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Theseus
11-06-2008, 4:29 PM
OpenCarry Thread & Post (http://opencarry.mywowbb.com/view_topic.php?id=13614&forum_id=12&jump_to=300889#p300889)

For your reading pleasure.

I have not posted on here for some time, only because I have been busy.

I have been back in country and UOC'ing since Oct 20th. I have not been providing a daily report, and I am sorry for that, but it didn't seem enough people cared for me to continue doing so.

Well, today is the first time I have been approached by police. I will leave out VERY specific details, but I will say that I have believed for some time that Alhambra PD was a well trained and educated PD and with the professionalism and respect they treated me with while questioning me about my OC that belief is affirmed.

So the basics. Around 2:30 PM today 11/6/08 I went to my local laundrymat OC as I do frequently. After loading my laundry I went to a small donut shop and bought a drink and returned to the laundrymat for a cigarette and to drink.

I was discussing with a patron there that what I was doing was legal and exmplaining some of the in's/outs of carrying like I do when I noticed a police car drive up to the parking lot, but not enter. I suspected there were there for me so I put out my cigarette and put my drink down and then put my hands on my head and stood up.

I announced that I was carrying a handgun and that it was not loaded. One officer asked me to walk towards him, which I did. He then repeated several times "Don't move".

I assured him I had no intention to make any moves unless requested by them. They removed my sidearm and my magazines and began to question me. The questions were pretty basic and obviously to determine if I was a prohibited person.

Was I in a gang, was I on any medication and should I be. One of the youner officers had an obvious problem with my carrying, but he was quietly pulled away by a higher ranking and told to stand by away from me and not to bother me.

The questioning was continued by another officer with a more respectful tone.

The higher ranked officer admitted quickly that he understood that what I was doing was legal but that he had to pay his proper due diligence since there was a call. I responded by letting him know I understand and that when I made the decision to OC that I took this possability into account and that he was just doing his job.

They ran the serial and I guess because I transfered the gun less than 2 weeks ago the database was not returning me as the registered owner. While they continued to run the gun the higher rank continued to talk to me...mostly about other things like why I was using target rounds instead of defensive, which I responded that I had just accuired the gun and have not had a chance to properly test the defensive founds available, but felt that even .40SW target rounds would be effective enough in the mean time.

Well, it took a while for them to get it processed, but after about 20-30 minutes they gave me my gun back and told me to have a nice day.

I thanked him for their professionalism and respect and went in to continue doing my laundry.

HE EVEN ASKED ME A LEGAL QUESTION!! He lead up to it by saying "We had a question, and you might be able to answer it." and then he asked about having the ammo in the car.

I told him he should refer to the local DA with any questions as I was not a lawyer, but that I would do my best to exlpain based on understanding of the law.

I told him that "for the most part there is no special requirement to have ammo locked anywhere but that concealment of a magazine IS concealment of a weapon and that when in a school zone I am required to lock the handgun in a fully enclosed case, but that the law doesn't really say anything about ammo in a school zone."

thempopresense
11-06-2008, 4:50 PM
seems the word is getting around the PD's about open carry!

CitaDeL
11-06-2008, 7:03 PM
Yes, the police seem to get it. Interesting to note the veteran pulling the junior officer aside.

You have any plans on doing a PRA on the 911 call? Any follow up planned for the officers who contacted you? Letter of thanks for the department?

Doheny
11-06-2008, 7:11 PM
20-30 minutes seems like a long time to be detained for a lawful act.

nobody_special
11-06-2008, 8:00 PM
Yep, plus the illegal search... (or did you give consent?)

Theseus
11-06-2008, 8:05 PM
I did not consent to the search, but they are allowed to inspect the weapon to determine if it is or is not loaded.

As for a letter, I will be sending a nice letter to the PD commending the officers and advising them that the search was not legal and to take it under advisement.

tyrist
11-06-2008, 8:06 PM
I have said it before but I will say it again...unloaded open carry is one of the subjects covered in the Post Academy Learning Domains.

While some Officers might have forgotten about it I can clearly remember it. We even talked about how a magazine resting in the magwell but not connected was still considered loaded.

Shotgun Man
11-06-2008, 8:34 PM
Good post, OP, but I cringed when I read the last part where you told the cops that concealment of a mag constitutes concealment of a weapon.

