A terrible precedent is being set with guns in public places...

[jberryhill]

139. There can be

One of the problem with limiting hypotheticals when we are discussing "totality of the circumstances" situations, is that real life is much more factually rich than a single sentence.

"Intent" shows up all of the time in laws. In the area in which I work, it is a pivotal element of the type of cases which I regularly handle. I'm constantly asked, "Well how do they know intent if they can't read minds?"

In the situation you describe, I'd want to know a lot more about that guy. In real life, people aren't stick figures. Was he wearing a t-shirt that said "I like to kill people?" What did he say to people before he went to that restaurant? What did he say to anyone in the restaurant? What other aspects of his behavior and demeanor might suggest one thing or another? What kind of a restaurant is it? Was it the "Happy Vegan Peace & Love Cafe" or was it the "Dead End Rootin' Tootin' Roadhouse"?

In real life, it's not "a guy" and "a restaurant".

So, what do you think?

1. Are the customers at the "Happy Vegan Peace & Love Cafe" objectively more likely to be alarmed by someone carrying a gun than at the "Dead End Rootin' Tootin' Roadhouse"?

That's a simple objective question, and the character of the restaurant is one of a zillion facts on which we can begin to make inferences about intent. Was the guy doing it because he normally does it, and it is normal in that setting, or was he specifically doing it to piss people off?

What is odd here, is that you seem to agree that "it depends on the circumstances" is what matters. We both agree on that. However, one of the facts of our society is that criminal statutes can't just say "it depends on the circumstances", and that's where intent comes in.

And you hear this from lawyers all of the time - you ask them a question and they say "it depends", which can be weird when you consider that all of the statutes are written in plain black and white. But there is statutory language which, while definite, can boil down to the same thing.

So, let's take it a step further. The guy goes into the restaurant, and he notices that people look afraid. A waiter says, "Hey, could you take the gun out of here, it is scaring people."

And the guy says, "Fuck 'em, let 'em be scared then. I have my rights to carry a gun."

Well, you didn't know his intent when he walked in, but now you have some additional facts:

1. He knows people are scared, and
2. He intends to continue displaying his weapon.

At this point, the circumstances have changed from when he walked in. Maybe the guy has walked into ten different restaurants without a problem, and nobody was upset. But now he is in a different situation. Facts 1 and 2 add up to, yes, an intent to continue in a course of behavior which he knows is causing alarm. The offense - under our entirely hypothetical statute - starts then, not when he walked in.

That's very much the way we treat something as simple as trespassing. You'd like to hang out in my yard. But you don't know whether or not I would let you. Now, I never let people hang out in my yard, but you don't know that. So, you pull into my driveway, get out of the car, walk over to my door and say, "Hey, can I hang out in your yard."

I tell you, "No, and please leave and get your car out of my driveway."

Up to that point, you haven't begun to trespass on my property. However, AFTER that point, now that you KNOW I don't want you there or your car in my driveway, you still aren't trespassing.

You WILL be trespassing, however, if you don't reasonably proceed to get off of my porch, into your car, and get out of my driveway. You aren't even trespassing during the period of time that you are leaving, since you are trying to get off of my property.

But, instead, if you then proceed to hang out in my yard, your knowledge - objectively known from what I told you - changes things.

This is, incidentally, one of the reasons why we have juries. Whether someone possessed relevant intent is what we call a "question of fact", which a jury determines, and not a "question of law", which a court determines.

The legal question is "can you make it illegal to do something otherwise legal on the basis of a particular intent". The answer is "yes, we do that ALL OF THE TIME."

What remains in any particular case is for a jury to sort out, based on the totality of circumstances and inferences that can be made from them, whether a particular defendant, in a particular fact-rich environment, had the relevant intent.

So the simple answer to your question of "how does the law determine intent" is that the law does not determine intent. Juries determine intent.