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bwiese
07-17-2008, 2:34 PM
This just in.... trustable source.

Also received secondary confirmation as well - this has been copied to other agency/agencies.

Formatting lost, but content unmangled.

It's Sacto PD Management correcting some misperceptions so cops don't "step into it" relating to "unloaded open carry" gatherings.

-Bill



Subject: FW: Sgt's (sic) please review at roll calls
Importance: High

This email has been approved by Capt.

** High Priority **

It has come to my attention that a gun rights group in the Sacramento area may attempt to test officers' knowledge on the firearms laws. Recently an individual called the Sacramento Police Department and inquired about carrying an unloaded handgun in a holster on his belt in public. The caller reported he was told it was illegal and could be arrested. Members of a group known as Open Carry have suggested going to a Sacramento restaurant wearing non-concealed pistols on their belts.

They have indicated someone will call the police and report a subject is wearing a firearm. When police arrive someone from the group will be secretly videotaping the police contact with the armed subject. It seems the group's goal is to have an officer arrest the person for 12025 or seize their firearm and then use the video in a civil law suit against the police officer.

The following are some firearms laws that may apply if confronted with a subject wearing a pistol in a belt holster:

PC 12025 (f), unloaded firearms carried openly in belt holsters are not concealed within the meaning of section 12025.

PC 12025 only applies to concealable firearms, which is defined in PC12001(a) as a pistol, revolver or firearm with a barrel less than 16 inches. There is nothing prohibiting someone from carrying an unloaded, concealed rifle or shotgun on their person or in their vehicle unless the barrel is less than 16 inches.

PC 12031(g), A firearm shall be deemed to be loaded for the purposes of this section when there is an unexpended cartridge or shell 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. **Case law now states the ammunition must be in a position from which is can be fired (People. v. Clark)

PC 12031(e), in order to determine whether or not a firearm is loaded for the purpose of enforcing this section, peace officers are authorized to examine any firearm carried by anyone on his or her person or in a vehicle while in any public place or on any public street in an incorporated city or prohibited area of an unincorporated territory. Refusal to allow a peace officer to inspect a firearm pursuant to this section constitutes probable cause for arrest for violation of this section.

In "People v. Clark" (1996), the California Court of Appeal clarified that in order to be "loaded" a firearm must have ammunition "placed into a position from which it can be fired." It even went so far as to point out as an example of what is not loaded to include shells attached to a shotgun inside a buttstock shell carrier. ** There is a common misconception that merely possessing both a firearm and ammunition in close proximity legally equates to loaded. This mistake stems from several PC sections that do not apply to PC 12031. 12001(j) only applies to 12023 (carry with intent to commit a felony). 12025(b)(6)(A) is a sentence enhancement which only applies if one violates 12025 (carrying concealed).

Scenario: a person is walking down the street with an unloaded pistol carried openly on their belt. There is a loaded magazine for the pistol located next to the pistol in a magazine pouch. You run the pistol through the automated firearm system and there is no dealer record of sale. ** NOT a violation of PC 12025 or PC 12031.

Scenario: a person is walking down the street with a shotgun (18 inch barrel) under their coat. **NOT a 12025 violation.

Scenario: a person walking down the street has a pistol worn openly on their belt with a loaded magazine inserted into the pistol, but no round in the chamber. You run the firearm and there is a dealer record of sale to the suspect. Suspect has no criminal history. **misdemeanor violation of PC 12031. Note: If there is no dealer record of sale for the firearm or the dealer record of sale is not in the suspect's name the charge can be elevated to a felony PC 12031(a)(2)(f).

Remember that in any scenario PC 12031(e) gives you the authority to detain the person so you can inspect the firearm per PC 12031(e). Unless you develop additional probable cause, the length of the detention will be limited to the time required to inspect the firearm.

** With the exception of assault weapons, there is no law that requires a handgun or long gun to be registered with the California Department of Justice. The DOJ registration language found in PC 12025(b)(6) and 12031(a)(2)(f) is a sentencing enhancement if you already have a PC 12025 or PC 12031 violation.

Contact Detective ???? via ???? or ??? - ????. Dispatch can also reach me after hours if needed.

Det. ?????
Sacramento Police Department
??????????
(916) ???-????

oaklander
07-17-2008, 2:37 PM
LOL - sounds like they are worried about a lawsuit!!!

:D

Kelvrick
07-17-2008, 2:38 PM
Hopefully I'm not wrong, but that sounds like a good memo.

bwiese
07-17-2008, 2:38 PM
Yes. I'd also suggest that a backup video(s) be recorded in case the main video op were to be harassed/separated from group.

formerTexan
07-17-2008, 2:42 PM
Yes. I'd also suggest that a backup video(s) be recorded in case the main video op were to be harassed/separated from group.

Always have redundant backups for important stuff! :chris:

Saigon1965
07-17-2008, 2:43 PM
Word is getting out.

Fate
07-17-2008, 2:47 PM
Now to get similar memos issued in all the LE jurisdictions, statewide. :43:

Sig226
07-17-2008, 2:48 PM
Well, I don't like the tone of the letter. However, am I the only one very happy this was issued?!

Seems like a very good step for SFPD to take--- educating their officers.

I only wish this was issued from LAPD. ;)

Harbinger
07-17-2008, 2:49 PM
You run the pistol through the automated firearm system and there is no dealer record of sale.

Isn't this somewhat incorrect?

Really, they're running the pistol to see if it is REGISTERED with the State of California, not whether it was put through the DROS process (which there should be no records of). Am I correct, here?

Mike

Python2
07-17-2008, 2:50 PM
I love it! I wonder when this open carry thing will happen in San Francisco.

Wyatt
07-17-2008, 2:51 PM
PC 12025 only applies to concealable firearms, which is defined in PC12001(a) as a pistol, revolver or firearm with a barrel less than 16 inches. There is nothing prohibiting someone from carrying an unloaded, concealed rifle or shotgun on their person or in their vehicle unless the barrel is less than 16 inches.

Is that a fact?

Shane916
07-17-2008, 2:53 PM
Well, I don't like the tone of the letter. However, am I the only one very happy this was issued?!

Seems like a very good step for SFPD to take--- educating their officers.

I only wish this was issued from LAPD. ;)

Last time I checked Sacramento PD was not San Francisco PD :)

GuyW
07-17-2008, 2:58 PM
"There is nothing prohibiting someone from carrying an unloaded, concealed rifle or shotgun on their person or in their vehicle unless the barrel is less than 16 inches."

"Scenario: a person is walking down the street with a shotgun (18 inch barrel) under their coat. **NOT a 12025 violation"

Oooh, they might wish they had not correctly paraphrased the laws...

bwiese
07-17-2008, 3:00 PM
I love it! I wonder when this open carry thing will happen in San Francisco.

Let's especially keep SF drama-free for now, OK?

With recent litigation, we have enough irons in the fire there that will be quite productive.

jb7706
07-17-2008, 3:01 PM
Any chance our friends in Sac PD will disseminate this to Sac/Placer/Yuba county SO? Is there any cross pollination between municipalities for items like this?

domokun
07-17-2008, 3:04 PM
Scenario: a person walking down the street has a pistol worn openly on their belt with a loaded magazine inserted into the pistol, but no round in the chamber. You run the firearm and there is a dealer record of sale to the suspect. Suspect has no criminal history. *misdemeanor violation of PC 12031. Note: If there is no dealer record of sale for the firearm or the dealer record of sale is not in the suspect's name the charge can be elevated to a felony PC 12031(a)(2)(f).

Did I read that correctly? So loaded magazine in a firearm without a round chambered is considered loaded?

GuyW
07-17-2008, 3:06 PM
Scenario: a person walking down the street has a pistol worn openly on their belt with a loaded magazine inserted into the pistol, but no round in the chamber. You run the firearm and there is a dealer record of sale to the suspect. Suspect has no criminal history. *misdemeanor violation of PC 12031. Note: If there is no dealer record of sale for the firearm or the dealer record of sale is not in the suspect's name the charge can be elevated to a felony PC 12031(a)(2)(f).

Did I read that correctly? So loaded magazine in a firearm without a round chambered is considered loaded?

"PC 12031(g), A firearm shall be deemed to be loaded for the purposes of this section when there is an unexpended cartridge or shell 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."

Ironchef
07-17-2008, 3:10 PM
They have indicated someone will call the police and report a subject is wearing a firearm. When police arrive someone from the group will be secretly videotaping the police contact with the armed subject. It seems the group's goal is to have an officer arrest the person for 12025 or seize their firearm and then use the video in a civil law suit against the police officer.

I'm wondering if this is fabricated so as to inflame things because I seriously doubt the open carry group would illegally call in a "man with a gun" and attempt to set up a cop. The testing of the cop is fine and lawful, but not doing that phone call themselves...and if they provoked a restaurant patron to do it, it'd likewise be unlawful..possibly.

I'm guessing the writer of the memo embelished it or may be assuming this group is trying to sabotage the police. All the OC situations I've seen were caused by phone calls originating from callers unrelated with the group/OCer.

As for the overall letter, I'm very impressed. It's like an awakening of sorts. I'm almost tempted to notify my PD of intentions to have an OC group in town and ask if they're up to speed on applicable laws..maybe give them a reading or copy of the above letter as an example?

MudCamper
07-17-2008, 3:15 PM
I am the author of these two paragraphs:

In "People v. Clark" (1996), the California Court of Appeal clarified that in order to be "loaded" a firearm must have ammunition "placed into a position from which it can be fired." It even went so far as to point out as an example of what is not loaded to include shells attached to a shotgun inside a buttstock shell carrier.

** There is a common misconception that merely possessing both a firearm and ammunition in close proximity legally equates to loaded. This mistake stems from several PC sections that do not apply to PC 12031. 12001(j) only applies to 12023 (carry with intent to commit a felony). 12025(b)(6)(A) is a sentence enhancement which only applies if one violates 12025 (carrying concealed).

Clearly a direct cut and paste (with a couple sentances removed) from the California Open Carry Flyer (http://www.californiaopencarry.org/CaliforniaOpenCarry.pdf). :)

It's sad that they are so paranoid that they think the intent of Open Carry is to file suits against them. The intent is to legally carry for self defense, and to help educate the public and maybe the LEO community. If anything, what we want is to have them on our side, not to "secretly videotape" them while getting arrested. Please.

ChibiPaw
07-17-2008, 3:15 PM
*prods Oaklander* :D

Raystonn
07-17-2008, 3:23 PM
How can I verify the authenticity of this memo. I'd like to spread the word, but I want to make sure it's on the up-and-up.

