Safeguards for Carrying Pocket Pistols

A legal approach to the "do's" and "don't's" of carrying a concealed pocket pistol.

Download state-by-state carry guide here

The use of a compact or sub-compact pistol for concealed carry is not a new phenomenon, but the practice has grown since the advent of small, yet reliable semiautomatic pistols. While there are many potential definitions of a “pocket pistol,” for the purposes of this article, a pocket pistol is defined as a small pistol (either a semi-automatic or a revolver) that can be effectively concealed. The method of carry may include a holster on the hip or ankle, a pants pocket, or even an exterior coat pocket. A pocket pistol may be as small as a 5-shot revolver chambered in .22 (the North American Arms .22 Magnum revolver) or a smaller version of a full sized pistol with ten rounds of .45 ACP, like the Glock model 30. A pocket pistol need not be chambered in a diminutive or underpowered caliber. The legal issues concerning the carry and concealment of a small pistol are no different than the issues concerning the carry of a larger pistol. There are however several aspects that bear increased scrutiny and added awareness when carrying a smaller pistol for personal protection.

Of greatest importance, is an awareness of the laws governing the concealed carry of a pistol. In many States, a concealed carry permit allows an individual to carry a concealed pistol. In some States, a concealed carry permit may allow the concealed carry of a pocket knife, or a weapon other than a pistol. Some States have very few restrictions regarding what type of weapons may be carried concealed, while some States apply broad restrictions on what types of firearms may be carried concealed. Bottom line: Know the laws that govern concealed carry for the State in which you intend to carry concealed. If your State allows residents to carry a concealed pistol, don’t carry anything other than a pistol. In the event that your State only allows the concealed carry of a pistol, the concealed carry of any other type of firearm is likely to be illegal, and potentially subject to criminal prosecution. Know the limitations of the local laws, and stay within the legal boundaries.

 

One should also be aware of the applicable laws within States in which one may need to rely upon reciprocity of a concealed carry permit. While this suggestion may seem self evident, the reciprocity of concealed carry permits between States present a myriad of different laws governing how one may carry concealed. The laws that govern concealed carry within your home state may not directly correlate to the laws of another State. Simply, the laws of Florida may differ significantly from the laws of Georgia, North Carolina, or Idaho. If you intend to rely upon reciprocity with another State, be sure to research the laws prior to travelling to ensure that you are in compliance with local law. Even though you may be legally allowed to carry a concealed weapon via reciprocity with your home State, actions that may be legal in your home State may not be legal within another State.

Carrying a smaller pistol may be easier to carry concealed, but one should ensure that the correct type of firearm and ammunition are selected. Pen guns, cane guns, and other exotic firearms may be fun to shoot, easy to conceal, and may be highly effective for self-defense, but they are inappropriate for concealed carry. Notwithstanding the advice above, in the event that a concealed firearm is used, it may be hard to justify in a criminal or civil lawsuit why a pen gun or cane gun was used for self defense instead of a pistol. In the event that an exotic firearm is used for self defense, it may be harder to justify the use of the exotic firearm. A prosecutor may choose to focus on the type of weapon used, rather than the case. In the event that law enforcement discovers an exotic firearm being carried concealed, you may face increased scrutiny, potential confiscation, and additional headaches that could have been avoided by the use of a small pistol. Avoid the use of exotic firearms for self defense.

By design, a pocket pistol holds fewer rounds than its larger sized brethren. In many cases, a pocket pistol may be limited to 6 or 8 rounds of ammunition. In some cases, a pocket pistol may accommodate as many as ten rounds of ammunition, or as few as two rounds. If the event a small pistol is used for self defense, every round will need to be effective. Choosing the right type of ammunition for a small pistol is of more importance than ammunition used in a full sized pistol. While there may be a greater desire to use exotic or reloaded ammunition intended to inflict maximum damage, resist the temptation. Older shooters may recall the media frenzy over the name “Black Talon,” when an overzealous prosecutor put emphasis on the name of the ammunition, rather than the facts of the situation. Similarly, reloaded ammunition faces similar potential legal problems – a prosecutor may be able to convince a jury reloaded ammunition is designed to unnecessarily maim, disfigure, mutilate or kill much more effectively than factory loaded ammunition. With the current offerings on the market, it should not be difficult to find reliable factory loaded hollow point ammunition.

Finally, when carrying any concealed weapon, know when the use of deadly force is permissible. Each State will have different laws governing the use of deadly force. Some States require that a person retreat prior to using deadly force. Some States do not require a party to retreat, but may consider the act of simply drawing a weapon and pointing it at a perceived threat to be use of deadly force.

Under common law, there must be three prerequisites before the use of deadly force will be justified –Your attacker must have the ability, opportunity, and intent to inflict serious bodily harm. If any one factor is missing, a court may determine that there was no reasonable justification to use deadly force. Granted – it will be extremely difficult to assess the situation in the heat of the moment. As a result, the common law test to determine if an individual acted in a reasonable manner relies upon an objective standard, taking into account the circumstances of the situation, the knowledge of the shooter at the time, and the proportionality of the force used. In the event that the shooter is mistaken, the act may still be justified if the amount of force used was proportionate and reasonable under the situation. If available, take a training course that discusses the legal aspects of using deadly force. Know what is required to use deadly force prior to being placed into a difficult situation.

The design of modern pistols presents individuals with an effective means of self defense within a small package. An awareness of the legal issues and potential pitfalls allows shooters to research and address the issues prior to an altercation. Making the right choice in choosing a firearm, choosing the right type of ammunition, and choosing the manner in which the firearm is used for self defense will help to avoid potential legal issues.

Jason M. Wong is an attorney licensed in the State of Washington. Mr. Wong is the managing partner of The Firearms Law Group, a boutique law firm that regularly provides legal counsel to manufacturers, importers, and exporters in the firearm and defense industries. The firm currently maintains offices in Washington, D.C., and Tacoma, Washington.

 

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