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View Full Version : Concealing a mag while Open Carrying


Standard
07-11-2008, 12:36 PM
Apparently it is illegal to conceal a loaded mag while open carrying, as it is considered a part of the firearm, but what if you have an empty mag in the gun, and a loaded mag in your pocket?
Can the loaded mag be considered part of the gun if the gun already contains a magazine, and can, therefore, not accept another?

MudCamper
07-11-2008, 12:40 PM
Apparently it is illegal to conceal a loaded mag while open carrying, as it is considered a part of the firearm, but what if you have an empty mag in the gun, and a loaded mag in your pocket?
Can the loaded mag be considered part of the gun if the gun already contains a magazine, and can, therefore, not accept another?

While I would agree with your contention that, with an empty mag already in the gun, how could any sane person continue to make the insane judgement that another concealed mag makes your gun concealed. Howeverm the entire idea in the first place (People v Hale) is totally insane. Therefore, if an appeals court could have made the insane ruling in the first place, then they could do it again in your example. It's stupid beyond belief, but best not to conceal your mags.

Ironchef
07-11-2008, 12:52 PM
That, and the odds of a cop following that reasoning is hardly likely.

"Oh, so the empty mag is what's considered part of the gun, not the loaded one you have concealed! My bad! On your way good and lawful citizen! I'm off to the donut house to memorize more PC!"

Glock22Fan
07-11-2008, 1:00 PM
It is indeed insane. Just mental games, but I've been wondering a couple of related questions too. There's probably no safe answer until someone becomes a case law example but I'll mention them anyway.

1) If a loaded magazine can be considered to be a firearm, what if you have a concealed loaded magazine in your pocket but no gun? Seems that this should be legal, but I've heard at least one so-called expert say it isn't.

2) What if you have an openly-carried unloaded gun, openly carried loaded magazines on your belt, and another loaded magazine in your pocket? Common sense would say that you are openly carrying both empty gun and loaded magazines, but I suspect that they could try you if they were bloody minded enough.

Of course, this is all mental mas*****tion. Best to avoid the situation unless you can afford $10K+ to become an example.

Theseus
07-11-2008, 1:25 PM
While I would agree with your contention that, with an empty mag already in the gun, how could any sane person continue to make the insane judgement that another concealed mag makes your gun concealed. Howeverm the entire idea in the first place (People v Hale) is totally insane. Therefore, if an appeals court could have made the insane ruling in the first place, then they could do it again in your example. It's stupid beyond belief, but best not to conceal your mags.

Using the courts line of reasoning if you have a firearm plainly sitting on your seat in an otherwise legal fashion but have the firing pin to that firearm in your pocket, you then could be found guilty of concealed because the firing pin is a major component of a gun, "as to make the weapon readily available for use as a firearm".

I believe that the argument could be made that with an empty magazine in the firearm completes the weapon, and then makes the remaining magazines "additional components" as opposed to "major components". Using this argument may or may not work, only a trial can determine that. . . But remember, when in court you can get VERY creative with the law and often lawyers love it (from what they tell me, many get off on it). The problem is that it won't work on a LEO. They are only creative in finding ways to arrest you, not find you innocent.

And remember folks, I am not a lawyer in life, even though I may or may not play one on TV from time to time. Nothing I say can be considered or is legal advise and relying solely on my words and not consulting trained, educated, and hopefully well informed legal council to form a legal argument is not advisable.

sorensen440
07-11-2008, 1:28 PM
Apparently it is illegal to conceal a loaded mag while open carrying, as it is considered a part of the firearm, but what if you have an empty mag in the gun, and a loaded mag in your pocket?
Can the loaded mag be considered part of the gun if the gun already contains a magazine, and can, therefore, not accept another?

12031. (a) (1) A person is guilty of carrying a loaded firearm when he or she carries a loaded firearm on his or her person or in a vehicle while in any public place or on any public street in an incorporated city or in any public place or on any public street in a prohibited area of unincorporated territory.

