. Never allow any searches or person/vehicle/home. They will make you feel like you have no choice--you do!

I am not anti-LE, I just know my rights and I know their role--their purpose in life is to arrest people, it is their job, they are not your friends, they are not your enemy, they are an instrument of the law.

Some good videos that every American should watch:


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## bowgy (Oct 10, 2007)

BPturkeys said:


> Look, it's this simple...
> If you are carrying a legal hunting weapon in a designated hunting area you will be found guilty of hunting without a license. Not guilty of carrying a gun.* It is not illegal to carry a gun, carry it all you want,...but if you don't have a hunting license, you are guilty of hunting with out a license*. And, the proof that you are hunting is the fact that you are carrying the gun. It has nothing to do with your second amendment rights. Nobody is telling you you can't carry the gun, they are telling you that you can't hunt without a license.
> Now, to clarify, this is only if you are in the field, not driving in your car, or walking around in your house, etc,...only if you are in the field. Carrying a gun, cased, un-cased, visible, not visible, etc, etc in your car is not probable cause or evidence that you are hunting.


What part of "Shall Not Be Infringed" don't they understand?

When I take my son or daughter out hunting and I don't have a license, I am still hunting without a license whether I am carrying a gun or not.

If my daughter gets tired and I carry her gun for her for a while I am guilty of hunting without a license? If I help her cross a fence or a log by holding her gun for her I am guilty of hunting without a license?

A person should not be guilty of hunting without a license while carrying a gun unless he points it at a protected game animal and pulls the trigger.

I'm not saying it is not the law, if it is the law then it is an unconstitutional law. But the DWR is big on those type of laws.


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## DallanC (Jan 13, 2009)

BPturkeys said:


> Look, it's this simple...
> 
> If you are carrying a legal hunting weapon in a designated hunting area you will be found guilty of hunting without a license. Not guilty of carrying a gun. It is not illegal to carry a gun, carry it all you want,...but if you don't have a hunting license, you are guilty of _hunting with out a license_. And, the proof that you are hunting is the fact that you are carrying the gun.


It is 100% legal to hunt coyotes, year around. Are we now saying you cannot hunt coyotes during some big game seasons? What about people who do no care about hunting deer or elk and only want to hunt coyotes for the bounty?

-DallanC


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## High Desert Elk (Aug 21, 2012)

If there is a written statute on the books passed through legislation, then by all means adhere (us) and enforce (LO). If there isn't, don't go cowboy (LO) and make it up as you go.


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## gitano (Oct 18, 2016)

It doesn't sound like we (Johnnycakes and I), are differing in the mechanics, only the 'philosophy' - "shifting of the burden of proof". There's not much point in my opinion of arguing this subtlety _here on line_ because the mechanics are the same whether the philosophical "shift" is real or not. If you wander the DWR site on the matter of various _prima facia_-based regulation, you will find the exact words "_shifts the burden of proof to the hunter_". regardless of whether or not this POINT OF VIEW of the STATE is "legal", constitutional, or defensible, it cannot be denied that it is *their* OPINION that it is. In other words, they ARE going to cite you, and you ARE going to either pay a fine (admit guilt) or end up in court defending yourself. That process is not abrogated by "_prima facia_" evidence.

The bottom line is, (regardless of "perspectives" or philosophies), that one is not GUILTY of a crime until or unless that person admits guilt or is found guilty at trial. You (Johnnycake), and I agree on that point, and _that_, (not guilty until proven), is all that _really_ matters.

All I was trying to clarify in my above post is that _prima facia_ evidence does not PROVE guilt, it ALLOWS/facilitates citation/charging. One still has constitutionally protected right to trial and defense against all charges whether _prima facia_-based or not.

Paul


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## gitano (Oct 18, 2016)

BPturkeys said:


> Thanks Paul and enjoy your hunt and stay in Utah


Thank you! I hit the ground with rifle in hand tomorrow. In all honesty, my expectations are low. I'm going to a place I know NOTHING of. By myself. I'm a Hunter, but there's only so far hunting skills will get you. Knowing the 'lay of the land' is very important. I'm treating this year as 'recon'. On everything, including the LAW of the land!

Paul


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## BPturkeys (Sep 13, 2007)

Mods please...I you can say "abrogated" on this forum?


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## johnnycake (Jul 19, 2011)

Good luck Paul! Have a great hunt, and hopefully you can get your grandson on some fish!

I still haven't seen where the DWR has a current reg posted anywhere though supporting the "temporary game reserve" concept. I would love to see where you read that.


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## Vanilla (Dec 11, 2009)

Wow, who needs a lawyer when you have the Utah Wildlife Network!? 

There was actually a very thorough discussion on this a couple years ago on the forum. I was on the record then, and maintain the same position now, that going into the field with a hunting weapon during a hunting season without a license is a bad idea. I won't get too far into this prima facia stuff, because I am not your attorney and I'm not giving legal advice. But even if it is not against the law to do so, plan on answering some questions if you are visited by a LE officer while doing this. 