Here's what you said:

I told him that "for the most part there is no special requirement to have ammo locked anywhere but that concealment of a magazine IS concealment of a weapon and that when in a school zone I am required to lock the handgun in a fully enclosed case, but that the law doesn't really say anything about ammo in a school zone."

The law is far from certain in this area. Any good defense lawyer would argue that People v. Hale does not so hold and any comments in that regard are dicta.

Cops, DAs and judges don't even know about Hale. Concealing mags is likely a non-issue to them. There's no useful purpose in telling a cop that he can arrest someone for concealing a mag.

To anyone unfamiliar, here is a prior thread about Hale and concealing mags with a nearby handgun: http://www.calguns.net/calgunforum/showthread.php?p=1092453&highlight=dicta#post1092453

Glock30
11-06-2008, 8:37 PM
Very nice! This is really making me want to attempt it.

leelaw
11-06-2008, 8:40 PM
I told him that "for the most part there is no special requirement to have ammo locked anywhere but that concealment of a magazine IS concealment of a weapon and that when in a school zone I am required to lock the handgun in a fully enclosed case, but that the law doesn't really say anything about ammo in a school zone."

Uh, what? :icon_bs:

Seesm
11-07-2008, 1:04 AM
Then why carry then if you can't be loaded?

What is the reason to carry a gun of your ammo is locked in the car?

I do not know alot of the laws as I am learning so I will ask a few dumb questions for sure...

Thanks

leelaw
11-07-2008, 1:18 AM
Then why carry then if you can't be loaded?

What is the reason to carry a gun of your ammo is locked in the car?

I do not know alot of the laws as I am learning so I will ask a few dumb questions for sure...

Thanks

In California you are legally allowed to carry an unloaded, unconcealed handgun on your person (as long as you may legally possess a handgun).

You may carry a loaded magazine somewhere else on your person, not just keep the magazine locked in the car.

E Pluribus Unum
11-07-2008, 2:00 AM
Uh, what? :icon_bs:

Ummm... not BS... he is correct....



In California you are legally allowed to carry an unloaded, unconcealed handgun on your person (as long as you may legally possess a handgun).

You may carry a loaded magazine somewhere else on your person, not just keep the magazine locked in the car.

That is not true... People v Hale 1974 ruled that a concealed magazine constituted a concealed firearm even if the firearm itself was carried openly.

leelaw
11-07-2008, 2:09 AM
That is not true... People v Hale 1974 ruled that a concealed magazine constituted a concealed firearm even if the firearm itself was carried openly.

I'm basing my response off of case law from 1996, not an outdated version from the 70's.

The term "loaded" has a commonly understood meaning: "to put a load or charge in (a device or piece of equipment) a gun" or "to put a load on or in a carrier, device, or container; esp: to insert the charge or cartridge into the chamber of a firearm." (Webster's New Collegiate Dict. (1976) p. 674.) Under the commonly understood meaning of the term "loaded," a firearm is "loaded" when a shell or cartridge has been placed into a position from which it can be fired; the shotgun is not "loaded" if the shell or cartridge is stored elsewhere and not yet placed in a firing position. The shells here were placed in a separate storage compartment of the shotgun and were not yet "loaded" as the term is commonly understood.

People vs Clark, 1996.

A magazine is not a firearm, thus a loaded magazine is not a loaded firearm, unless used in conjunction with a firearm and in such a position from which the firearm can be fired.

CitaDeL
11-07-2008, 4:23 AM
In California it is not prohibited to carry an unloaded, unconcealed handgun on your person (as long as you may legally possess a handgun).

You may carry a loaded magazine somewhere else on your person, not just keep the magazine locked in the car.

Fixed it for you.


In my opinion, "Clark" and "Hale" deal with different issues and the former does not necessarily take precident over the latter.

JDoe
11-07-2008, 5:15 AM
Thank you for the report Theseus, thank you for your work for the (U)OC cause.

E Pluribus Unum
11-07-2008, 8:24 AM
Fixed it for you.


In my opinion, "Clark" and "Hale" deal with different issues and the former does not necessarily take precident over the latter.

Exactly.

I'm basing my response off of case law from 1996, not an outdated version from the 70's.



People vs Clark, 1996.

A magazine is not a firearm, thus a loaded magazine is not a loaded firearm, unless used in conjunction with a firearm and in such a position from which the firearm can be fired.

People v. Clark deals with LOADED. People v. Hale deals with concealed.