[Since this post concentrates on loaded, other parts of 12031 are omitted, including the definitions of other terms in (a)(1).]

(g) A firearm shall be deemed to be loaded for the purposes of this section when there is an unexpended cartridge or shell, consisting of a case that holds a charge of powder and a bullet or shot, in, or attached in any manner to, the firearm, including, but not limited to, in the firing chamber, magazine, or clip thereof attached to the firearm;

except that a muzzle-loader firearm shall be deemed to be loaded when it is capped or primed and has a powder charge and ball or shot in the barrel or cylinder.

Theseus
07-11-2008, 1:33 PM
12031. (a) (1) A person is guilty of carrying a loaded firearm when he or she carries a loaded firearm on his or her person or in a vehicle while in any public place or on any public street in an incorporated city or in any public place or on any public street in a prohibited area of unincorporated territory.

[Since this post concentrates on loaded, other parts of 12031 are omitted, including the definitions of other terms in (a)(1).]

(g) A firearm shall be deemed to be loaded for the purposes of this section when there is an unexpended cartridge or shell, consisting of a case that holds a charge of powder and a bullet or shot, in, or attached in any manner to, the firearm, including, but not limited to, in the firing chamber, magazine, or clip thereof attached to the firearm;

except that a muzzle-loader firearm shall be deemed to be loaded when it is capped or primed and has a powder charge and ball or shot in the barrel or cylinder.

This question was about concealment though and not LOADED. Expressly different problems, thus completely different arguments.

Standard
07-11-2008, 1:47 PM
Yeah, I'm more concerned with it being considered concealed, while openly on my hip.

Librarian
07-11-2008, 2:04 PM
1) If a loaded magazine can be considered to be a firearm, what if you have a concealed loaded magazine in your pocket but no gun? Seems that this should be legal, but I've heard at least one so-called expert say it isn't.

First, a loaded magazine cannot be considered a firearm. No chamber, no barrel, no firing mechanism, no serial number. Both CA and Feds define firearm as the receiver.

It is possible to have both a weapon and a loaded magazine for it, not in the weapon, and have a defined 'loaded gun'. Those lesser places in PC that worry about loaded don't care about whether the ammunition is in a magazine, just that one person has both gun and ammo for it.

There are a few places where ammunition alone, regardless of magazine, is prohibited: airport sterile areas, for one.

sorensen440
07-11-2008, 2:14 PM
This question was about concealment though and not LOADED. Expressly different problems, thus completely different arguments.

no the question in my understanding was concealing a mag while open carrying

Standard
07-11-2008, 2:23 PM
The question was about having a concealed magazine and being considered having a concealed weapon. Loaded or not, doesn't really matter to this scenario.
My question really is whether mag #2 (in one's pocket) is an integral part of the gun, when the gun contains mag #1.

Librarian
07-11-2008, 2:35 PM
The question was about having a concealed magazine and being considered having a concealed weapon. Loaded or not, doesn't really matter to this scenario.
My question really is whether mag #2 (in one's pocket) is an integral part of the gun, when the gun contains mag #1.

It's an 'edge case'.

Logic and reason are on your side. The idea that a magazine is an 'integral part of the gun' is refuted by the existence of multiple magazines in one person's possession. Which one is 'integral'? The gun will fire with either #1 or #2, or even, with some difficulty, without either (assuming no mag disconnect).

Sadly, that seldom has any influence on legal interpretations.

MudCamper
07-11-2008, 3:44 PM
Look, we all agree here that a concealed mag is not a concealed gun, but it is currently case law:

http://login.findlaw.com/scripts/callaw?dest=ca/calapp3d/43/353.html

Theseus
07-11-2008, 5:11 PM
Look, we all agree here that a concealed mag is not a concealed gun, but it is currently case law:

http://login.findlaw.com/scripts/callaw?dest=ca/calapp3d/43/353.html

From my understanding of this board, we are supposed to be discussing not only to share the law, but our interpretation of the law, thus my statements. I understand that the wording of the ruling was incorrect, and thus the argument was incorrect.

