Discussion about specific topics of Delaware law. Suggest new topics of discussion in General Discussion forum.
 #4026  by Wynder
In this 2005 case, the defendant charges the State with proving that he did not have a CCDW (which was shot down) and to review precedence regarding § 1441 because the mentioned cases were decided before 1986 when Article I, § 20 was amended to the Delaware Constitution.

It was ultimately ruled that concealing a weapon was a privilege, even thought the Constitution prescribed a right to keep and bear arms, the court all but says that open carry is the primary purpose of that amendment.

I'll give the procedural, then quote relevant portions of the case.

PROCEDURAL POSTURE: Defendant appealed a judgment by the Superior Court of the State of Delaware in and for New Castle County that convicted him of possession of a deadly weapon by a person prohibited (PDWPP) and of carrying a concealed deadly weapon (CCDW); defendant claimed that the trial court erred by denying his motion for a continuance, by shifting the burden of proof to rebut the charge of CCDW, and by imposing a minimum mandatory sentence for PDWPP.

OVERVIEW: After receiving an anonymous tip that a suspect in a shooting was sleeping in a van, the police proceeded to the scene, awoke defendant, and conducted a pat-down search, wherein they found a loaded handgun. In return for a stipulation that he was a person prohibited from carrying a deadly weapon, the State redacted its indictment to remove the details of defendant's prior conviction. The trial court denied defendant's motion for a continuance to enable him to produce two witnesses who failed to appear. The state supreme court held that defendant's application for a continuance did not provide a time frame for the continuance and he did not show that any prejudice would result from its denial. Consequently, the trial court properly denied the request. Defendant failed to explain how the right to bear arms under Del. Const. art. I, § 20 altered Del. Code Ann. tit. 11, § 1441, governing the right to carry a concealed weapon. By stipulating that he was a person prohibited, defendant waived his right to dispute the underlying facts of that stipulation, including the date of his prior conviction. Consequently, the trial court properly issued the mandatory three-year sentence.

OUTCOME: The judgment was affirmed.

This 17th day of August 2005, upon consideration of the briefs of the parties and the record in this case, it appears to the Court that:
(11) In Lively v. State and Upshur v. State, this Court held that in a criminal trial the defendant who is charged with CCDW has the burden to show that he had a license to carry a concealed deadly weapon. As we said in Lively, "possession of a license is best viewed as a defense to a charge of CCDW, since it is a matter more immediately within the knowledge of the defendant himself, and more readily proven by him." Smith contends that we should reconsider Lively and Upshur, because the 1986 amendment to the Delaware Constitution, which post-dated those decisions, expressly recognized the right to bear arms in Delaware for the first time. Smith asserts that the 1986 amendment, which was adopted after Lively and Upshur were decided, broadened the right to bear arms and that as a result, a Delaware citizen should be presumed to be bearing arms legally unless the State proves otherwise.
And, here's the gem paragraph:
(12) Smith fails to explain, however, how the 1986 amendment altered the existing law governing the right to carry a concealed weapon. The amendment, Article I, Section 20, provides that "A person has the right to keep and bear arms for the defense of self, family, home, and State, and for hunting and recreational use." That constitutional provision contains no language that entitles a person to conceal the weapon he carries. Rather, any such entitlement involves only a privilege to carry a concealed weapon--a privilege that is regulated by statute: 11 Del. C. § 1441. Although Article I Section 20 confirms the constitutional right to keep and bear arms, Section 1441 denies any person the right to carry a concealed deadly weapon without a license to do so. Section 1441 predated the 1986 amendment and was unchanged by it. Because the amendment did not impact the statutory privilege to carry a concealed weapon, there is no need for us to reconsider Lively and Upshur. Accordingly, the Superior Court did not err in imposing on the defendant the burden to prove a license to carry a concealed weapon.
 #104224  by Babblu
OVERVIEW: An officer, based on an anonymous 911 call about a "suspicious black male wearing a blue coat" in a particular vicinity, ordered defendant to stop and remove his hands from his pockets. When defendant did not respond, the officer grabbed defendant's hands, and defendant threw an object over the officer's head. After handcuffing defendant, the officer recovered the thrown object, cocaine. Defendant was indicted on drug offenses under Del. Code Ann., tit. 16, §§ 4753A(a)(2)(a), 4751, 4771; and Del. Code Ann., tit. 11, § 1257. The judgment against defendant was reversed on appeal because the court concluded that the evidence was invalidly seized from defendant. To stop and detain an individual pursuant to Del. Code Ann., tit. 11, § 1902; and Del. Const. art. I, § 6; a peace officer must have a reasonable and articulable suspicion. The information possessed by the officer did not rise to that level.