With regards to loaded, the magazine is not part of the weapon. With regards to being concealed, it is.

I know, it makes no sense but that is current case law.

Ironchef
11-07-2008, 8:54 AM
QUick question:
Loaded magazine, in a fully enclosed mag holder on the belt: concealed or not concealed

Do you need to see the actual magazine, or is it ok to be in a nylon magazine pouch (in plain view on the belt opposite the holstered gun)?

tmuller
11-07-2008, 9:04 AM
Yes the magazine is concealed but it is not a firearm. Are you telling me that I can't keep mags or a speed loader in my cargo pockets while at the range or UOCing?

Theseus
11-07-2008, 9:07 AM
QUick question:
Loaded magazine, in a fully enclosed mag holder on the belt: concealed or not concealed

Do you need to see the actual magazine, or is it ok to be in a nylon magazine pouch (in plain view on the belt opposite the holstered gun)?

That is an interesting and important question. There is no REAL indication as most relevant definitions on concealed refer to the gun and not the magazine.

Some believe that the magazine needs to be exposed enough to be readably identifiable as a magazine, and that a pouch with a flap may "conceal" the magazine. I don't believe so, I feel that it can quickly be identified if located in a mag pouch on your belt. . . But i have recently began using the mag pouch that came with my XD40.

And as always happens in these situations people second guess what happened and what was right and what is wrong. I understand and allowed them a little leeway in this as it seemed that they are not used to this kind of thing, as it was mine. I will be writing a letter reminding them of the limitations for search and running the serial. . . But I am not looking to sue anyone or get these mostly honest and hard working guys in trouble.

They handled themselves in what I believe to be an honest and professional manner, even if it was misguided. Now, had they arrested me or cause any extra problems then I might feel different, but I didn't think that there in the street was the time to teach them.

Theseus
11-07-2008, 9:09 AM
Yes the magazine is concealed but it is not a firearm. Are you telling me that I can't keep mags or a speed loader in my cargo pockets while at the range or UOCing?

You can't keep a loaded mag in your cargo pockets while UOC, but at the range you might be able to...I do know that most ranges here don't allow you to keep the gun in a holster unless you are LEO or on their private ranges.

Splinter
11-07-2008, 9:28 AM
If you going to OC I would hope you atleast go to the trouble of keeping the mag/s quickly obtainable in the first place. In your pocket would really defeat the purpose of OC effectiveness.
A couple things im unclear about
First, it is my understanding that while you are on private property, they shouldnt be bothering you as long as you are not "displaying" or being asked by employees not to do such things. At what point can LE enter a store, or other place? I know most businesses do not appreciate their patrons being harassed?
Also, they really had no right to check the serial of the gun as long as no crime was committed with it, correct?

Ironchef
11-07-2008, 9:29 AM
Perhaps asking a cop, who keeps magazines in a basketweave, enclosed holster if that's considered concealed in regards to the Hale definition.

Btw Thesus, well done with the OC, the representation of us all, your obvious bravery, 2A passion, and with the risk you take OCing. I admire and emulate you. Thanks for the story too!

Army
11-07-2008, 9:49 AM
A magazine is an intregal part of a semi-automatic handgun, thus concealing it is considered by vs Hale as partially concealing the gun.

California law does NOT consider a flap holster worn openly as concealed. This should mean a full flap mag pouch is also not considered concealed, since vs Hale and the PC both determined what concealed is.

Speed loaders are NOT integral to the revolver, so are not considered concealed weapons. Full speed loaders may be carried in the pockets as there is no law provision for carrying ammo that is not in a position to be fired (vs Clark)

Ironchef
11-07-2008, 10:11 AM
California law does NOT consider a flap holster worn openly as concealed.


Any chance you have a citation for that, or are you referring to Hale (which I haven't read in some time)?

pullnshoot25
11-07-2008, 10:13 AM
WOO HOOOOOOO!!!!!! FUN TIMES!!!

Glad everything went well, YAY!

pullnshoot25
11-07-2008, 10:14 AM
A magazine is an intregal part of a semi-automatic handgun, thus concealing it is considered by vs Hale as partially concealing the gun.

California law does NOT consider a flap holster worn openly as concealed. This should mean a full flap mag pouch is also not considered concealed, since vs Hale and the PC both determined what concealed is.