The correct wording of rule from People v Hale: "concealment of an essential component of a visible weapon, when done in such a fashion as to make the weapon readily available for use as a firearm"

To me this statement defines what essential is supposed to mean. i.e.

essential component is a component that can make the weapon readily available for use as a firearm.

So we understand that an empty mag in the weapon does not fit the definition, because it does not make make the weapon readily available for use as a firearm, however a loaded one does.

So for this argument the question is whether you can argue that the empty mag in the firearm can make the 2nd, loaded magazine no longer apply to the definition of essential component.

So, we can try to play all sorts of games with this ruling using the definition. Yes, certainly we can all agree this is a dangerous game to play, but fun to play none the less, as long as it remains theory.

Argument: If we can argue that the presence of mag #1 (unloaded) in the mag chamber of the firearm makes mag #2 not qualify as an essential component by fact that the time to disconnect mag #1 from the firearm makes mag #2 not capable of making the weapon readily available for use as a firearm. . then you have an argument.

Otherwise I see little more that can be done.

MudCamper
07-11-2008, 5:17 PM
From my understanding of this board, we are supposed to be discussing not only to share the law, but our interpretation of the law

OK. That's what you are doing. I'm just offering my opinion to the OP as to what is the most legal way to OC in California.

Standard
07-11-2008, 5:32 PM
I know what's legal, and I appreciate the feedback.
I'm just thinking out loud. :)
The laws are so asinine it's ridiculous.

Decoligny
07-11-2008, 9:30 PM
From my understanding of this board, we are supposed to be discussing not only to share the law, but our interpretation of the law, thus my statements. I understand that the wording of the ruling was incorrect, and thus the argument was incorrect.

The correct wording of rule from People v Hale: "concealment of an essential component of a visible weapon, when done in such a fashion as to make the weapon readily available for use as a firearm"

To me this statement defines what essential is supposed to mean. i.e.

essential component is a component that can make the weapon readily available for use as a firearm.

So we understand that an empty mag in the weapon does not fit the definition, because it does not make make the weapon readily available for use as a firearm, however a loaded one does.

So for this argument the question is whether you can argue that the empty mag in the firearm can make the 2nd, loaded magazine no longer apply to the definition of essential component.

So, we can try to play all sorts of games with this ruling using the definition. Yes, certainly we can all agree this is a dangerous game to play, but fun to play none the less, as long as it remains theory.

Argument: If we can argue that the presence of mag #1 (unloaded) in the mag chamber of the firearm makes mag #2 not qualify as an essential component by fact that the time to disconnect mag #1 from the firearm makes mag #2 not capable of making the weapon readily available for use as a firearm. . then you have an argument.

Otherwise I see little more that can be done.

I think that they would assume that all the magazines were equal in their ability to be an essential component. Even with an empty magazine in the mag well, with the push of a button it's out and a concealed loaded mag can be slipped in.

Now let's take the scenario where a cop knows the PC and decides to only do a loaded weapon check. Empty chamber, empty mag, good to go. He turns his back and you slip the concealed loaded mag out of your pocket and "presto chango" you have a removed an essential component of the gun and replaced it with another essential component of the gun and the officer is now confronted with a man who has made his gun "readily available for use as a firearm".

Librarian
07-11-2008, 10:10 PM
The correct wording of rule from People v Hale: "concealment of an essential component of a visible weapon, when done in such a fashion as to make the weapon readily available for use as a firearm"

To me this statement defines what essential is supposed to mean. i.e.

essential component is a component that can make the weapon readily available for use as a firearm.

So we understand that an empty mag in the weapon does not fit the definition, because it does not make make the weapon readily available for use as a firearm, however a loaded one does.