-Raystonn

GuyW
07-17-2008, 3:24 PM
It's sad that they are so paranoid that they think the intent of Open Carry is to file suits against them.

LOL!

Team Billy Jack has them wearing tinfoil hats and seeing rightwing gun nuts under their beds...

FEDUPWBS
07-17-2008, 3:25 PM
LOL - sounds like they are worried about a lawsuit!!!

:D

Its about time!

FEDUPWBS
07-17-2008, 3:26 PM
How can I verify the authenticity of this memo. I'd like to spread the word, but I want to make sure it's on the up-and-up.

-Raystonn

If BW posted it its good as gold. Spreading this memo is not your job, leave it to the right people.

Fate
07-17-2008, 3:40 PM
If BW posted it its good as gold. Spreading this memo is not your job, leave it to the right people.You don't know what his "job" is. Maybe the new poster is really Sheriff Baca incognito. ;)

tgriffin
07-17-2008, 3:46 PM
If BW posted it its good as gold. Spreading this memo is not your job, leave it to the right people.

Big Big Big +1

chris
07-17-2008, 3:57 PM
i like the memo pretty clear on the PC's and so on. i found to it be clear and understanding.

bwiese
07-17-2008, 4:03 PM
Several comments about veracity:



memo copy from source I've known of for some time, who has some interface
to Sacto LE, "no axe to grind", etc.




secondary semidirect confirmation received also;




the worry about 'being set up' by one of the UOCers calling the police seems real if
you consider this from PD's mindset/persona. That previous UOC 'incidents' in other
areas/PDs resulted from *nongunny* Screaming Nancies calling in is not relevant; I
don't think PD types understand intrinsic "doing something for something's sake" alone,
and perceive this as less "rights affirming" and more toward "let's tangle".




The fact that MudCamper's fine writing was reused from a prior communications w/PD
should not detract from assumption of validity: do remember that Calguns coined the
term "Off List..." and that crept right into the DOJ lexicon..



What this really says is SPD is "aware", and the Captain in question just re-read his "Policeman's Guide to Dangerous Weapons Laws in CA" study guide.

M. Sage
07-17-2008, 4:12 PM
LOL - sounds like they are worried about a lawsuit!!!

:D

*Mumbles something about the government being afraid of the people and liberty.*

PC 12025 only applies to concealable firearms, which is defined in PC12001(a) as a pistol, revolver or firearm with a barrel less than 16 inches. There is nothing prohibiting someone from carrying an unloaded, concealed rifle or shotgun on their person or in their vehicle unless the barrel is less than 16 inches
Is that a fact?

Yep. Read the code section carefully and you'll see it.

Suvorov
07-17-2008, 4:26 PM
All in all, this is a very positive step. Had the Seaside PD received a similar notice several weeks ago, a lot of things would be different.

Wouldn't it be great if various PDs/SOs would produce similar memos concerning OLLs?

outersquare
07-17-2008, 4:29 PM
*Mumbles something about the government being afraid of the people and liberty.*

Yep. Read the code section carefully and you'll see it.

lol cool, time for me to buy a pistol grip shotgun and drop it in my pants

Python2
07-17-2008, 4:52 PM
lol cool, time for me to buy a pistol grip shotgun and drop it in my pants
Watch out what the barrel might hit :eek:

wilit
07-17-2008, 4:55 PM
WOW. Nice to see correct information is being distributed instead of FUD.

sorensen440
07-17-2008, 4:58 PM
I love it I love it I love it :)

joe_sun
07-17-2008, 4:58 PM
PC 12025 only applies to concealable firearms, which is defined in PC12001(a) as a pistol, revolver or firearm with a barrel less than 16 inches. There is nothing prohibiting someone from carrying an unloaded, concealed rifle or shotgun on their person or in their vehicle unless the barrel is less than 16 inches.

This is wrong.. shotguns must be 18 inches.

M. Sage
07-17-2008, 5:04 PM
PC 12025 only applies to concealable firearms, which is defined in PC12001(a) as a pistol, revolver or firearm with a barrel less than 16 inches. There is nothing prohibiting someone from carrying an unloaded, concealed rifle or shotgun on their person or in their vehicle unless the barrel is less than 16 inches.

This is wrong.. shotguns must be 18 inches.

They only mean in reference to that one section.

RossRinSD
07-17-2008, 5:08 PM
That is awesome. I'm still working up the courage to open carry, but the story of the Marine who was arrested on the 4th of July happened only a few blocks from my house. And I can't afford a lawyer...

tenpercentfirearms
07-17-2008, 5:12 PM
I wish I didn't have a CCW. This OC hoopla is making me want to participate! Good show!

Actually here is a good one. I might just carry OC and concealed at the same time! That should be legal.

Meplat
07-17-2008, 5:19 PM
Isn't this somewhat incorrect?

Really, they're running the pistol to see if it is REGISTERED with the State of California, not whether it was put through the DROS process (which there should be no records of). Am I correct, here?

Mike

No. The state of California has for years ignored the provision in the original law that prohibits it from keeping DROS. There was a case decades ago in which the state clamed that, sense it was impossible to insure that computer records would be destroied even if deleted, their emploiees would be in danger of criminal conviction even if they tried to delet the reords. The court made an exception for "magnetic media" so all they have to distroy is the paper records, computer records are exempt. I doubt if anyone even bothers with the paper anymore. Defacto registration from a law that specificallt prohibits it. Ain't government grand?

GuyW
07-17-2008, 5:21 PM
I wish I didn't have a CCW.

THAT is really perverse!

This OC hoopla is making me want to participate! Good show!

Actually here is a good one. I might just carry OC and concealed at the same time! That should be legal.

Narrowly, the CCW is a permit to carry specifically-listed guns loaded and concealed.

So, maybe OC (unloaded) a gun that isn't listed on the CCW works...

...but I think you are jeopardizing your CCW if you OC, unless the Sheriff says its OK...

domokun
07-17-2008, 5:36 PM
I wish I didn't have a CCW. This OC hoopla is making me want to participate! Good show!

Actually here is a good one. I might just carry OC and concealed at the same time! That should be legal.

You could OC that .50 Beowulf AR you got not too long ago. ;)

ldivinag
07-17-2008, 5:36 PM
what would be really sad is if this memo (in its entirety) is "accidentally" faxed to ALL law enforcement dept in kalifornia...

hee hee... :evil smiley:

WokMaster1
07-17-2008, 5:59 PM
LOL - sounds like they are worried about a lawsuit!!!

:D

sounds like you have no use for that guitar bag anymore...:D

Liberty1
07-17-2008, 6:00 PM
I wish I didn't have a CCW.

Dude! A LTC (12050 license to carry) doesn't and can not be reasonably construed to deny you the lawful option of OC, which non LTCers can do.

In fact with your LTC, your exempt from 626.9 (school zones). If your license got illegally revoked you bet this group would back you. I don't see the Kern Co SO being that daft and politically suicidal. If your LTC was revoked you have great standing to be a post Heller Poster Boy! Think of the business opportunities!!!

gotgunz
07-17-2008, 6:04 PM
Any chance our friends in Sac PD will disseminate this to Sac/Placer/Yuba county SO? Is there any cross pollination between municipalities for items like this?

Why bother? Both Placer and Yuba (thank you!) issue ccw's which make open carry..... useless. :rolleyes:

Shane916
07-17-2008, 6:11 PM
Any chance our friends in Sac PD will disseminate this to Sac/Placer/Yuba county SO? Is there any cross pollination between municipalities for items like this?

The memo has made it's way through the SSD.

grammaton76
07-17-2008, 6:13 PM
Scenario: a person is walking down the street with an unloaded pistol carried openly on their belt. There is a loaded magazine for the pistol located next to the pistol in a magazine pouch. You run the pistol through the automated firearm system and there is no dealer record of sale. ** NOT a violation of PC 12025 or PC 12031.

Ok, this right here, even if OC never actually accomplished a single thing towards CCW reform, is worth it.

Hearing the correct answer to, "Is it illegal to have a loaded magazine?" is rare. Correcting that mistake alone will be well worth the open carry efforts put forth.

Saigon1965
07-17-2008, 6:15 PM
This is so exciting. I am still jazzed from Heller.

Gator Monroe
07-17-2008, 6:30 PM
Word is getting out.

Does a CCW help in an open carry situation (or it's not a factor)

SchooBaka
07-17-2008, 6:40 PM
For once, something that actually clarifies the law rather than muddying it.
:hurray:
Thanks Bill.

SchooBaka
07-17-2008, 6:43 PM
The memo has made it's way through the SSD.

One of my relatives husband is with SSD.
I'll have to give em a call and get his opinion.

jmzhwells
07-17-2008, 6:46 PM
(F) Where the person is not listed with the Department of Justice
pursuant to Section 11106, as the registered owner of the pistol,
revolver, or other firearm capable of being concealed upon the
person, by imprisonment in the state prison, or by imprisonment in a
county jail not to exceed one year, or by a fine not to exceed one
thousand dollars ($1,000), or both that fine and imprisonment.

Straight from the penal code, make sure the OC gun is yours or else, see above. A word to the wise, dont borrow your buddy's gun for the purpose of OC. Section 12031 Penal Code

jmzhwells
07-17-2008, 6:48 PM
My bad, thats for loaded firearms, nothings wrong with a piece of metal shaped like a gun

leitung
07-17-2008, 7:18 PM
This could be bittersweet here..
This carrying openly could get us several things..
1) One of our many anti-gun state legislators could hear of this and try to pass laws to close the loop hole.
2) Sheriff's will be more hesitant to issue CCW's to people, especially those engaged in lawful open carry.

However it could be positive:
1) Sheriffs will issue us CCW's so that we just go away and quit bothering them.
2) Sheriffs will try to have laws changed so CCW are easier to get.

Piper
07-17-2008, 7:40 PM
This is a very good thing and a step in the right direction. Unfortunately, this letter is spreading some FUD amonst the LEO's from their supervisors, who are probably getting it from the CLEO, which stirs the pot and creates an even bigger "Us Vs. Them" gap. So, I would expect the LEO/s to be civil, but not very friendly. But then again I could be wrong.

WokMaster1
07-17-2008, 7:45 PM
(F) Where the person is not listed with the Department of Justice
pursuant to Section 11106, as the registered owner of the pistol,
revolver, or other firearm capable of being concealed upon the
person, by imprisonment in the state prison, or by imprisonment in a
county jail not to exceed one year, or by a fine not to exceed one
thousand dollars ($1,000), or both that fine and imprisonment.