Speed loaders are NOT integral to the revolver, so are not considered concealed weapons. Full speed loaders may be carried in the pockets as there is no law provision for carrying ammo that is not in a position to be fired (vs Clark)

AMEN to that!

Theseus
11-07-2008, 10:55 AM
If you going to OC I would hope you atleast go to the trouble of keeping the mag/s quickly obtainable in the first place. In your pocket would really defeat the purpose of OC effectiveness.
A couple things im unclear about
First, it is my understanding that while you are on private property, they shouldnt be bothering you as long as you are not "displaying" or being asked by employees not to do such things. At what point can LE enter a store, or other place? I know most businesses do not appreciate their patrons being harassed?
Also, they really had no right to check the serial of the gun as long as no crime was committed with it, correct?

Well, I patroned a business and bought a drink from them. It is my understanding that after I purchased the drink and left the business the lady called the police on a guy with a gun. My understanding is that since it was private property they can't simply roll up and question me, but if they are called they can.

MudCamper
11-07-2008, 11:45 AM
Then why carry then if you can't be loaded?

What is the reason to carry a gun of your ammo is locked in the car?

I do not know alot of the laws as I am learning so I will ask a few dumb questions for sure...

Thanks

You (and everyone with questions about OC) should read this OC FAQ (http://www.californiaopencarry.org/faq.html).

It answers these questions. Yes you can carry loaded mags with you. No technically you can't conceal them. Yes you can carry the loaded mags in pouches on your hip. And more...

Ballistic043
11-07-2008, 12:19 PM
random point blank scenario:

does unloaded open carry pertain to your registered handgun solely? would it also pertain; if in the situation, lets say someone had a pistol purchased for them from their parents. lets also go so far as to say the gun has not yet been transferred to their name and remains in their parents. or heck, lets just say someone wanted to borrow a parents particular handgun for a weekend at the ranch. would that still be legal?


to me it would seem like a grey area. but then again, if you have expressed permission to posess the firearm, and are not in a prohibited class preventing you from posessing one, then what are the other repercussions that could come into play? using the gun is entirely different as im aware of that, but i want to know about carrying.

Ironchef
11-07-2008, 12:41 PM
I think the "if you can legally own a gun" part covers it. But since they're going to run the gun in their ICS thing (or whatever that database is) to see who the owner is regardless of lawfulness, it puts you at risk for some false detention and more. Bummer the Sacramento UOC memo didn't also detail proper procedure for man with gun calls...it might start toning down the automatic checks they do on everything..

If i'm not mistaken, if in this situation, the OP was checked and the gun was found to be reported stolen or registered to someone not the OP or relative or whatever, what grounds do they have to confiscate the gun and arrest? Meaning, wouldn't such a find be thrown out because of lack of due process? Or is such a finding beyond the illegal search and seizure thing which I know does apply?

The SoCal Gunner
11-07-2008, 2:24 PM
20-30 minutes seems like a long time to be detained for a lawful act.

20-30 minutes would likely be ruled reasonable because the delay was related to the initial stop.

Ironchef
11-07-2008, 2:30 PM
Actually, the only reasonable detention for a 'man with gun' call should be to determine if gun is loaded (12031)...so after prostrating a man, disarming him, possibly cuffing him or sitting him on curb under partner's supervision, clearing a gun takes an entire 30 seconds. In which case it should then be returned and man with gun on his way.

but because they try to find the enhancements (gang, convict, measure distance to school, etc) to give them teeth for a 12025 or 12031 arrest...they take more time..running serials, etc.

pullnshoot25
11-07-2008, 2:56 PM
Actually, the only reasonable detention for a 'man with gun' call should be to determine if gun is loaded (12031)...so after prostrating a man, disarming him, possibly cuffing him or sitting him on curb under partner's supervision, clearing a gun takes an entire 30 seconds. In which case it should then be returned and man with gun on his way.

but because they try to find the enhancements (gang, convict, measure distance to school, etc) to give them teeth for a 12025 or 12031 arrest...they take more time..running serials, etc.

Liberty1 just helped me write a letter to the City Attorney about the very same subject and how what they did was not totally kosher. 20-30 seconds is all it should have taken.

Theseus
11-07-2008, 3:23 PM
Liberty1 just helped me write a letter to the City Attorney about the very same subject and how what they did was not totally kosher. 20-30 seconds is all it should have taken.