So for this argument the question is whether you can argue that the empty mag in the firearm can make the 2nd, loaded magazine no longer apply to the definition of essential component.
You left off the introductory clause "In our opinion ... " The case also says "Suspecting that an ammunition clip might be readily available " The court's firearms expertise is suspect.

"One portion of the automatic pistol, the housing and barrel, was visible, and it was reasonable for the officer to suspect concealment nearby of the remaining portion of the firearm, the automatic clip and ammunition." See, I don't agree the magazine qualifies as "the remaining portion of the firearm", since PC 12001 says 12001. (a) [omitted]
(b) As used in this title, "firearm" means any device, designed to
be used as a weapon, from which is expelled through a barrel, a
projectile by the force of any explosion or other form of combustion.
(c) As used in Sections 12021, 12021.1, 12070, 12071, 12072,
12073, 12078, 12101, and 12801 of this code, and Sections 8100, 8101,
and 8103 of the Welfare and Institutions Code, the term "firearm"
includes the frame or receiver of the weapon.

I don't think the court's conclusion on the legality of the search is wrong, I think the rest is unsupportable dicta.

Walk the links to Ekberg, and we get [2] With respect to the possession of a firearm charge it is argued that the alleged weapon was not a "deadly weapon" since it was "in disassembled form," with "parts missing," and without bullets or cartridges. Section 2 of what is known as the "Dangerous Weapons' Control Law" (Stats. 1923, p. 695; 1 Deering's Gen. Laws, Act 1970) forbids the possession of certain firearms by one who has been convicted of a felony under the laws of the United States, of the State of California or of any other state or country. There is no evidence that any part of this automatic pistol was missing. While the clip was not in the gun the appellant had it in his pocket. The appellant concedes that the barrel of this gun was less than [94 Cal.App.2d 617] 12 inches in length, and it was stipulated at the trial that the weapon was "capable of being fired," and that it was meant thereby that if a shell had been in the gun at the time the gun would properly discharge the shell. The evidence is sufficient in this respect
Taking the mag out is not 'disassembled' - the gun was arguably unloaded (except used in committing a felony, so 'loaded' in that circumstance - PC 12001, 12023(a) ) and Ekberg was a 'felon in possession' - he couldn't legally have either the gun or the ammo, assembled or disassembled.

Koehn is irrelevant - the weapon was visible [2] The officers also had legal cause to arrest defendant on the weapon charge; the handle of the loaded gun was protruding from the front seat and was observed by Springmeyer as he looked through the windshield.

Tarkington is entirely irrelevant to disassembled - perp had a handgun under his shirt; this was a 'good search' case.

Linden does not address disassembled either - About this time, California Highway Patrolman Moyse [185 Cal.App.2d 755] stopped his car behind the police car, got out, approached and overheard the conversation between defendant and the police officers concerning the ownership of the car and the handwritten bill of sale. At this point French got out of the car, and Moyse directed his flashlight through the open door into the front compartment. He observed two pillows on the seat directly behind the drive wheel, from beneath which he saw and recognized the butt of a revolver. He reached in, raised the cushions to confirm his recognition of what he had seen, stepped back, called Officer Deaver to bring Linden, and while Linden and Deaver were looking, reached into the car and picked up two revolvers which had been partially concealed under the pillows. Both revolvers were fully loaded. Questioned then, defendant stated the revolvers belonged to his wife for her protection, and that he had never been arrested before. Defendant and French were then arrested.

None of the cited precedents support the idea of a magazine as an essential component.

Thus I think the Hale decision with regard to magazines is just nuts.

Not being a lawyer, nor having the deep pockets necessary to litigate it, for the moment we seem to be stuck with it.

Why yes, I do feel better now ... :cool2:

Theseus
07-11-2008, 10:43 PM
OK. That's what you are doing. I'm just offering my opinion to the OP as to what is the most legal way to OC in California.

My mistake then Mud. I read your post and jumped a little more than necessary. I apologize.