Straight from the penal code, make sure the OC gun is yours or else, see above. A word to the wise, dont borrow your buddy's gun for the purpose of OC. Section 12031 Penal Code

what if I bought the gun in 1992 in another state, moved to California in 1995 with it? Of course there will not be a record of it with the CA DOJ or are they referring to the Federal DOJ?

BillCA
07-17-2008, 7:47 PM
Anyone know who is legal council for the Open Carry group?

They have indicated someone will call the police and report a subject is wearing a firearm. When police arrive someone from the group will be secretly videotaping the police contact with the armed subject. It seems the group's goal is to have an officer arrest the person for 12025 or seize their firearm and then use the video in a civil law suit against the police officer.
The above highlighted section is a conclusion on the part of Sac PD or whoever authored the letter. The author of the letter leads street officers to believe this is all some kind of "set-up" as a method to obtain money from the PD's, rather than an exercise of one's rights under the law.

Mr. Wiese - the letter should be forwarded to Open Carry with a request that their legal council send a registered letter to Sacramento PD. The letter should explain that the goal of the group is to legally carry pursuant to the law as an exercise in their lawful rights. Any videotaping that occurs would be strictly to safeguard the civil liberties of the O.C. members.

The letter should also include some statements of O.C.'s actual goals - educating the public, legally exercising one's rights under the law, etc. - and that the organization seeks to also educate law enforcement officers, not challenge them.

outersquare
07-17-2008, 7:53 PM
hmm even better i wonder if i can carry around a duffle bag with my saiga and mags in it

Piper
07-17-2008, 8:01 PM
Anyone know who is legal council for the Open Carry group?


The above highlighted section is a conclusion on the part of Sac PD or whoever authored the letter. The author of the letter leads street officers to believe this is all some kind of "set-up" as a method to obtain money from the PD's, rather than an exercise of one's rights under the law.

Mr. Wiese - the letter should be forwarded to Open Carry with a request that their legal council send a registered letter to Sacramento PD. The letter should explain that the goal of the group is to legally carry pursuant to the law as an exercise in their lawful rights. Any videotaping that occurs would be strictly to safeguard the civil liberties of the O.C. members.

The letter should also include some statements of O.C.'s actual goals - educating the public, legally exercising one's rights under the law, etc. - and that the organization seeks to also educate law enforcement officers, not challenge them.

I would like to be a fly on the wall when they receive that letter. I'm reasonably certain that was supposed to be an intradepartmental memo, so they're gonna want to know how it was "leaked" to Calguns.

CitaDeL
07-17-2008, 8:05 PM
Anyone know who is legal council for the Open Carry group?


The above highlighted section is a conclusion on the part of Sac PD or whoever authored the letter. The author of the letter leads street officers to believe this is all some kind of "set-up" as a method to obtain money from the PD's, rather than an exercise of one's rights under the law.

Mr. Wiese - the letter should be forwarded to Open Carry with a request that their legal council send a registered letter to Sacramento PD. The letter should explain that the goal of the group is to legally carry pursuant to the law as an exercise in their lawful rights. Any videotaping that occurs would be strictly to safeguard the civil liberties of the O.C. members.

The letter should also include some statements of O.C.'s actual goals - educating the public, legally exercising one's rights under the law, etc. - and that the organization seeks to also educate law enforcement officers, not challenge them.

A letter to "Open Carry" would wind up in the dead letter office, as there is no organized membership and no 'clubhouse'. These assumptions that the objective of exposed carry is to instigate a lawsuit are not based in fact, but conjecture. No "Open Carry" group, means no retained counsel- at least, if there is counsel, it is on an individual basis.

This does not negate the need of a well thought out and written response letter though...

Im kind of curious as to when this was drafted... there is no acknowledgement of our April dinner in Sacramento...

FEDUPWBS
07-17-2008, 8:07 PM
I would like to be a fly on the wall when they receive that letter. I'm reasonably certain that was supposed to be an intradepartmental memo, so they're gonna want to know how it was "leaked" to Calguns.

:D:D:D:cool::cool::cool:

GuyW
07-17-2008, 8:11 PM
I'm reasonably certain that was supposed to be an intradepartmental memo, so they're gonna want to know how it was "leaked" to Calguns.

It's still a public document (its just that we don't usually know the documents exist)

MrTuffPaws
07-17-2008, 8:18 PM
As a resident of Sac county, this is wonderful news.

Meplat
07-17-2008, 8:33 PM
2) Sheriffs will try to have laws changed so CCW are easier to get.[/QUOTE]

That does not take a change in the law, just a sherif with balls, l:Dike Margi Mims.:D

Peashooter
07-17-2008, 8:36 PM
No. The state of California has for years ignored the provision in the original law that prohibits it from keeping DROS. There was a case decades ago in which the state clamed that, sense it was impossible to insure that computer records would be destroied even if deleted, their emploiees would be in danger of criminal conviction even if they tried to delet the reords. The court made an exception for "magnetic media" so all they have to distroy is the paper records, computer records are exempt. I doubt if anyone even bothers with the paper anymore. Defacto registration from a law that specificallt prohibits it. Ain't government grand?


So if you were to fill out the DOJ voluntary registration form, You would be infact admitting guilt for not going through Dros?
Correct?

fairfaxjim
07-17-2008, 8:37 PM
what if I bought the gun in 1992 in another state, moved to California in 1995 with it? Of course there will not be a record of it with the CA DOJ or are they referring to the Federal DOJ?

They are referring to CA DOJ, not federal. Handguns are registered as a consequence of the DROS when purchased. In the event that you are charged with a loaded or concealed weapon AND that gun is NOT registered with the CA COJ, they have the option of charging it as a felony. It would not be wise to "push the envelope" with an unregistered firearm. It is another strange quirk of the CA gun laws. Unregistered firearm is not a crime in itself, but it can "enhance" other gun crimes. You can voluntarily register you gun(s) with the DOJ - forms are available for download on their website - if you desire.

Meplat
07-17-2008, 8:49 PM
So if you were to fill out the DOJ voluntary registration form, You would be infact admitting guilt for not going through Dros?
Correct?

I'm not a lawtwister but I would not argue with that premis. That may be a good thing. The courts have in the past ruled that a convicted fellon does not have to register his gun because it would be an admission of guilt. But there are many ways to obtain ownership of a pistol without going through the DROS process. Less all the time but still? If you are old like me it's cake. I can remember buying leagally without a DROS.

WokMaster1
07-17-2008, 9:22 PM
They are referring to CA DOJ, not federal. Handguns are registered as a consequence of the DROS when purchased. In the event that you are charged with a loaded or concealed weapon AND that gun is NOT registered with the CA COJ, they have the option of charging it as a felony. It would not be wise to "push the envelope" with an unregistered firearm. It is another strange quirk of the CA gun laws. Unregistered firearm is not a crime in itself, but it can "enhance" other gun crimes. You can voluntarily register you gun(s) with the DOJ - forms are available for download on their website - if you desire.

Jim, so what happens to those handguns that Californians own before the DROS system came into law? Would a simple sales receipt do show proof?

Are you saying that the handguns that I bought when I lived in GA, FL & NV are not considered registered to me because there was no record in CA's books?:eek:

hoffmang
07-17-2008, 9:37 PM
So if you were to fill out the DOJ voluntary registration form, You would be infact admitting guilt for not going through Dros?
Correct?

No. There is in fact a safe harbor in the law that means you can't be prosecuted for violating certain parts of the Penal Code if the only way the State is notified about the violation is by the submission of a voluntary registration form for handguns.

-Gene

PzKfW
07-17-2008, 9:41 PM
Go Bwiese, go! This is an exciting time to someone (me) who never knew the era of cash and carry, and of no waiting periods, and of no registration...

tombinghamthegreat
07-17-2008, 11:43 PM
1) One of our many anti-gun state legislators could hear of this and try to pass laws to close the loop hole.


This could be be a good thing because it could lead to a appeal to the supreme court in the post heller era, upholding that open carry is an individual right.

Bizcuits
07-18-2008, 12:17 AM
As a resident of Sac county, this is wonderful news.

+1

It's about time Sacramento residents got a ****ing bone!

ZapThyCat
07-18-2008, 12:33 AM
What a load of crap! The aim of open carry is NOT to get a lawsuit going against cops, it's to educate cops and the public on open carry laws. The purpose of the video camera is so that our rights are not violated.

cbn620
07-18-2008, 12:38 AM
Hold up, I can't understand the poorly written parts about DROS and registrations. If a weapon is run by the police and they find no DROS, that's not illegal? Then what's the purpose of DROS? Furthermore, why then are PPT's such a problem? If a DROS or lack thereof doesn't cause a red flag when the police run the weapon, theoretically people could give firearms to one and other with no concern. Or am I reading that wrong? Again, a few portions are kind of worded poorly.

AJAX22
07-18-2008, 12:43 AM
Repeat after me..... "Long guns are Not Registered, Long guns are Not registered.... Long guns are not....."


Even Pistols didn't have to be registered if they were aquired through private party transactions prior to 1991

You don't have to register the pistols you had before that.

Also, there is no requirement that you register pistols that you make yourself.


oh and did I mention that "Long guns are Not Registered"


C&R title 1 firearms (as in non pistols) which are 50 years or older are still exempt.




If you would like a nice (legal) rifle or shotgun handed to you (Cash and cary Right NOW) I'll sell you one (if you are over 18 and not a prohibited person)

50 year old long guns are STILL exempt from requiring a dealer to process the transfer.


Oh and did I mention... "Long guns are not registered"?





Don't break the law.... (not even 'in theory') and I'm sorry for being a jerk about this, but it just blows my mind that people are so used to filling out forms to buy guns they don't know about the C&R exceptions that are currently available... and they don't understand that it wasn't always this way.

What amazes me even more is that I used to hold the same misconceptions.

cbn620
07-18-2008, 1:00 AM
Okay, so a person has a pistol they've had for years and years and years, before there were any mandatory DROS or anything of that sort. It's not quite C&R status, it's about 30-40 years old. Could that item be gifted sans DROS?

Librarian
07-18-2008, 1:47 AM
Are you saying that the handguns that I bought when I lived in GA, FL & NV are not considered registered to me because there was no record in CA's books?:eek:
Yes.

CA usually doesn't care. It's just that one sentence enhancement bit for CCW and Ammo and not in CA's records that is an exposure - and that doesn't make sense (not that our Fine Legislators seem to care about such mundane concerns) since registration is not reqired.

Evidently, Someone Was Not Told That when 12025(b)(6) was written.

Librarian
07-18-2008, 1:51 AM
Hold up, I can't understand the poorly written parts about DROS and registrations. If a weapon is run by the police and they find no DROS, that's not illegal?