Liberty, or pullnshoot....if you could forward the pertinent parts of that letter to me I would appreciate it.

As mentioned before, my intentions are to inform them of their improper procedure, not cause a big lawsuit out of this. If they did get the SAC memo they might be thinking that my intention is such and I wish to make it clear the SAC memo got it wrong...partially.

But that does make me wonder, under what conditions can they check or run the serial? If a MWG call is initiated and according to 12031 (e)? says that they can only check to see if it is loaded, then what PC do they have to run the serial? I am wondering if I should get the reports on this call so that we can perhaps create "training" materials to help other PD's not make the same mistakes.

JDay
11-07-2008, 3:31 PM
Well, I patroned a business and bought a drink from them. It is my understanding that after I purchased the drink and left the business the lady called the police on a guy with a gun. My understanding is that since it was private property they can't simply roll up and question me, but if they are called they can.

A business open to the public is considered a public place as far as I know. You wouldn't have a reasonable expectation of privacy would you?

JDay
11-07-2008, 3:35 PM
random point blank scenario:

does unloaded open carry pertain to your registered handgun solely? would it also pertain; if in the situation, lets say someone had a pistol purchased for them from their parents. lets also go so far as to say the gun has not yet been transferred to their name and remains in their parents. or heck, lets just say someone wanted to borrow a parents particular handgun for a weekend at the ranch. would that still be legal?


to me it would seem like a grey area. but then again, if you have expressed permission to posess the firearm, and are not in a prohibited class preventing you from posessing one, then what are the other repercussions that could come into play? using the gun is entirely different as im aware of that, but i want to know about carrying.

It's 100% legal to borrow a handgun from your parents if you're not restricted from owning a firearm, have it for 30 days or less and its done in-frequently. Now if your parents bought you a handgun and you haven't transfered it within 30 days you and the one who bought it could get into some trouble. You also need a current Handgun Safety Certificate.

Soldier415
11-07-2008, 3:37 PM
but that concealment of a magazine IS concealment of a weapon

Are you referring to OC or to transporting a handgun in a car?


You can have loaded mags in the same case as the ahndgun and it is perfectly legal. Your mags are not a weapon, the bullets are not a weapon, the weapon is a weapon.

Liberty1
11-07-2008, 3:44 PM
I have said it before but I will say it again...unloaded open carry is one of the subjects covered in the Post Academy Learning Domains.

While some Officers might have forgotten about it I can clearly remember it. We even talked about how a magazine resting in the magwell but not connected was still considered loaded.

I even remember one of my POST "dangerous weapons" LD test questions about LOC:

A man with an exposed unloaded revolver in a belt holster goes to a basket ball game at a youth center.

What was the violation...

a)12025 - Concealed firearm
b)12031 - loaded firearm
c)626.9 - firearm in a school zone
d)No Crime

most picked c :(

The question didn't touch on ammunition but People v Clark was mentioned in the class but not on the test. I think I got a 98%. The question I got wrong was that I choose to shoot the guy on a traffic stop in a trench coat to got out of the car, ran at me, and wouldn't take his hands out of his pockets. The correct answer was don't shoot unless you see a weapon. I may still get that one wrong for real but considering the options....hmm....guess I could just lock my patrol car and run away ;)

With the David March (http://www.odmp.org/officer/16258-deputy-sheriff-david-william-march) scenario being taught it's a tough one :( RIP

I actually think that OC off duty might have saved her (http://www.odmp.org/officer/18690-deputy-sheriff-maria-cecilia-rosa) life but it is all speculation sadly.

Liberty1
11-07-2008, 4:25 PM
A business open to the public is considered a public place as far as I know. You wouldn't have a reasonable expectation of privacy would you?

The Penal code doesn't give a definition of a 12031 "public place". In People vs Vega (1971) 18 Cal.App.3d 954,958 the court gave an example of a public place being a "supermarket parking lot". But then again we have the old discussions of Overturf and private property (albeit outside on private commercial (rental) property).

So I'd say, IMO, that the inside of a business is a not a public place since stores can exclude the public from that space (to bad I'm not a CA judge); but notice all the "causes" which can solicit in a supermarket parking lot (a public place in Ca. anyway). In New Hampshire, for example, a private business parking lot is PRIVATE.