And no, probable cause is not needed for you to be stopped by a law enforcement officer. Reasonable articulable suspicion is the standard for a detention. Probable Cause is the standard for arrest. So multiple people misquoted the legal standard, just to put that out there. 

Also, while it is true you are not required to ever answer questions, it is not true that any time you are detained Miranda attaches. One example, traffic stops. You have no Miranda right during traffic stops as they are not tantamount to an arrest, as we know it. So yes, you are detained. No, Miranda does not apply. And when Miranda is cited, do we even know what that means? Miranda is a court created prophylactic rule, not a true constitutional provision. You might want to know what Miranda actually means and what it doesn't mean before you go get yourself up a creek with the law citing some internet legal advice. 

Again, I am not your lawyer, and I am not giving legal advice. I will say that I do not believe it is against the law to carry a rifle into a hunting area while wearing hunter orange without a license. At least not against any laws I am aware of. (I don't have the code book memorized, and I'm certainly not going to research this issue) While it may not be illegal in and of itself, don't complain if you come across a CO while do so and he/she looks at you rather funny and wants some answers to questions. The actions described are certainly reasonable articulable suspicion to detain and investigate. Possibly more, depending on the circumstances. 

Lastly, no your son in law is not required to wear hunter orange. The hunter orange requirements only apply to tag holders. But again, what the law says, and what the best practice or smart thing to do is not always the same thing.


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## High Desert Elk (Aug 21, 2012)

Case closed!


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## Huge29 (Sep 17, 2007)

I didn't see the orange question answered, it is not required, however you will likely see much higher hunter density than in the last frontier and he will want orange if he doesnt. Unfortunately, there are morons on every corner of this earth and you want people to know where you are. At least get the orange hat would be my recommendation. 
Welcome to Utah, come stay at my house and you can return the favor next September.


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## Airborne (May 29, 2009)

Vanilla said:


> Also, while it is true you are not required to ever answer questions, it is not true that any time you are detained Miranda attaches. One example, traffic stops. You have no Miranda right during traffic stops as they are not tantamount to an arrest, as we know it. So yes, you are detained. No, Miranda does not apply. And when Miranda is cited, do we even know what that means? Miranda is a court created prophylactic rule, not a true constitutional provision. You might want to know what Miranda actually means and what it doesn't mean before you go get yourself up a creek with the law citing some internet legal advice.


So, are you saying that you have to answer questions from a law enforcement officer in the absence of Miranda or whatever court created prophylactic you are referring to?

I don't understand your point of view here; are you trying to niggle a semantic forum 'win' here by saying that technically you are not covered under Miranda until arrested? That's correct but seeing the forest for the trees, I believe the point being made was that you do not have to answer questions from law enforcement beyond identifying yourself if the officer has reasonable suspicion to detain you--this is applicable in the state of Utah, not in all states.

Who advocated for citing internet legal advice to an LE? Keeping one's mouth shut is the best advice when dealing with LE.

Miranda and other court created prophylactic rules are based upon true constitutional provisions, in this case the 5th Amendment. Please don't degrade them when we have decades of case law backing them up.

Talking law is fun and knowing your rights is even more fun, it inspires thought and study. Framing the online discussion of wildlife law in the pejorative is ego-centered on the belief that since we are not in a law class this means nothing. I think this type of discussion should be encouraged.


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## DallanC (Jan 13, 2009)

Was thinking last night how a literal interpretation of this topic is such a bad idea.

Situation 1, father takes kid out for his first deer, father holds gun while kid crosses a fence. Father can now get cited for having in his possession a rifle without a license during a hunt?

Situation 2 (this one is more fun), the "hunt" technically ends when you tag your animal, as the DWR regs clearly state you cannot hunt with a detached license. Yet you are still at the site of the kill, with your rifle. You are now in possession of a rifle during a hunt, without a valid license.

See how dumb this whole thing is? 

Debate, discuss... whatever, I got my trailers all hooked up, nearly completely loaded and heading for the Books in 30 min. Good luck to everyone.


-DallanC


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## Vanilla (Dec 11, 2009)

Airborne- I'm not advocating anything. I was illustrating why taking internet legal advice is not a goood idea, and your discussion about Miranda (and misstating the law) was just an example of that. 

DallanC- great examples. Again, I do not believe it is against the law to simply carry or possess a hunting rifle in the field without a tag/license. If I'm missing a specific code, feel free to post it. But at the same time, I don't think it's the best idea in the world.


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## middlefork (Nov 2, 2008)

Just a quick search turned up this.
http://wildlife.utah.gov/public_meetings/info/2011-04-05.pdf
Looks like it was changed?


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## johnnycake (Jul 19, 2011)

middlefork said:


> Just a quick search turned up this.
> http://wildlife.utah.gov/public_meetings/info/2011-04-05.pdf
> Looks like it was changed?


That would appear it was deleted from the regs.