Correct.

Then what's the purpose of DROS?

Nanny-statism, I guess.

Furthermore, why then are PPT's such a problem?

Who says they are? They seem to work just fine, if you don't mind paying the fee; they work better than buying new.

If a DROS or lack thereof doesn't cause a red flag when the police run the weapon, theoretically people could give firearms to one and other with no concern.

Theoretically. It'd be illegal, these days.

Or am I reading that wrong? Again, a few portions are kind of worded poorly.

No, you're not reading that wrong.

Librarian
07-18-2008, 1:54 AM
Okay, so a person has a pistol they've had for years and years and years, before there were any mandatory DROS or anything of that sort. It's not quite C&R status, it's about 30-40 years old. Could that item be gifted sans DROS?Sure - to a grandparent/parent or child/grandchild. Still have to file the intrafamilial transfer form, but that's not a Dealer's Record of Sale.

Otherwise, need the FFL dealer.

cbn620
07-18-2008, 3:39 AM
Ah, I've got it now. You see I have never actually done a PPT but I have seen the signs at my local gun stores that tell you how to transfer guns, and the fee associated. I had assumed, and now I realize wrongly, that this fee went towards a DROS.

And yes, fear not, I am fully aware of the C&R laws out there. That much I am familiar with since military surplus has found itself to be one of my preferred hobbies and was probably my big entrance into shooting sports. I was referring to new firearms when I was talking about police running scans on firearms.

Thanks for the info.

Decoligny
07-18-2008, 6:57 AM
LOL - sounds like they are worried about a lawsuit!!!

:D

Well, now that there is a training memo out, they have no legal excuse if they decide to violate any Open Carriers rights.

Now if they do something stupid, like the LEOs in Turlock, they can't claim ignorance of the legality of Unloaded Open Carry with Loaded Mags on the belt.

redcliff
07-18-2008, 7:37 AM
THAT is really perverse!



Narrowly, the CCW is a permit to carry specifically-listed guns loaded and concealed.

So, maybe OC (unloaded) a gun that isn't listed on the CCW works...

...but I think you are jeopardizing your CCW if you OC, unless the Sheriff says its OK...

I agree, up here in Shasta County we've had at least one person lose their CCW for carrying open.

Decoligny
07-18-2008, 8:02 AM
"WAR IS INDECENT"


Yeah, so are tits that hang down to your belt. Are we allowed to say "tits" on here?

If it didn't come out as **** then you are allowed to say it.

Gator Monroe
07-18-2008, 8:23 AM
I'm going to consult the Rabbi & other machers about me OC'ing at Shabbat Services and torah study ...

Gator Monroe
07-18-2008, 8:29 AM
I agree, up here in Shasta County we've had at least one person lose their CCW for carrying open. I would not want to hurt my chance for getting a CCW later (So I will be sure it's kosher with all Temple members that I'm OC'ing (On private propertyenclosed parking area or inside Temple building only) and will not OC if one of the few other temple members with CCW are packing ...

Liberty1
07-18-2008, 8:34 AM
I agree, up here in Shasta County we've had at least one person lose their CCW for carrying open.

And I also remember that some so called "defensive firearm carry" supporters had their fun with that incident even backing and supporting the sheriff's unlawful actions. Post Heller and with a little thought for decency and the rule of law that sheriff should man up and reinstate that license.

Those of us who support OC should also be willing to support any unjust revocation of our CCW brothers licenses. And visa versa.

I would think some 14th A. attorneys would want to jump on that case.

Revocation of a license because the sheriff doesn't like California lawful unloaded open carry is akin to revoking the license because the licensee walked down the street holding a black woman's hand and the sheriff disapproved of HIS license holders lawful actions. How dare HIS sheeple stay from HIS flock. The nerve of some of us California serfs.

sorry OT

Librarian
07-18-2008, 10:25 AM
(Pardon the thread-within-the-thread, please :) )
Ah, I've got it now. You see I have never actually done a PPT but I have seen the signs at my local gun stores that tell you how to transfer guns, and the fee associated. I had assumed, and now I realize wrongly, that this fee went towards a DROS.

The PPT fee to the dealer is in addition to the DROS fee - the buyer is treated just as if s/he were buying from dealer stock, and the PPT fee is supposed to compensate (at least partially) the dealer for profits s/he might have made in a 'direct' sale. The PPT advantages are mostly (a) not limited to guns on the Roster and (b) lets people clean out their safes or otherwise sell guns that no longer suit their needs/interests.

Back on topic: I, too, found it amusing to recognize a lot of the language in the SPD letter. Share the love, officers.

Decoligny
07-18-2008, 10:39 AM
Scenario: a person is walking down the street with an unloaded pistol carried openly on their belt. There is a loaded magazine for the pistol located next to the pistol in a magazine pouch. You run the pistol through the automated firearm system and there is no dealer record of sale. ** NOT a violation of PC 12025 or PC 12031.

I am suprised nobody else has caught the major error in this little tidbit yet.

With the above scenario, the officer who is running the pistol through the automated firearm system is violating your 4th amendment rights. He is on a fishing expidition to try to find out if your weapon is stolen. He doesn't have any reasonable articulable suspicion to justify further investigation.

If you are commiting no crime, and are only open carrying, then the only thing the officer is legally supposed to be able to do is check to see if the firearm is loaded. If it is not, then they should IMMEDIATELY return your weapon to your holster and leave you in peace to go about your business.

Liberty1
07-18-2008, 10:56 AM
good catch :)

MudCamper
07-18-2008, 11:00 AM
Scenario: a person is walking down the street with an unloaded pistol carried openly on their belt. There is a loaded magazine for the pistol located next to the pistol in a magazine pouch. You run the pistol through the automated firearm system and there is no dealer record of sale. ** NOT a violation of PC 12025 or PC 12031.

I am suprised nobody else has caught the major error in this little tidbit yet.

With the above scenario, the officer who is running the pistol through the automated firearm system is violating your 4th amendment rights. He is on a fishing expidition to try to find out if your weapon is stolen. He doesn't have any reasonable articulable suspicion to justify further investigation.

If you are commiting no crime, and are only open carrying, then the only thing the officer is legally supposed to be able to do is check to see if the firearm is loaded. If it is not, then they should IMMEDIATELY return your weapon to your holster and leave you in peace to go about your business.

You are correct. And the author even included the correct info in the very same memo. He's contradicting himself:

Remember that in any scenario PC 12031(e) gives you the authority to detain the person so you can inspect the firearm per PC 12031(e). Unless you develop additional probable cause, the length of the detention will be limited to the time required to inspect the firearm.

swhatb
07-18-2008, 11:37 AM
tag...

TregoMark
07-18-2008, 11:39 AM
The memo is legit. It was in my dept inbox a few days ago. I think it is a very good thing that local agencies are addressing the open carry issue and educating their officers.

I haven't yet seen a similar memo regarding OLLs though from any other agencies though. Iíve been educating my people through my capacity as an instructor on open carry and OLLs for awhile now.

Liberty1
07-18-2008, 11:41 AM
The memo is legit. It was in my dept inbox a few days ago. I think it is a very good thing that local agencies are addressing the open carry issue and educating their officers.

I haven't yet seen a similar memo regarding OLLs though from any other agencies though. Iíve been educating my people through my capacity as an instructor on open carry and OLLs for awhile now.

Thanks and welcome. I'm 830 too. :D

PatriotnMore
07-18-2008, 11:52 AM
The memo is legit. It was in my dept inbox a few days ago. I think it is a very good thing that local agencies are addressing the open carry issue and educating their officers.

I haven't yet seen a similar memo regarding OLLs though from any other agencies though. Iíve been educating my people through my capacity as an instructor on open carry and OLLs for awhile now.

Outstanding, we need more LEO's such as you working and training in the departments. I truly believe most law abiding citizens want to work hand in hand with LEO's, especially concerning gun issues. The citizenry is not asking for special privilege, just that our rights are respected, and honored.

Ironchef
07-18-2008, 12:50 PM
The memo is legit. It was in my dept inbox a few days ago. I think it is a very good thing that local agencies are addressing the open carry issue and educating their officers.

I haven't yet seen a similar memo regarding OLLs though from any other agencies though. Iíve been educating my people through my capacity as an instructor on open carry and OLLs for awhile now.

Trego, any chance you can produce a "copy" of the memo? Also, what agency are you with, or city? Be interesting to see if this memo is circulating far and wide..or just Sac county.

artherd
07-18-2008, 1:24 PM
I'm still working up the courage to open carry, ...I can't afford a lawyer...

YOU SHOULD NOT OPEN CARRY!!!

Don't even try it unless you have 10 grand minimum (and that's if you're lucky and get it tossed pretrial.)

Look guys, this is not a great idea to begin with en-masse post heller pre-incorporation!!! It will not play well and may cost gun rights advocates a ton more money.

Secondly, the NRA and CGF and the like cannot afford to bail all of you out if you get in over your heads here.

If you OC, be prepared to deal with the consequences.

That said, this is a *great* letter! Carrying it with you should you decide you've got 10-50k burning a hole in your pocket and have a bad attitude (like I did with the OLLs :) is a good precaution.

artherd
07-18-2008, 1:30 PM
I am the author of these two paragraphs:
Clearly a direct cut and paste (with a couple sentances removed) from the California Open Carry Flyer (http://www.californiaopencarry.org/CaliforniaOpenCarry.pdf). :)

It's sad that they are so paranoid that they think the intent of Open Carry is to file suits against them. The intent is to legally carry for self defense, and to help educate the public and maybe the LEO community. If anything, what we want is to have them on our side, not to "secretly videotape" them while getting arrested. Please.

Send 'em a bill! ;)

TregoMark
07-18-2008, 2:28 PM
The memo has been circulated to officers/deputies/agents in at least 12 different agencies/depts. in Nor CA - probably more by now. This is not to say all of these agencies are officially aware of the memo, but I'd suspect that OC will be a topic of discussion and training in the near future for many of these agencies/depts. Again, I see this as a good thing.

Soldier415
07-18-2008, 2:30 PM
The meno has been currculated to officers/deputies/agents in at least 12 different agencies/depts in Nor CA - probably more by now. This is not to say all of these agancies are officially awaire of the memo, but I'd suspect that OC will be a topic of discussion and training in the near future for many of these agencies/depts. Again, I see this as a good thing.

You have firsthand knowledge of this?

Adonlude
07-18-2008, 2:52 PM
That said, this is a *great* letter! Carrying it with you should you decide you've got 10-50k burning a hole in your pocket and have a bad attitude (like I did with the OLLs :) is a good precaution.