Still we don't have clear guidance on this issue yet. Hopefully Nordyke will make the speculation moot soon. :D

A couple of our OCing people have been pulled out of businesses and they have cooperated, but I don't see 12031(a1) or (e) being in effect or allowing for a detention. However, if the business wants you gone you will soon enough be in a public place so cooperation at this point (after all we do wish to educate in a non-confrontational manner) is a wise choice.

It still doesn't hurt to say politely and get on the record(if you're recording - and you better be too:mad:), "I'll cooperate with all lawful orders but I don't consent to any searches" and after the 12031e check "Am I being detained? Am I free to go?"...

If you don't mind the data base searches then by all means hang out with the PoPo and shoot the breeze for 1/2 hour. Make friends and influence people all you want...you're an OC ambassador. But at some point we do need to stop these extra-legal detentions. Take it on a case by case basis and weigh the odds - meaning are you recording and have friendly witnesses present????? Otherwise go with the flow.

GuyW
11-07-2008, 4:31 PM
Liberty1 just helped me write a letter to the City Attorney about the very same subject and how what they did was not totally kosher. 20-30 seconds is all it should have taken.


Copy the Chief.

(Can I get a copy?)

.

Liberty1
11-07-2008, 4:39 PM
Copy the Chief.

(Can I get a copy?)

.

The letter can be improved and I'd get Librarian, Hoffmang, Oaklander, RomansDad etc... into the act of giving the final blessing.

MudCamper
11-07-2008, 4:59 PM
random point blank scenario:

does unloaded open carry pertain to your registered handgun solely? would it also pertain; if in the situation, lets say someone had a pistol purchased for them from their parents. lets also go so far as to say the gun has not yet been transferred to their name and remains in their parents. or heck, lets just say someone wanted to borrow a parents particular handgun for a weekend at the ranch. would that still be legal?


to me it would seem like a grey area. but then again, if you have expressed permission to posess the firearm, and are not in a prohibited class preventing you from posessing one, then what are the other repercussions that could come into play? using the gun is entirely different as im aware of that, but i want to know about carrying.

It is not a gray area. There is no requirement that the firerarm be "registered" to you. Further, I own several handguns that I purchased in the 80's before the CA "registration" was started. These are also perfectly legal to OC.

It was illustrated in the Sacramento PD OC Memo (http://www.californiaopencarry.org/SPD_oc_memo.pdf) that at least that agency is aware of this:

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.

However, this paragraph also illustrates another point being discussed in this thread: Can they run the number. Technically all they can do is follow 12031(e) and check if it is loaded. Anything else is a flagrant 4A rights violation. But 99% of all cops won't buy it. We are eventually going to have to win the 4A back the hard way, in appeals court.

Interestingly, just a couple paragraphs down in the SPD OC Memo they get it right:

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.

FreedomIsNotFree
11-08-2008, 8:46 AM
If you want to keep a loaded mag in your pocket, just be sure to have an unloaded mag in the well of the gun. That way, the gun and the unloaded mag are clearly visible and within the law.

supersonic
11-08-2008, 9:07 AM
concealment of a magazine IS concealment of a weapon

How SURE are you about that? And if it is a fact, (just for my knowledge) could you please refer to the PC?

Liberty1
11-08-2008, 9:09 AM
Sadly :(, I recommend carrying only a pistol registered to you for activism purposes. If an officer wanted to get creative and teach you a lesson by claiming your pistol was loaded or concealed then with registration you're most likely looking at a misdemeanor and not a felony.

I know of one individual, who was not engaged in OC activism, who is currently defending himself against a creatively written report (defendants story- but I happen to believe him) and it is an uphill battle even as a misdemeanor case :mad:.

Liberty1
11-08-2008, 9:17 AM
How SURE are you about that? And if it is a fact, (just for my knowledge) could you please refer to the PC?

PC is 12025 modified by People vs Hale. But I do agree that this in our case (UOC) is unsettled law. We just advise OCing the mag too to avoid the question. A unloaded mag in the well, even as it may delay load time slightly, also helps mitigate a Hale situation as pointed out by Mudcamper.

But we should not be telling LE a concealed mag = 12025.

supersonic
11-08-2008, 5:34 PM
PC is 12025 modified by People vs Hale. But I do agree that this in our case (UOC) is unsettled law. We just advise OCing the mag too to avoid the question. A unloaded mag in the well, even as it may delay load time slightly, also helps mitigate a Hale situation as pointed out by Mudcamper.