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## bowgy (Oct 10, 2007)

middlefork said:


> Just a quick search turned up this.
> http://wildlife.utah.gov/public_meetings/info/2011-04-05.pdf
> Looks like it was changed?


My guess is it didn't hold up in court for those that contested it.


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## High Desert Elk (Aug 21, 2012)

bowgy said:


> My guess is it didn't hold up in court for those that contested it.


How do you turn public and heritage lands in an entire state into a 'Temporary Game Preserve"...?


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## Vanilla (Dec 11, 2009)

Johnnycake posted a law earlier in this thread that was passed sometime in the last several years (I can't remember exactly when...but fairly recent) where the legislature makes clear that only it can make firearm laws/rules in Utah. It was in response, I believe, to the fiasco at the University of Utah when the school tried to prohibit students from carrying firearms on campus. 

Its been a long time since I've reviewed that case, but ultimately the court told the university it can't do that. Only the legislature could make that rule for public property. The legislature then made it clear via statute, if I remember correctly. Restricting possessing a firearm on public property without authority from the legislature would violate the law johnnycake posted pages ago.


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## High Desert Elk (Aug 21, 2012)

http://www.law.cornell.edu/supct/html/93-1260.ZO.html

Doesn't necessarily pertain to this, but it's interesting to see the logic and process used when a court writes an opinion on a legal case (for us 'Backwoods Saturday Lawyers').


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## gitano (Oct 18, 2016)

Vanilla said:


> I was illustrating why taking internet legal advice is not a goood idea, .


And yet... You give just as much "advice" as many others did. Most - not all - gave their OPINIONS in the spirit of "help". I'd be willing to wager good money that just like in the "sheep incident", DWR personnel would be denying culpability for the LEGAL ADVICE THEY GAVE.

These threads get long and people don't read the early posts.

1) Early on I said my SIL would NOT be carrying a firearm.
2) Early on I noted that while NOT REQUIRED, my SIL WOULD be wearing HO.

No joy on the elk hunt. I didn't realize this was opening weekend of deer season.  We saw maybe 100 other hunters of which none admitted to hunting elk. Several "accosted" us about elk hunting and were 'suspicious' even after I told them I had a "permit".

Beautiful country! I came from essentially sea-level and the 9500 ft trekking got 'tough' after a while. As I mentioned before, expectations were low and this was mostly a recon mission. To that end, it served its purpose. I'm fairly confident the elk were still 'high'. (Why be down in the "low" country where there was TONS of human activity when the high country was available without snow or people?) There wasn't much snow up there, and daytime temps were in the 50s. There was NO sign - zero - zip - nada of elk below 10,000 feet. Not a single person we spoke to had seen hide nor hair of elk. BUT... we did find two skins from this year's hunting. One was a calf, and one a cow.

I don't see how one could expect to find elk 'early' (other than "opening day") in this unit. All motorized access above 9000' has been prohibited. (Not by elevation, but in effect.) Therefore, some kind of pack animal would be needed to reasonably expect to get an elk "out". I THINK the later seasons might be more favorable due to the snow driving them out of the high country.

Again, great country! I'll be back with a fishing pole in hand, but not likely to hunt unless I can get my hands on some form of pack animal.

Paul


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## goofy elk (Dec 16, 2007)

gitano said:


> Beautiful country! I came from essentially sea-level and the 9500 ft trekking got 'tough' after a while. As I mentioned before, expectations were low and this was mostly a recon mission. To that end, it served its purpose. I'm fairly confident the elk were still 'high'. (Why be down in the "low" country where there was TONS of human activity when the high country was available without snow or people?) There wasn't much snow up there, and daytime temps were in the 50s. There was NO sign - zero - zip - nada of elk below 10,000 feet. Not a single person we spoke to had seen hide nor hair of elk. BUT... we did find two skins from this year's hunting. One was a calf, and one a cow.
> 
> Paul


Not sure what unit your hunting Paul..?..

But most of the elk on the units I've been on the last 3 weeks,
are in, and rutted in the Cedars trees, Low country.

Like the Manti Skyline,
WAAAAAY more elk WAY low than high..

We filled Manti cow permits below 6,500 feet,
were NO ONE else was even hunting!


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## gitano (Oct 18, 2016)

I'd 'buy' that evaluation goofy elk, if we were the only ones around the area, but we talked to LOTS of people. NO ONE had seen an elk. Furthermore, there was NO bugling. AT ALL. I don't recall the unit number, but the area was bounded on the north by the state line, on the west by Henry's Fork, on the east by Burnt Fork, and on the south by the crest of the Wasatch. The lowest point in that hunt area is on the state line at about 8000'.

Paul


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## goofy elk (Dec 16, 2007)

Henrys Fork North Slope Unitas?

If so, that explains it.

Those elk are long gone to Wyoming.....


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## gitano (Oct 18, 2016)

goofy elk said:


> Those elk are long gone to Wyoming.....


Considering that we didn't hear a thing, that is a likely possibility.

Paul


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