How does excercising your right to open carry or owning a legal OLL rifle imply a bad attitude?

hoffmang
07-18-2008, 2:54 PM
How does excercising your right to open carry or owning a legal OLL rifle imply a bad attitude?

Ben's point was that you best be prepared to fight after being detained, arrested, and potentially arraigned.

-Gene

DVLDOC
07-18-2008, 2:58 PM
How does excercising your right to open carry or owning a legal OLL rifle imply a bad attitude?

+1

Do you also need 10K PLUS just to rally/picket outside to exercise your FREEDOM OF SPEECH?

TregoMark
07-18-2008, 3:13 PM
You have firsthand knowledge of this?


Yes.

jeez my spelling is bad today.

natedogg1777
07-18-2008, 3:31 PM
Just confirmed with my cousin (Sac County Sheriff) that he received this in an e-mail. Trying to get the actual e-mail from him...

Glock22Fan
07-18-2008, 3:41 PM
If they are really serious about avoiding problems, they would issue this memo as an official document to whomsoever asks for it, so they could show it to any cops that don't quite remember their training.

Ironchef
07-18-2008, 4:02 PM
I'm gonna ask an Antioch cop if he's heard of this memo and if not, what his take on UOC is? I'd like to take my family to a park sometime.

And don't worry artherd, I'm not gonna hit up CGF for help when I'm thrown in jail for my bad attitude.

Theseus
07-18-2008, 4:42 PM
Scenario: a person is walking down the street with an unloaded pistol carried openly on their belt. There is a loaded magazine for the pistol located next to the pistol in a magazine pouch. You run the pistol through the automated firearm system and there is no dealer record of sale. ** NOT a violation of PC 12025 or PC 12031.

I am suprised nobody else has caught the major error in this little tidbit yet.

With the above scenario, the officer who is running the pistol through the automated firearm system is violating your 4th amendment rights. He is on a fishing expidition to try to find out if your weapon is stolen. He doesn't have any reasonable articulable suspicion to justify further investigation.

If you are commiting no crime, and are only open carrying, then the only thing the officer is legally supposed to be able to do is check to see if the firearm is loaded. If it is not, then they should IMMEDIATELY return your weapon to your holster and leave you in peace to go about your business.

I did notice this and was going to say something, but you beat me to it. The law provides him the ability to inspect to make sure it is loaded, and for no other reason.

Not that I am suggesting you take it back from him, I would suggest that if he begins to move away or suggest an intent to do anything else other than check to see if it is loaded that you mention the 4th amendment and that he only has the permission to inspect for the purpose of PC12031(e). If he would like to run it through the system he will need a warrant.

LOW2000
07-18-2008, 5:29 PM
I'm gonna ask an Antioch cop if he's heard of this memo and if not, what his take on UOC is? I'd like to take my family to a park sometime.

And don't worry artherd, I'm not gonna hit up CGF for help when I'm thrown in jail for my bad attitude.

Make sure you search your city and county municipal codes (they are online) for prohibitions of carry of ANY firearm loaded or not in city parks. I know a lot of cities (Temecula for one) have this restriction.

fullrearview
07-18-2008, 5:50 PM
ya sac pd is in a huge budget crunch....they dont need that. However, they better know the law and protect their open carry right!

fullrearview
07-18-2008, 5:52 PM
+1

Do you also need 10K PLUS just to rally/picket outside to exercise your FREEDOM OF SPEECH?

not when your in berkley and stepping on others rights to enter a marine recruiter! I still cant believe berkley pd didnt stop that

hoffmang
07-18-2008, 6:23 PM
+1

Do you also need 10K PLUS just to rally/picket outside to exercise your FREEDOM OF SPEECH?

I admire your idealism. However, your idealism isn't useful when you can't make bail or lose your job because you're charged with a crime.

Please be careful. Things are changing quickly our way. Getting ahead of ourselves can only hurt people on our side for no good reason.

-Gene

eow12212012
07-18-2008, 6:47 PM
This just in.... trustable source.

Also received secondary confirmation as well - this has been copied to other agency/agencies.

Formatting lost, but content unmangled.

It's Sacto PD Management correcting some misperceptions so cops don't "step into it" relating to "unloaded open carry" gatherings.

-Bill



Subject: FW: Sgt's (sic) please review at roll calls
Importance: High

This email has been approved by Capt.

** High Priority **

It has come to my attention that a gun rights group in the Sacramento area may attempt to test officers' knowledge on the firearms laws. Recently an individual called the Sacramento Police Department and inquired about carrying an unloaded handgun in a holster on his belt in public. The caller reported he was told it was illegal and could be arrested. Members of a group known as Open Carry have suggested going to a Sacramento restaurant wearing non-concealed pistols on their belts.

They have indicated someone will call the police and report a subject is wearing a firearm. When police arrive someone from the group will be secretly videotaping the police contact with the armed subject. It seems the group's goal is to have an officer arrest the person for 12025 or seize their firearm and then use the video in a civil law suit against the police officer.

The following are some firearms laws that may apply if confronted with a subject wearing a pistol in a belt holster:

PC 12025 (f), unloaded firearms carried openly in belt holsters are not concealed within the meaning of section 12025.

PC 12025 only applies to concealable firearms, which is defined in PC12001(a) as a pistol, revolver or firearm with a barrel less than 16 inches. There is nothing prohibiting someone from carrying an unloaded, concealed rifle or shotgun on their person or in their vehicle unless the barrel is less than 16 inches.

PC 12031(g), A firearm shall be deemed to be loaded for the purposes of this section when there is an unexpended cartridge or shell 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. **Case law now states the ammunition must be in a position from which is can be fired (People. v. Clark)

PC 12031(e), in order to determine whether or not a firearm is loaded for the purpose of enforcing this section, peace officers are authorized to examine any firearm carried by anyone on his or her person or in a vehicle while in any public place or on any public street in an incorporated city or prohibited area of an unincorporated territory. Refusal to allow a peace officer to inspect a firearm pursuant to this section constitutes probable cause for arrest for violation of this section.

In "People v. Clark" (1996), the California Court of Appeal clarified that in order to be "loaded" a firearm must have ammunition "placed into a position from which it can be fired." It even went so far as to point out as an example of what is not loaded to include shells attached to a shotgun inside a buttstock shell carrier. ** There is a common misconception that merely possessing both a firearm and ammunition in close proximity legally equates to loaded. This mistake stems from several PC sections that do not apply to PC 12031. 12001(j) only applies to 12023 (carry with intent to commit a felony). 12025(b)(6)(A) is a sentence enhancement which only applies if one violates 12025 (carrying concealed).

Scenario: a person is walking down the street with an unloaded pistol carried openly on their belt. There is a loaded magazine for the pistol located next to the pistol in a magazine pouch. You run the pistol through the automated firearm system and there is no dealer record of sale. ** NOT a violation of PC 12025 or PC 12031.

Scenario: a person is walking down the street with a shotgun (18 inch barrel) under their coat. **NOT a 12025 violation.

Scenario: a person walking down the street has a pistol worn openly on their belt with a loaded magazine inserted into the pistol, but no round in the chamber. You run the firearm and there is a dealer record of sale to the suspect. Suspect has no criminal history. **misdemeanor violation of PC 12031. Note: If there is no dealer record of sale for the firearm or the dealer record of sale is not in the suspect's name the charge can be elevated to a felony PC 12031(a)(2)(f).

Remember that in any scenario PC 12031(e) gives you the authority to detain the person so you can inspect the firearm per PC 12031(e). Unless you develop additional probable cause, the length of the detention will be limited to the time required to inspect the firearm.

** With the exception of assault weapons, there is no law that requires a handgun or long gun to be registered with the California Department of Justice. The DOJ registration language found in PC 12025(b)(6) and 12031(a)(2)(f) is a sentencing enhancement if you already have a PC 12025 or PC 12031 violation.

Contact Detective ???? via ???? or ??? - ????. Dispatch can also reach me after hours if needed.

Det. ?????
Sacramento Police Department
??????????
(916) ???-????



Thanks, the letter above made my Friday, a FUD free Friday.

FABIO GETS GOOSED!!!
07-18-2008, 6:54 PM
Are there express statutory or regulatory limitations on when LEO can run a firearm's serial number through the system? If not, can someone articulate the 4th amendment problem if the LEO, while inspecting your firearm to see if it's loaded, either memorizes or writes down the serial number, then runs it through the system? Assume you are not being detained while he's running the serial number through the system; he or she inspects the firearm and gives it back to you and you're free to leave, then he runs the number.

hoffmang
07-18-2008, 7:05 PM
Are there express statutory or regulatory limitations on when LEO can run a firearm's serial number through the system? If not, can someone articulate the 4th amendment problem if the LEO, while inspecting your firearm to see if it's loaded, either memorizes or writes down the serial number, then runs it through the system? Assume you are not being detained while he's running the serial number through the system; he or she inspects the firearm and gives it back to you and you're free to leave, then he runs the number.

In your hypothetical, the only restriction I'm aware of on checking AFS is that AW can't be checked over unencrypted air waves.

AFS access is otherwise restricted by department policy. That policy would be the determining factor on your question.

-Gene

FABIO GETS GOOSED!!!
07-18-2008, 7:29 PM
In your hypothetical, the only restriction I'm aware of on checking AFS is that AW can't be checked over unencrypted air waves.

AFS access is otherwise restricted by department policy. That policy would be the determining factor on your question.

-Gene

Sounds like Sacramento PD is OK with checking AFS in these kinds of firearms inspections. I'm not sure there's a 4th amendment issue with running the serial number without detaining the gun owner. Even assuming there's an issue with running the serial number while detaining the gun owner, it seems like one of those technical things where the remedy isn't worth the effort.

Another question, is the gun owner really being "detained" when the cop is examining the firearm under 12031(e)? The published cases don't even want to call the examination a "search" and they aren't reading any implied authority to detain the gun owner into statute.

hoffmang
07-18-2008, 7:32 PM
Sounds like Sacramento PD is OK with checking AFS in these kinds of firearms inspections. I'm not sure there's a 4th amendment issue with running the serial number without detaining the gun owner. Even assuming there's an issue with running the serial number while detaining the gun owner, it seems like one of those technical things where the remedy isn't worth the effort.

Another question, is the gun owner really being "detained" when the cop is examining the firearm under 12031(e)? The published cases don't even want to call the examination a "search" and they aren't reading any implied authority to detain the gun owner into statute.

One point of clarification is that I don't agree with the poster above that this is a violation of the 4th, but it is significant under the 4th.