But we should not be telling LE a concealed mag = 12025.

PM sent.;)

JDay
11-08-2008, 5:57 PM
PC is 12025 modified by People vs Hale. But I do agree that this in our case (UOC) is unsettled law. We just advise OCing the mag too to avoid the question. A unloaded mag in the well, even as it may delay load time slightly, also helps mitigate a Hale situation as pointed out by Mudcamper.

But we should not be telling LE a concealed mag = 12025.

I don't know if I would have an unloaded mag in the mag well. Do you think a cop could claim it was "concealed" in the weapon?

FreedomIsNotFree
11-08-2008, 6:58 PM
I don't know if I would have an unloaded mag in the mag well. Do you think a cop could claim it was "concealed" in the weapon?

If the gun itself is considering "open" I dont see any logic trying to argue an integral portion of that gun is somehow concealed. I see what you are getting at by with just a few seconds of logic, I'd hope most could see through it (no pun intended).

pullnshoot25
11-08-2008, 7:49 PM
PC is 12025 modified by People vs Hale. But I do agree that this in our case (UOC) is unsettled law. We just advise OCing the mag too to avoid the question. A unloaded mag in the well, even as it may delay load time slightly, also helps mitigate a Hale situation as pointed out by Mudcamper.

But we should not be telling LE a concealed mag = 12025.

This is just giving me an excuse to buy another handgun! To have an unloaded mag then swap to a loaded mag with a Makarov is going to be a PITA!

Theseus
11-08-2008, 10:05 PM
With the new XD40 I can quickly drop out a mag and insert a new and I was considering that...

One of the arguments for this is that then it will be hard for a BG to tell if the gun was unloaded. Since a cop is gonna check anyway...I can't see a downfall other than the fact that it would cost me about .01 seconds to drop it.

Seesm
12-17-2008, 11:13 PM
So what is the reason to be open carrying with a loaded magazine in let's say a pocket...?

Is it for self defense?


So in a bad situation you load your gun and take cover?

I just do not get it... Wish it was like the old west you could just carry...

Makes so much sense to me.

Pm me anyone to explain in depth as I like to learn. Thanks.

NiteQwill
12-18-2008, 12:19 AM
So what is the reason to be open carrying with a loaded magazine in let's say a pocket...?

Is it for self defense?


So in a bad situation you load your gun and take cover?

I just do not get it... Wish it was like the old west you could just carry...

Makes so much sense to me.

Pm me anyone to explain in depth as I like to learn. Thanks.
This has been covered so many times.

A loaded magazine in the pocket, btw, is a no-no.

artherd
12-18-2008, 2:52 AM
There needs to be PC that a crime has been committed to run a firearm through AFS. (ie, possible stolen gun.)

Since they quickly verified that the gun was unloaded, there is no PC.

artherd
12-18-2008, 2:55 AM
As for People v Hale, do not have an open empty gun, and conceal a mag.

Now is where things get fuzzy. If ONE magazine is part of the firearm, what about extra mags loaded & concealed?

This is unsettled law, but my opinion is that one mag + gun frame = 1 firearm. Extra mags probably can be concealed. Do so at your own peril however.

JDoe
12-18-2008, 6:10 AM
So what is the reason to be open carrying with a loaded magazine in let's say a pocket...?

Is it for self defense?


So in a bad situation you load your gun and take cover?

I just do not get it... Wish it was like the old west you could just carry...

Makes so much sense to me.

Pm me anyone to explain in depth as I like to learn. Thanks.

Seesm http://opencarry.mywowbb.com/forum12/ is a good resource for legal unloaded open carry in California and will have answers to your questions.

Fire in the Hole
12-18-2008, 6:48 AM
There needs to be PC that a crime has been committed to run a firearm through AFS. (ie, possible stolen gun.)

Since they quickly verified that the gun was unloaded, there is no PC.


I've read this statement several times on different threads on this forum and others. I must confess ignorance. I've been retired 2 years now, but I always ran the serial # when checking a firearm to see if it was stolen. I can't see where it's any different than running a vehicle license plate during a traffic stop to find out if it's a stolen vehicle. If a cop stopped someone that had a firearm stolen from me, I'd want the cop to run the serial # in addition to checking it's status. I called the training Sgt's on my local PD, SO, and CHP this week to find out what this law was. Likewise with my Fish and Game Warden next door. They had never heard of it, and stated basically that yes, the officers are expected to run the serial # during any encounter where a firearm is found or discovered on a person, or in his possession. So where's the disconnect with this rule? What is the statute that covers this? There must be a training break-down somewhere.

