A Terrible Time To Test, But Still A Right

It was only days after the slaughter in an El Paso Walmart. In the scheme of constitutional rights, it can be argued all day and all night that this undeniable fact is irrelevant, and it is. Yet, getting along in society includes some recognition of not being the worst person you can be even though you have a right to do so.

Dmitriy Andreychenko is an asshole. To call him a jerk is inadequate. What he did went far beyond being a jerk, reflecting such a deep lack of judgment that you have to wonder how he survived long enough to walk into a Walmart in Springfield, Missouri.

Prosecutors on Friday filed a terrorist threat charge against a 20-year-old man who said he walked into a Missouri store wearing body armor and carrying a loaded rifle and handgun to test whether Walmart would honor his constitutional right to bear arms.

Second Amendment advocates will swiftly point out that he had a right to do this, a right protected by the Constitution. He did. They will claim that there is no more important way to test that right than at its edge, a Walmart, body armor and an open carry rifle and pistol, pushing the limits of people’s raw fear by recreating a scenario that, only days before cost 22 people their lives to a man bent on killing “invading” Latinos. Perhaps, if one’s twisted sense of priorities is to care so much about testing one’s rights and so little about the clear and obvious reaction of well-grounded fear it will cause.

And the same advocates will argue, correctly, that Missouri failed the test.

No shots were fired and Andreychenko was arrested after he was stopped by an armed off-duty firefighter at the store.

“Missouri protects the right of people to open carry a firearm, but that does not allow an individual to act in a reckless and criminal manner endangering other citizens,” Greene County Prosecuting Attorney Dan Patterson said in a statement announcing the charge. Patterson compared the man’s actions to “falsely shouting fire in a theater causing a panic.”

For all the bad judgment demonstrated by his actions, Andreychenko did nothing more than was his right. It’s entirely fair to think him an asshole for what he did, but that’s not a crime. If it were, we would all be locked up. The county prosecutor’s pathetic attempt to characterize not merely lawful, but constitutionally protected, conduct as a crime is no more tasty a word salad than the most ardent advocate of intersectionality. If it’s lawful conduct, it’s not “a reckless and criminal manner endangering other citizens” because he says so.

And, as if to conclusively prove the emptiness of his charge, he invoked the “falsely shouting fire in a theater causing a panic.” While its analogy legally is nonsensical, there is a comparison to be made about the underlying concern: panic.

It’s unlikely that Andreychenko intended to cause panic, but could he be so blind as not realize that would happen? Did he care so little for anyone else that he was willing, if not happy, to be the cause of panic for his own narcissistic purposes? Apparently so. What kind of person does such a thing? Andreychenko. An asshole.

It can be argued that the panic was irrational, that the probability of a shooter walking into the Springfield Walmart days after the El Paso slaughter was negligible, as people overestimate the potential of an extremely unlikely event based on it being horrific and spotlighted, the obvious response is that there is no rational reason to walk into a Walmart dressed in body armor with a rifle slung over one’s back either. Andreychenko was being deliberately and needlessly provocative, except to the extent one sees his provocation as being the point.

And yet, no matter how provocative he was, how little he cared about the panic he would cause others, that doesn’t make him a terrorist or give rise to a criminal charge. You might think it should, but it can’t. And that’s the dilemma.

It’s hardly irrational for the people in the Springfield Walmart to fear a copycat mass murder was about to happen, and they were in the line of fire. Nobody wants to die like that. Nobody is going to parse out the relative constitutional concerns when being within range of a man wearing body armor and open carrying a rifle and handgun under those circumstances. If anything, it’s amazing that the armed off-duty firefighter who stopped Andreychenko didn’t end up causing a shoot out.

But the right to open carry in Missouri is a right. And if it’s a right, and the right belongs to Andreychenko, then it’s not up to anyone else to deny it to Andreychenko. It doesn’t matter how bad his judgment was in exercising the right, how little concern he held for anyone else in that Walmart who would understandably panic as a result of his exercise of his right. Bad judgment does not impair a right.

Police have long made this point, that while they may be aware of the right to keep and bear arms, to carry guns whether open or concealed, they are left in the position of being unable to distinguish the killer from the person merely exercising their constitutional right. How are they to know whether this is someone about the slaughter 22 Latinos or just a gun guy? Police are mostly antagonistic toward this right, not because they too aren’t gun fans, but because it presents a facial risk to them and others without distinguishing rules.