The person is seized and detained - just like he would be for investigation of a speeding infraction. As long as he isn't detained longer than necessary to run the AFS check on the handgun, the seizure is reasonable. The search may be facially unreasonable but that's a question for the Penal Code - not the officer. He would certainly have qualified immunity when following the PC authorization to check the firearm for whether it is loaded.

-Gene

FABIO GETS GOOSED!!!
07-18-2008, 7:40 PM
One point of clarification is that I don't agree with the poster above that this is a violation of the 4th, but it is significant under the 4th.

The person is seized and detained - just like he would be for investigation of a speeding infraction. As long as he isn't detained longer than necessary to run the AFS check on the handgun, the seizure is reasonable. The search may be facially unreasonable but that's a question for the Penal Code - not the officer. He would certainly have qualified immunity when following the PC authorization to check the firearm for whether it is loaded.

-Gene

I think that's a reasonable assessment.

hoffmang
07-18-2008, 8:06 PM
Running the AFS is an interesting side note. The search is authorized by the PC, but the PC doesn't say you get to run the firearm. The AFS run cuts both ways. On the reasonable side, its not unlike running your license plate or number. On the unreasonable side, there is no requirement that a handgun be in AFS. It's only a "wobbler" de-enhancement.

-Gene

RomanDad
07-18-2008, 8:43 PM
+1

Do you also need 10K PLUS just to rally/picket outside to exercise your FREEDOM OF SPEECH?

You don't now.... Because over the last 90 years, people with names like Schenck, Eichman, & Cohen paid your dues already. They fought the laws at no small expense to themselves, and what we have from their sacrifice is the 50 or so Supreme Court cases that clarify what the First Amendment means in modern day America. If you want to fight for a cause, this ones in its infancy.... But know what you're getting into before you start.

Decoligny
07-18-2008, 8:58 PM
Sounds like Sacramento PD is OK with checking AFS in these kinds of firearms inspections. I'm not sure there's a 4th amendment issue with running the serial number without detaining the gun owner. Even assuming there's an issue with running the serial number while detaining the gun owner, it seems like one of those technical things where the remedy isn't worth the effort.

Another question, is the gun owner really being "detained" when the cop is examining the firearm under 12031(e)? The published cases don't even want to call the examination a "search" and they aren't reading any implied authority to detain the gun owner into statute.

If during the 12031(e) check, the LEO sees the serial number and can remember it, he would not be violating any rules by running the numbers. Just like he wouldn't be violating any rules if he pulled over a speeder and saw a bag of pot on the passenger seat. It was in plain view.

This situation wouldn't fly on my gun because the serial number is on the frame under the barrel. It is nowhere near where the officer would normally need to look to ensure that the gun is unloaded. He would have to turn the gun over to get a clear look at the serial number.

The situation that I was envisioning that I think would be a 4A violation was if the officer took the gun, checked to ensure that it was unloaded, finds that it is, then takes it to his vehicle to run the numbers. In that case, he has illegally siezed the gun and violated my rights.

Theseus
07-18-2008, 9:25 PM
This too is what I was thinking. He has the right to check as mentioned in 12031(e). If requested for that purpose I will submit no problems. I am required to by law. However, he does not need to go to his car to check to see if it is loaded. If he does take the gun away to do anything other than check I will call him on it. The way I see it, if they will lie to meet their goals, why can't I try and use the 4th on him to prevent him checking?

But we are also only looking in the context of the PC in relation to OC. If we look, we will likely find other PC that outlines that when they encounter a weapon in public that they have to verify that I am not a prohibited person, or that the weapon is not prohibited.

If during the 12031(e) check, the LEO sees the serial number and can remember it, he would not be violating any rules by running the numbers. Just like he wouldn't be violating any rules if he pulled over a speeder and saw a bag of pot on the passenger seat. It was in plain view.

This situation wouldn't fly on my gun because the serial number is on the frame under the barrel. It is nowhere near where the officer would normally need to look to ensure that the gun is unloaded. He would have to turn the gun over to get a clear look at the serial number.

The situation that I was envisioning that I think would be a 4A violation was if the officer took the gun, checked to ensure that it was unloaded, finds that it is, then takes it to his vehicle to run the numbers. In that case, he has illegally siezed the gun and violated my rights.

Decoligny
07-18-2008, 9:39 PM
This too is what I was thinking. He has the right to check as mentioned in 12031(e). If requested for that purpose I will submit no problems. I am required to by law. However, he does not need to go to his car to check to see if it is loaded. If he does take the gun away to do anything other than check I will call him on it. The way I see it, if they will lie to meet their goals, why can't I try and use the 4th on him to prevent him checking?

But we are also only looking in the context of the PC in relation to OC. If we look, we will likely find other PC that outlines that when they encounter a weapon in public that they have to verify that I am not a prohibited person, or that the weapon is not prohibited.

I highly doubt that. I have spent many hours searching over the Penal Codes for every place where the words "Gun" "Firearm" "Pistol" "Weapon" and every other permutation thereof that you can think up. Nothing in the PC allows them to go any further than checking the mag well and chamber (semi-auto) or opening a wheel-gun, without probable cause.

hoffmang
07-18-2008, 9:41 PM
I highly doubt that. I have spent many hours searching over the Penal Codes for every place where the words "Gun" "Firearm" "Pistol" "Weapon" and every other permutation thereof that you can think up. Nothing in the PC allows them to go any further than checking the mag well and chamber (semi-auto) or opening a wheel-gun, without probable cause.

The case law on this has allowed a "loaded check" to find drugs and have those drugs be admissible without probable cause. The threshold for running your serial number is much lower than a drug search.

-Gene

oaklander
07-18-2008, 11:07 PM
http://photo.gangus.com/d/26788-2/ackbar.jpg

REWARD
Up to
$1,000
For information leading to the arrest or
complaint/indictment of anyone who possesses an illegal
firearm or is carrying, selling, or using firearms illegally
IF YOU HAVE ANY INFORMATION
CALL
1-800-ATF-GUNS
Help us reduce violent gun crime!
Bureau of Alcohol, Tobacco, Firearms and Explosives
Sacramento County Sheriffís Department
Sacramento Police Department

http://www.atf.gov/press/2007press/field/020507sf_sacramentoreward_poster.pdf

:D

Solidsnake87
07-19-2008, 12:35 PM
This is awesome news! Feinstein is probably shi&%ing a brick. I hope that I will be able to see the day when her world crumbled around her.

ViPER395
07-19-2008, 12:38 PM
I hope Fienstein is.... [looks around for M. Sage]

nevermind :43: :ninja: :43:

This is awesome news! Feinstein is probably shi&%ing a brick. I hope that I will be able to see the day when her world crumbled around her.

Decoligny
07-19-2008, 1:09 PM
The case law on this has allowed a "loaded check" to find drugs and have those drugs be admissible without probable cause. The threshold for running your serial number is much lower than a drug search.

-Gene

Was that case law in conjuntion with a pure 12031(e) only detention, or had the suspect been detained under suspiscion of commiting some other crime?

If the suspect was stopped because the LEO reasonable suspected that he was intent of commiting a felony, then the "loaded check" under 12031(e) could concievably include searching the suspects pockets. The same could be said if the suspect was detained on the capitol grounds. This is due to the different definitions of "loaded".

I doubt that the case law was dealing with a suspect who was just walking down the street with an unloaded gun in a holster and full magazines in mag holder and a joint in his pants pocket.

supersonic
07-19-2008, 3:37 PM
Bill-
PM Sent. You wouldn't believe where I have my *small* *inconspicuous* cameras / audio devices hidden. And they are undetectable!!!!!!!! (not cheap, though- had an ex-"intelligence" (that's probably more than I should say!!!!) *friend* select/install the systems.:)
Scott

supersonic
07-19-2008, 3:43 PM
Yep, just confirmed with a friend who works the South Sac beat. :jump:

tacticalcity
07-19-2008, 4:07 PM
This sucks in every possible way. It sucks that the police do not know the letter of the law, and it sucks that somebody out there might intentionally be trying to screw over some young cop who doesn't know any better by turning him into a test case. Talk about entrapment in reverse!

Cops are people. Like you and me. Like you and me some of them are jerks (as I am sure somebody is going to prove by chastising me harshly for voicing this opinion) but most of them are nice people stuck between a rock and a hard place. They have a really tough job...especially here in California where most of our laws defy common sense. 99.9% of them are doing the best they can...and are very good, fair-minded people. Especially that nice CHP Officer in Sacramento who let me off with a warning last month...thank you!!!

I understand this organization is trying to prove a very important point. I understand it could lead to an important change in legislation. I agree with the objective, just not their method of accomplishing it. This is just wrong!

762cavalier
07-19-2008, 4:16 PM
UMMM They aren't out looking to bust some young rookie and take them and the city to the cleaners. That is what the Police memo said. Open carriers are just trying to educate the public and police officers.;)

Ken H
07-19-2008, 4:43 PM
I applaud the writer of that memo, it's an internal heads up to get smart and don't be stupid..

Wish more departments did just that, less problems and this, OC would be common practice and we could go onto other issues.

It was smart to quote case law as the memo did explaining what constitutes loaded..

Hope everyone in the PD read that memo, if anything to the contrary happens, it will be bad for them...

Good job Mr. Wiese getting your hands on that. I bet the politicians will crap when they hear about this...LOL!!!!!!

Let's be thankful the COP got smart and had the vision to do the right thing, lets not play games at this point. I bet if this information gets out to certain politicians they'll be calling the Chief real soon screaming at him....LOL!!!!

Decoligny
07-19-2008, 5:39 PM
This sucks in every possible way. It sucks that the police do not know the letter of the law, and it sucks that somebody out there might intentionally be trying to screw over some young cop who doesn't know any better by turning him into a test case. Talk about entrapment in reverse!

Cops are people. Like you and me. Like you and me some of them are jerks (as I am sure somebody is going to prove by chastising me harshly for voicing this opinion) but most of them are nice people stuck between a rock and a hard place. They have a really tough job...especially here in California where most of our laws defy common sense. 99.9% of them are doing the best they can...and are very good, fair-minded people. Especially that nice CHP Officer in Sacramento who let me off with a warning last month...thank you!!!

I understand this organization is trying to prove a very important point. I understand it could lead to an important change in legislation. I agree with the objective, just not their method of accomplishing it. This is just wrong!

No, your believing everything you read is wrong!

While this memo does address a much needed education issue for the LEOs, it represents something that may have been misinterpreted by the LEO who either authored it, or the LEO who passed his concerns on to the author of the memo.

"They have indicated someone will call the police and report a subject is wearing a firearm."

This is most likely a misinterpretation of a post where somebody may have said something like "it is pretty likely that someone might report a man with a gun" indicating that some passerby, (NOT ONE OF THE OPEN CARRY PEOPLE), might get upset by people with guns showing and call the police.

"When police arrive someone from the group will be secretly videotaping the police contact with the armed subject."

I don't know about secretly, but one would be stupid to not be prepared, just in case, for an uneducated LEO to violate someone's rights. Without documentation, police abuse becomes a matter of he said, she said.

"It seems the group's goal is to have an officer arrest the person for 12025 or seize their firearm and then use the video in a civil law suit against the police officer."

This is where they are totally off the mark. Our OBJECTIVE is to exercise our right to carry without being hassled or abused.

A sucessful open carry dinner, would include a bunch of open carry folks getting together and eating, discussing guns and current events, sports, movies, or whatever, and then going home. It might even include a visit by the police if someone called in "these people have guns". A successful dinner in that case would be the cops showing up, asking a few questions, and at the MOST, checking to ensure that we are 12031(e) compliant.

A civil suit would only be an unfortunate side effect of blatant abuse by LEO, not because of any "setup" by Open Carry folks.

The whole reason they misinterpret what was actually posted is due to the "us vs. them" mentality and the fact that the LEOs haven't been able to look at Open Carry folks as anything other than the enemy.

ViPER395
07-20-2008, 4:12 AM
Awesome breakdown, and +10000 on every point.

No, your believing everything you read is wrong!

While this memo does address a much needed education issue for the LEOs, it represents something that may have been misinterpreted by the LEO who either authored it, or the LEO who passed his concerns on to the author of the memo.

"They have indicated someone will call the police and report a subject is wearing a firearm."

This is most likely a misinterpretation of a post where somebody may have said something like "it is pretty likely that someone might report a man with a gun" indicating that some passerby, (NOT ONE OF THE OPEN CARRY PEOPLE), might get upset by people with guns showing and call the police.

"When police arrive someone from the group will be secretly videotaping the police contact with the armed subject."

I don't know about secretly, but one would be stupid to not be prepared, just in case, for an uneducated LEO to violate someone's rights. Without documentation, police abuse becomes a matter of he said, she said.

"It seems the group's goal is to have an officer arrest the person for 12025 or seize their firearm and then use the video in a civil law suit against the police officer."

This is where they are totally off the mark. Our OBJECTIVE is to exercise our right to carry without being hassled or abused.

A sucessful open carry dinner, would include a bunch of open carry folks getting together and eating, discussing guns and current events, sports, movies, or whatever, and then going home. It might even include a visit by the police if someone called in "these people have guns". A successful dinner in that case would be the cops showing up, asking a few questions, and at the MOST, checking to ensure that we are 12031(e) compliant.

A civil suit would only be an unfortunate side effect of blatant abuse by LEO, not because of any "setup" by Open Carry folks.

The whole reason they misinterpret what was actually posted is due to the "us vs. them" mentality and the fact that the LEOs haven't been able to look at Open Carry folks as anything other than the enemy.

FreedomIsNotFree
07-22-2008, 12:09 AM
(F) Where the person is not listed with the Department of Justice
pursuant to Section 11106, as the registered owner of the pistol,
revolver, or other firearm capable of being concealed upon the
person, by imprisonment in the state prison, or by imprisonment in a
county jail not to exceed one year, or by a fine not to exceed one
thousand dollars ($1,000), or both that fine and imprisonment.

Straight from the penal code, make sure the OC gun is yours or else, see above. A word to the wise, dont borrow your buddy's gun for the purpose of OC. Section 12031 Penal Code

No, the law states that if you are ILLEGALLY carrying a firearm, THEN the issue of registration comes into play. If carrying/transporting a handgun legally, then this would not apply.

FreedomIsNotFree
07-22-2008, 12:10 AM
If people want to get their hands on this memo/email, why dont they just file a request?

bwiese
07-22-2008, 12:18 AM
If people want to get their hands
on this memo/email, why dont they just file a request?

PDs are not that good about PRAR requests - dilly, dally, stall, shred.
News agencies frequently have to sue PDs to even get minute information.
Officers serving as Public Information Officers are customarily of the mindset to NOT disclose even when legally required to.

I'll bet you if you PRARd Sacto PD with a request for open carry memoranda" issues or even "any gun related dept-wide memo for the last 3 weeks" they might well come up empty.

CitaDeL
07-22-2008, 4:47 AM
PDs are not that good about PRAR requests - dilly, dally, stall, shred.
News agencies frequently have to sue PDs to even get minute information.
Officers serving as Public Information Officers are customarily of the mindset to NOT disclose even when legally required to.

I'll bet you if you PRARd Sacto PD with a request for open carry memoranda" issues or even "any gun related dept-wide memo for the last 3 weeks" they might well come up empty.

Or bury you with a paper avalanche of nonrelevant memoranda.

GuyW
07-22-2008, 10:37 AM
PDs are not that good about PRAR requests - dilly, dally, stall, shred.
News agencies frequently have to sue PDs to even get minute information.
Officers serving as Public Information Officers are customarily of the mindset to NOT disclose even when legally required to.

I'll bet you if you PRARd Sacto PD with a request for open carry memoranda" issues or even "any gun related dept-wide memo for the last 3 weeks" they might well come up empty.

It'd make a good story for a local paper or TV station ("SactoPD Lies Like Dogs"), non-productive PRAR vs an existing document....

Glock22Fan
07-22-2008, 10:40 AM
("SactoPD Lies Like Dogs"),

On behalf of my dogs, I protest.

805tyson
07-24-2008, 9:34 PM
Open carry is happening in San Francisco. Infact its in all of CA. here is a link to see the OC law for California.

http://www.californiaopencarry.org/faq.html

CA_Libertarian
07-25-2008, 6:05 AM
Cops are people. Like you and me. Like you and me some of them are jerks (as I am sure somebody is going to prove by chastising me harshly for voicing this opinion) but most of them are nice people stuck between a rock and a hard place. They have a really tough job...especially here in California where most of our laws defy common sense. 99.9% of them are doing the best they can...and are very good, fair-minded people.

My experiences require me to disagree with your "99.9%." 100% of the 5 officers involved in my recent 'detention' had no problem violating my rights, damaging my property, causing me physical injury, and then falsifying the report to cover it up.

ViPER395
07-25-2008, 12:01 PM
But someone will argue that those five officers are the exception to every other decent LEO.

I will submit that although three of the five might have believed you were being treated unfairly, they wouldn't dare go against their own to take a stand in the suspects corner.

Then someone will respond that 99.9% of the suspects are scum and usually guilty.

My response would be "I don't care". Then point out the fact that if 99.9% of the officers are good, yet that statistic was refuted in CA_L's case.

So if someone who spouts the "99.9% of cops are wonderful stand-up people" and then gives the "99.9% of suspects are scumbags" line, don't they cancel each other out?

Are we to believe that CA_L is that .1% and the cops who ****ed with him are the other .1% :rolleyes:

My experiences require me to disagree with your "99.9%." 100% of the 5 officers involved in my recent 'detention' had no problem violating my rights, damaging my property, causing me physical injury, and then falsifying the report to cover it up.

hoffmang
07-25-2008, 2:23 PM
Anyone find cop bashing ironic in a thread about a department doing the right thing and educating its officers?

Just asking... :rolleyes:

-Gene

ViPER395
07-25-2008, 3:11 PM
I was just responding to the above posts.

I think the SPD did a great job.

Shane916
07-25-2008, 3:16 PM
Anyone find cop bashing ironic in a thread about a department doing the right thing and educating its officers?

Just asking... :rolleyes:

-Gene

Ironic yes, unfortunately not to surprising coming from CalGuns.

One could start a thread about unicorns and somehow it would end up with cop bashing. ;)

pizzatorte
07-25-2008, 3:18 PM
But someone will argue that those five officers are the exception to every other decent LEO.

I will submit that although three of the five might have believed you were being treated unfairly, they wouldn't dare go against their own to take a stand in the suspects corner.

Then someone will respond that 99.9% of the suspects are scum and usually guilty.

My response would be "I don't care". Then point out the fact that if 99.9% of the officers are good, yet that statistic was refuted in CA_L's case.

So if someone who spouts the "99.9% of cops are wonderful stand-up people" and then gives the "99.9% of suspects are scumbags" line, don't they cancel each other out?

Are we to believe that CA_L is that .1% and the cops who ****ed with him are the other .1% :rolleyes:

Apparently all 0.1% were in this one department, sitting around and laughing happily after shooting an unarmed woman in the face with a rubber bullet.

http://www.youtube.com/watch?v=G63FEamhpA0&fmt=18

eta34
07-25-2008, 3:27 PM
Nice first post. :rolleyes:

ViPER395
07-25-2008, 3:32 PM
If they'd stop hassling the unicorns out shooting their OLLs at the range :) :cool2:

One could start a thread about unicorns and somehow it would end up with cop bashing. ;)

Liberty1
07-25-2008, 3:47 PM
Nice first post. :rolleyes:

This is OT as are the above posts but the video does need to be viewed and discussed. And those of us in LE need to examine that particular shooting case (IMO an arrest could have been effected easily and peacefully if she was in violation of a lawful dispersal order) and reject the debriefing "reactions" of our bros. I suggest another thread (which I suspect is bound to get locked:D)

Liberty1
07-25-2008, 3:50 PM
Anyone find cop bashing ironic in a thread about a department doing the right thing and educating its officers?

Just asking... :rolleyes:

-Gene

It's a great memo generally! There are a few things I'd like to address but won't as I don't wish to detract from winning the hearts and minds of the memo's creators:)

Still, I'd love to get an official copy on letterhead to prove it's authenticity and make it's acceptence by other depts. more likely.

GM4spd
07-25-2008, 5:12 PM
YOU SHOULD NOT OPEN CARRY!!!

Don't even try it unless you have 10 grand minimum (and that's if you're lucky and get it tossed pretrial.)

Look guys, this is not a great idea to begin with en-masse post heller pre-incorporation!!! It will not play well and may cost gun rights advocates a ton more money.

Secondly, the NRA and CGF and the like cannot afford to bail all of you out if you get in over your heads here.

If you OC, be prepared to deal with the consequences.

That said, this is a *great* letter! Carrying it with you should you decide you've got 10-50k burning a hole in your pocket and have a bad attitude (like I did with the OLLs :) is a good precaution.