Gun advocates offer an unsatisfying answer: they have a right to carry, and the presumption upon seeing a person openly carrying a weapon is that it’s nothing more than the exercise of a constitutional right. The charges against Andreychenko should be dismissed because he did nothing more than exercise his constitutional right, and it’s not yet a crime in America to be an asshole.

But make no mistake, Andreychenko was an asshole to do what he did, and the conflict between his test and people’s understandable panic is not so easily talked away, just as his conduct doesn’t cease to be a right by the county prosecutor calling it “reckless and criminal.”

47 thoughts on “A Terrible Time To Test, But Still A Right

    1. David

      I come for the crazy lawyer and somehow keep finding new music to listen to. You are becoming my go to discovery guy.

      Reply
  1. Dan

    “to test whether Walmart would honor his constitutional right to bear arms.”

    If that’s actually his stated aim, then he’s an idiot in addition to an asshole, as (obviously) Walmart is not the government and thus is not in a position to infringe. Just as they can prevent you from using their stores as a platform for your undesirable (whatever they might decide that to be) speech without violating the First Amendment, they can prohibit his carrying a gun without infringing on the Second.

    But this story is making me think there may be an analogy to “reasonable content-neutral restrictions on time, place, and manner of speech” in Second Amendment cases.

    Reply
      1. Ross

        Those laws result in a myriad of conversations in gun culture on the topic of “should my property rights override your gun rights”. I am generally shocked at how many people think their right to carry a firearm should override everyone else’s property rights. Of course, they do claim that their own property rights are more important than yours, and fail to see the hypocrisy in their statements.

        Reply
  2. Richard Kopf

    SHG,

    Here is the Missouri law with which he was actually charged (not the one he was booked under):

    574.120. Making a terrorist threat, second degree — penalty. — 1. A person commits the offense of making a terrorist threat in the second degree if he or she recklessly disregards the risk of causing the evacuation, quarantine or closure of any portion of a building, inhabitable structure, place of assembly or facility of transportation and knowingly:

      (1) Communicates an express or implied threat to cause an incident or condition involving danger to life; or

      (2) Communicates a false report of an incident or condition involving danger to life; or

      (3) Causes a false belief or fear that an incident has occurred or that a condition exists involving danger to life.

      2. The offense of making a terrorist threat in the second degree is a class E felony.

      3. No offense is committed under this section by a person acting in good faith with the purpose to prevent harm.

    Three things. The statute might cover his “reckless” behavior (objective person standard?) because of the use of an “implied” threat to cause Walmart to “evacuate.” But, the statute, as applied to him, may well be void for vagueness.

    All the best.

    RGK

    Reply
    1. SHG Post author

      Can engaging in a completely lawful act ever give rise to an “implied” threat? Ironically, the threat isn’t implied, but inferred, and anyone can infer anything, subject to the objective reasonable person standard assuming it still exists. But even so, how many of our constitutional rights would survive inference by a reasonable person these days if that was all it took to deny a person his constitutional rights?

      Reply
      1. Richard Kopf

        SHG,

        Spoken like the excellent CDL that you are. Just for fun, let me take issue with just one of your several good point.

        You suggest that a perfectly legal act cannot ever give rise to an implied threat. But the law requires that all prohibited conduct be evaluated in context.

        For example, when the little rat is testifying against the big cheese and the big cheese perfectly lawfully draws his finger across his own throat while in the courtroom and in full view of the testifying little rat whereupon the little rat suddenly forgets everything he told the cops on multiple occasions about the big cheese, was that an implied threat?

        Anyway,

        RGK

        Reply
        1. SHG Post author

          First off, I can’t tell you how much I appreciate your calling the snitch a rat. I’m a sucker for truth in advertising.

          Second, no, it’s an actual threat communicated non-verbally.

          Reply
      2. Patrick Maupin

        You should know better by now. Why, I learned in harassment training just day-before-yesterday that mens rea is officially dead — the intent of the harasser is immaterial, and it is all about the subjective feeling of the harassee.

        It’s really too bad; with a course title like that I was fully expecting to learn how to harass, and I received no clear guidance on how to do it properly. I want my money back.

        Reply
      3. Skink

        To the first question, yes. In a simple form: I can legally drive my Swamp buggy on a street and hard stop before the oldsters with walkers in a crosswalk. You may find that too simple, so address must be made to the implied/inferred conclusion, which you get wrongish: the implication is measured by the inference of a reasonable person. And constitutional litigation is adorned with reasonable person measures, like bulbs on a Christmas tree.

        Rich almost got it, but was attracted to the wrong term. He does that sometimes.

        I’m glad I could clear this up. I’ll now go back to cleaning my weapons on the sidewalk in front of my office.

        Reply
        1. Richard Kopf

          Skink,

          Remember to polish your 30-round shiny silver banana clip too! Its a magnet for the ladies.

          All the best.

          RGK

          PS The black snail drum magazine, with 90 rounds, is for the swamp.

          Reply
      4. Bryan Burroughs

        My non-lawyer self would think that 1(3) covers this guy’s actions much better than 1(1), but that section is so vague as to be unworkable. Anything could “cause fear” among people, reasonably or unreasonably, and squaring that against an otherwise Constitutionally-protected act is a tough sell.

        Reply
    2. B. McLeod

      With respect to Wal Mart and its decision-making, Wal Mart has the right under Missouri Statute 571.107 to post its premises off limits to concealed carry permit holders (and by extension set up in another statute, to open carry). Wal Mart has been unwilling to do this because (for anyone who has missed this point in the news) Wal Mart sells guns, and that trade is lucrative, and Wal Mart is unwilling to cheese off the pro-gun culture by posting its premises to prohibit concealed and open carry.

      Like the State of Missouri, Wal Mart made its choice. Like the State of Missouri, Wal Mart may or may not want to reevaluate its choice. (It would not surprise me if Wal Mart ultimately disciplines the manager who ordered the evacuation).

      Reply
  3. B. McLeod

    Missouri didn’t have to adopt its hillbilly open carry laws, but it did. This demonstration may show why the legislature might want to rethink that, but it can’t be up to an individual prosecutor to suspend the law by charging crimes for conduct the law allows. This is a stunningly bad charging decision.

    Reply
    1. D-Poll

      Missouri’s hillbilly open carry laws are also why an armed bystander was present to detain this very man until police arrived, a fact which even merits a single sentence in the MSN article. It’s not exactly the scenario one hopes for (or that many right-wing sites jumped to the conclusion that it was) as a second-amendment advocate, but ultimately he did serve to justify the right to bear arms, a bit.

      Reply
      1. SHG Post author

        At this point, your comments are so invariably dumb and wrong as to raise the problem of your contributing nothing but stupidity here. There is no information whatsoever that the armed firefighter who detained the guy was open carrying, or even drew a weapon, or do you just not have the slightest clue what we’re talking about here? In any event, it’s time for you to head off to reddit.

        Reply
  4. Jim Tyre

    At least the prosecutor said “falsely” shouting fire in a theater. That makes him less bad than 94% of the twitter lawyers.

    Reply
  5. Sean Work

    “Like most rights, the Second Amendment right is not unlimited. It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose” – Antonin Scalia writing for the majority in D.C. vs. Heller.

    I think you’re wrong. While there are legitimate reasons to carry firearms, none of those applied in this case. Hunting and target practice clearly don’t apply here. He wasn’t carrying a firearm he purchased out to his car. He might have had a self-defense justification if he had open-carried a pistol, but a pistol, rifle and body armor goes well beyond what any individual can claim is necessary for self-defense in the absence of an actual threat. Not even police officers carry a rifle while walking a beat.

    Furthermore, we don’t need to speculate about whether his conduct falls within an established justification for going about armed. He said outright that he wanted to test Wal-Mart. This implies that he knew beforehand that his conduct would cause people to be fearful and believe he was about to begin shooting. This is like someone who tests their first amendment rights by phoning in a fake bomb threat. Committing a crime as a civil liberties test is still committing a crime.

    Reply
    1. Noxx

      “I think you’re wrong. While there are legitimate reasons to carry firearms, none of those applied in this case. Hunting and target practice clearly don’t apply here.”

      They don’t apply anywhere, because they are not part of the law. Shall I give you a dime?

      Reply
    1. LocoYokel

      As a gun owner and concealed and open carry advocate and practitioner, quite frankly I’m surprised someone didn’t draw on this idiot. Legal or not, this was pure provocation and he would have deserved whatever he got. I leave the analysis as to the appropriateness of the statute and charges to those of you better qualified, but I do think this idiot needs a good smacking around over this.

      Then again, I rarely carry open just because it causes stupid people to hyperventilate even in the best of circumstances and I don’t need or want to deal with the drama.

      Reply
      1. D-Poll

        Someone did.