Finally, a voice of reason, good advice, things like OC en-masse are going
to only turn an unenlightened public into furthur demonizing guns and their
owners. This is not good thing. Pete

PonchoTA
07-27-2008, 11:11 AM
I finally got to read all 16 pages (!) of this thread, and although I think my question is answered, I'd like to clarify if I may:

I could openly carry my registered pistol on my belt with a couple of full magazines in my pocket (since I don't have any pouches) and it would be legal? I am only asking because somewhere along the line, I got the impression that you could openly carry, but couldn't carry magazines that had any rounds in it because that would be illegal (why, I don't recall)
My main thought after seeing that was "What's the point then?", but the interpretation I think I'm doing after reading all through this is much better!
:D

Am I correct? I won't be pushing the issue because I don't have the $$ to fight anything, but I will be cheering for those who can!

Thanks guys!
Paul

hoffmang
07-27-2008, 5:16 PM
I could openly carry my registered pistol on my belt with a couple of full magazines in my pocket (since I don't have any pouches) and it would be legal?

Almost but no. The magazines also have to be openly carried on your belt. Magazines in your pocket can make the firearm concealed per People v. Hale.

-Gene

Librarian
07-27-2008, 5:22 PM
I could openly carry my registered pistol on my belt with a couple of full magazines in my pocket (since I don't have any pouches) and it would be legal?

In the very narrowest hyper legal sense, YES. And in California, knowing the details is critical to doing most things with guns.

Open carry in a holster on the belt is not 'concealed', so you would not be carrying a concealed weapon.

With no rounds in the chamber or in a magazine in the magazine well, the gun would not be loaded, either.

Those two statements are the main content of the Sacramento PD memo that started this thread.

I am only asking because somewhere along the line, I got the impression that you could openly carry, but couldn't carry magazines that had any rounds in it because that would be illegal (why, I don't recall)

Again, there is some concern that a concealed magazine might be considered concealing the GUN - loaded is not really relevant. (Why that would work when there is an explicit call-out in PC that in a holster on a belt is NOT concealed, I cannot imagine, but I'm not a lawyer, so maybe my imagination isn't properly tuned.)

My main thought after seeing that was "What's the point then?", but the interpretation I think I'm doing after reading all through this is much better!
:D

Am I correct? I won't be pushing the issue because I don't have the $$ to fight anything, but I will be cheering for those who can!

Thanks guys!
Paul

A lot of the discussion here has been 'is it a GOOD DEA to open carry?' Since the SPD memo is not the common understanding of the law in California (YET!), there is some reasonable expectation that someone open carrying might have to defend against an arrest; even if one should win on the law, it would be an expensive endeavor.

Piper
07-27-2008, 8:03 PM
I think for grins and giggles people should carry full mags concealed with an empty holster. And when the cops make a big deal out it and demand to know where the gun is, just reply "it's where you can't get it." But I feel like being an Adam Henry right now, so just ignore me. :43:

Fate
07-27-2008, 8:47 PM
I think for grins and giggles people should carry full mags concealed with an empty holster. And when the cops make a big deal out it and demand to know where the gun is, just reply "it's where you can't get it." But I feel like being an Adam Henry right now, so just ignore me. :43:

Sounds like a good way to get your cavity checked! :eek: :D

sac550
07-27-2008, 8:54 PM
Having a loaded magazine concealed in your pocket and an unloaded pistol in a belt holster is not a crime. People v. Hale, 43 Cal. App. 3d 353 doesn't say otherwise. Hale was not even convicted of 12025. He was convicted of possession of cocaine. The only issue on appeal was if an officer could search a vehicle for addititional weapons once officers discovered a pistol. During the search of the vehicle officers found the cocaine. The court of appeal said it was reasonable for an officer to search the vehicle since he found an unloaded pistol. However, even if the gun was loaded or the magazine was in plain view an officer could still search the passenger compartment for their safety. NOT ILLEGAL TO HAVE A CONCEALED AND LOADED MAGAZINE.

hoffmang
07-27-2008, 9:27 PM
Having a loaded magazine concealed in your pocket and an unloaded pistol in a belt holster is not a crime. People v. Hale, 43 Cal. App. 3d 353 doesn't say otherwise. Hale was not even convicted of 12025. He was convicted of possession of cocaine. The only issue on appeal was if an officer could search a vehicle for addititional weapons once officers discovered a pistol. During the search of the vehicle officers found the cocaine. The court of appeal said it was reasonable for an officer to search the vehicle since he found an unloaded pistol. However, even if the gun was loaded or the magazine was in plain view an officer could still search the passenger compartment for their safety. NOT ILLEGAL TO HAVE A CONCEALED AND LOADED MAGAZINE.

This is far messier than your post makes it out to be.

Let me say what we probably agree upon. In any case except when a handgun is carried openly, there are only exceedingly rare edge cases where a loaded magazine not in the magazine well of a firearm is considered a loaded firearm. If your handgun is in the trunk and there are loaded magazines in the same trunk, the handgun is not loaded. If you place loaded magazines inside a locked container that holds your handgun with no round in the chamber nor a loaded magazine in the magazine well, the handgun is unloaded. This is all People v. Clark.

I will agree with you that People v. Hale (http://login.findlaw.com/scripts/callaw?dest=ca/calapp3d/43/353.html)(free registration required) is not nearly the quality of precedent that People v. Clark is. The facts in that case are as you say - the drug bust was upheld based on the search being valid in that there was probable cause to search based on a violation of PC 12025. However, the appellate court goes a bit further and says:

[1a] On the facts of the case we conclude that Officer Price had reasonable cause to search the front seat of Hale's automobile and that consequently his discovery of contraband was an incident of a lawful search. [43 Cal.App.3d 356] The facts known to the officer at the time of the search gave him reasonable cause to suspect Hale was committing a crime, viz. unlicensed carrying of a firearm concealed in a vehicle (Pen. Code, ß 12025 fn. 2). Only partial concealment of a firearm is required. (People v. Koehn, 25 Cal.App.3d 799, 802 [102 Cal.Rptr. 102]; People v. Tarkington, 273 Cal.App.2d 466, 469 [78 Cal.Rptr. 149]; People v. Linden, 185 Cal.App.2d 752, 757 [8 Cal.Rptr. 640].) 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 Green v. State (Okla.Crim.) 489 P.2d 768.) A firearm disassembled into two or more parts, can nevertheless constitute an operable weapon within the meaning of the Dangerous Weapons Control Law. (People v. Ekberg, 94 Cal.App.2d 613, 616-617 [211 P.2d 316]; see also, State v. Ware (Fla.App.) 253 So.2d 145.)

"The carrying of concealed firearms is prohibited as a means of preventing physical harm to persons other than the offender." (People v. Jurado, 25 Cal.App.3d 1027, 1032 [102 Cal.Rptr. 498].) [2] In our opinion 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, presents a threat to public order comparable to concealment of the entire firearm and falls within the prohibition of section 12025. [1b] In the light of the bizarre arsenal of weaponry Hale had installed around the driver's seat of his automobile, Officer Price had reasonable cause to suspect that a clip and ammunition for the automatic pistol might be hidden close at hand and to make a search for them.

Now I don't know about you, but ignoring constitutional issues and a colorable argument that People v. Ekberg doesn't mean what this panel claims it means and that this is not an essential holding of the case - I still don't want to stake a misdemeanor 12025 conviction on being able to dissuade an inferior court to ignore the binding precedent in bold above...

-Gene

Librarian
07-27-2008, 10:03 PM
Now I don't know about you, but ignoring constitutional issues and a colorable argument that People v. Ekberg doesn't mean what this panel claims it means and that this is not an essential holding of the case - I still don't want to stake a misdemeanor 12025 conviction on being able to dissuade an inferior court to ignore the binding precedent in bold above...

-Gene
I wonder how it would be received to bring in, say, my 10 G21 magazines, set them carefully on a table, then ask which one was the "essential component" of the Glock, and how does one make that determination? Point attempted here is that magazines are not an "essential component", and the Hale court erred to suggest it was.

But it would, probably, require the arrest and charge.

hoffmang
07-27-2008, 10:28 PM
I wonder how it would be received to bring in, say, my 10 G21 magazines, set them carefully on a table, then ask which one was the "essential component" of the Glock, and how does one make that determination? Point attempted here is that magazines are not an "essential component", and the Hale court erred to suggest it was.

But it would, probably, require the arrest and charge.

Correct. Don't get me wrong - I think Hale is wrongly reasoned as to the firearm and that may also mean it's wrongly decided as to the search as well. That said it should have been about the scope of Terry which is something even the 9th was just having to deal with in United States v. Caseres decided last week.

-Gene

bwiese
07-27-2008, 10:31 PM
I think issues of UOC w/separate loaded mags (external or hidden) may well be minimized if an empty mag were in the gun. That way the gun is "complete".

sac550
07-27-2008, 10:43 PM
Gene, I would agree it is always better to error on the side of caution. I would not want to tempt a DA. However, I don't think a DA could base a 12025 case on the HALE decision. First the 12025 issue we are talking about was not the source of the appeal. The Judges opinion on what may or may not be concealed is just dicta and not binding under stari decisis. I read the EKBERG case and it doesn't shine any light on our debate. That case only stated that a disassembled firearm was still prohibited by a person within the class of 12021.

The Judges in the HALE case never said that having a concealed and loaded magazine was a 12025 violation. Also a search of lexis nexis for 12025 cases going back 36 years doesn't turn up one case that cites HALE or comes to the same conclusion.

I pulled up that calcrim jury instructions for 12025 (calcrim 2520). Nothing in the jury instruction says a loaded concealed magazine is a violation of 12025. The jury instruction points to PC 12001 for the definition of firearm. No where in 12001 will you find a loaded magazine defined as a firearm. The jury instructions cite numerous points of authority for the trial Judge and the DA, some going back to 1960. Not once is the HALL case mentioned. That is a clear sign that those who wrote the jury instructions (judges, and other attorneys) didn't think it was an important case as related to 12025 law. For those that don't know calcrim instructions are what is read to the jury, giving them the elements of the crime and what must be proved by the DA. They are a great source of information and help cut through the BS rumors that we all hear about.

While I am guessing we will have to agree to disagree, one thing we can agree on is that the law is always changing and one must stay on top of it or you will find yourself bitten in the *** by it.

hoffmang
07-27-2008, 10:56 PM
We don't disagree here really, but we do disagree depending on who is listening.

I can personally weigh my risks of having my counsel make the dicta argument to say that Hale doesn't control. I however do not want anyone not in my shoes and without $50K to spend proving that point by going up against the dicta in bold above.

Your first post saying that Hale doesn't say otherwise is both specifically wrong and somewhat dangerous for the uninformed.

-Gene