        He was detained until police arrival by an armed bystander; it was all over the right-wing news when information about his motives wasn’t out and people were still speculating he might be a terrorist.

        Less, ultimately, “good guy with gun stops bad guy with gun” than “lawful neutral guy with gun stops chaotic neutral guy with gun”, but I’ll take it, personally.

        Reply
          1. D-Poll

            I’d like to think I got the point, and just had no reason to dispute it because I entirely agreed with the thrust of your post! Moreover, I didn’t want to get too deep in the weeds of side issues that seemed out of the scope of what that post focuses on, so I decided to stick to pointing out the detail a few commenters seemed to have missed from the single mention you gave. Expressio unius isn’t necessarily exclusio alterius in ordinary speech; just because I didn’t mention the point doesn’t mean I didn’t get it. Hopefully.

            Reply
            1. SHG Post author

              Not the point of the post. LY’s point in his comment. Even now, you still don’t get the point. Your last comment. You’re too much work and contribute nothing.

      2. B. McLeod

        Sure. Through the last century, the cultural norm has been to not take our guns to town. When there is a reason to, it is still better to carry the smallest, most inconspicuous weapon that can cover the need. Walking around with an arsenal in open sight just invites trouble, and always has.

        The premise of the laws pushed by open carry advocates is that if we return to the armed-society days of the frontier, bad guys with guns will be more reticent to use their guns improperly, due to the prospect of return fire. An argument can be made that this in fact worked in the American West, where repeating “assault weapons” of the day included the Spencer, Henry and Winchester repeating rifles.

        Unfortunately (or maybe fortunately), in the wake of these laws, most people have not seen fit to arm-up to do what the laws encourage. This particular guy did. However posthole stupid the conduct was, it is exactly what the laws adopted by Missouri are designed to encourage. The prosecutor is in a posture of charging this man criminally for doing what Missouri’s legislature wants everyone to do.

        Reply
          1. B. McLeod

            The theory behind it depends upon people to doing it. They want and need people to do it (as they see it). It isn’t working because most people aren’t desirous of returning to that time in history.

            Reply
    2. Hunting Guy

      Andrew F. Branca, Esq.

      “In short, anyone who is exercising their Second Amendment rights on the basis of MUAH RAHTS!!!11!!!” and in such a way that the actual and reasonably foreseeable effect is to undermine generalized political support for the Second Amendment is no genuine friend of the Second Amendment. They are, rather, engaged in self-serving, attention-grabbing behavior that is detrimental to the Second Amendment. They are no ally of the Second Amendment, and no friend of mine.”

      Reply
      1. B. Mcleod

        If we were to look behind what the defendant says he was doing, the real predictable impact, given the location and timing amounts to a demonstration to the Missouri Legislature that there may be issues with their laws. In the rush to adopt firearms-friendly laws, the Missouri Legislature overrode the governor’s veto on a number of the enactments that have contributed to the current state of their law. Many of these state legislative schemes go well beyond second amendment concerns and (in my opinion) well beyond what most gun owning citizens really need or want. But, they have done what they have done, and they should not allow charges against people who are only doing what they have seen fit to encourage. And in this regard, it is immaterial what his true political intention may be.

        Reply
  6. John Barleycorn

    WTF?!  Not a even a word about how them there Missouri laws play out concerning “good” guys packing guns getting shot in the face by legal carry 2nd Amendment Loons after said “good” guys draw first on the 2nd Amendment Loons going about their business because they are “scared” of only a slightly enhanced reflection of their own image in the mirror?

    Let alone “good” guys holding “assholes” at gun point till the BADGE arrives just because someone has to “do it” I guess?

    Anyway, I feel gypped!!! And it is your fault!

    P.S. I think you are minimizing the asshole’s accessorizing with body armor which is a really nice touch especially if you think about the possibility of a cop inquireing about his Loon-ness instead of a firefighter. Thus, I would have probably gone with Fucking Asshole.

    Although Complete Fucking Asshole is probably more accurate considering he should have gone with black body armor as sign of morning for the recently departed souls in Texas and Ohio.

    P.S.S. I love this country. And as a fucking bonus we even have places like Wal-Mart. So, why is it again….that we can’t have nice things?!

    Reply
      1. Sol Wisenberg

        Right. I used it the other day and the GDL came after me. We use chintzed in our household. It has yet to be deemed unacceptable and I refuse to delve into its origins for fear I won’t be able to use it anymore.

        Reply

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