Theseus
12-18-2008, 7:32 AM
I am sure the difference between running the car via license plate and checking the serial of a gun is different in that there is no detainment required to run a car as the license plate is viewable in public.

To run the serial of the gun requires detainment and, from what I understand amounts to a search of property, which you would need a warrant for, so unless you have PC that the gun is stolen or that some other crime has been, is, or will be committed that you can not search my person or property.

12031 does not provide for you to search me, only inspect the weapon.

I've read this statement several times on different threads on this forum and others. I must confess ignorance. I've been retired 2 years now, but I always ran the serial # when checking a firearm to see if it was stolen. I can't see where it's any different than running a vehicle license plate during a traffic stop to find out if it's a stolen vehicle. If a cop stopped someone that had a firearm stolen from me, I'd want the cop to run the serial # in addition to checking it's status. I called the training Sgt's on my local PD, SO, and CHP this week to find out what this law was. Likewise with my Fish and Game Warden next door. They had never heard of it, and stated basically that yes, the officers are expected to run the serial # during any encounter where a firearm is found or discovered on a person, or in his possession. So where's the disconnect with this rule? What is the statute that covers this? There must be a training break-down somewhere.

Fire in the Hole
12-18-2008, 7:52 AM
Thanks, but if the3 police already have you "detained" to inspect the gun to find out if it's loaded, what's another 1 minute to run it through NCIC to find out if it's stolen? This seems like a reasonable time. Besides recovering stolen property and returning itg to its rightgful owner is a basic fundamental job of the police. It's one of the things my tax dolars pay for. I can see bad PR for police who only check to determine if a gun is loaded, then return it back to the crook. I can see a theft victim coming unglued if he found this out. But perhaps I'm just adressing this due to my apparentg lack of knowlege on the subject. To sum up, there is there a specific statute, or case law that prohibits police from running the serial # to find out if it's stolen, or just 12031 that does not specifically permit it in wording? Educate me.

Liberty1
12-18-2008, 7:53 AM
...stated basically that yes, the officers are expected to run the serial # during any encounter where a firearm is found or discovered on a person, or in his possession. So where's the disconnect with this rule? What is the statute that covers this? There must be a training break-down somewhere.

What we are talking about is basic 4th Amendment search and siezure principals and prohibitions against government action.

In our example an individual has been stopped for no other reason then the officer can see a lawful openly carried firearm.

In our example there is no resonable suspicion to detain for a "Terry investigation" and no probable cause to believe a crime had been, was being, or was about to be committed which would allow a peace officers to lawfully stop that individual.

Setting aside the constitutionality of 12031 (e), which in and of itself is likely a 4th A. violation, once the loaded check is done, which should only take seconds and if the firearm is found unloaded, there is no further lawful reason for a prolonged detention or additional searches (of serial #s, name DOB, Terry "pat down", digging into pockets, etc...) unless further searches and record checks are consensual or the officer found RS/PC.

Although I don't believe this is binding on CA, it is based on sound 4th A. principles: Arizona v. Hicks (http://en.wikipedia.org/wiki/Arizona_v._Hicks)

Additionally, this was recently published by the Cal. Police Officer Assoc. attorney concerning UOC and PC 12031(e): http://www.hoffmang.com/firearms/carry/CPOA-Client-Alert-12042008.pdf

Field personnel should be made aware of the current state of the law as set forth above and cautioned that this is not behavior warranting arrest, but that they are legally entitled under 12031(e) to demand inspection of any such firearms in order to ascertain that the weapon is unloaded. If the firearm is unloaded, it should be returned and the subject released to go about his/her lawful business.

AaronHorrocks
12-18-2008, 8:10 AM
This has been covered so many times.

A loaded magazine in the pocket, btw, is a no-no.

What about a loaded magazine in a magazine pocket?
Example: 5.11 Tactical pants's Magazine pocket. When loaded with a mag, it's obvious that there's a mag in there.

Liberty1
12-18-2008, 8:11 AM
To sum up, there is there a specific statute, or case law that prohibits police from running the serial # to find out if it's stolen, or just 12031 that does not specifically permit it in wording? Educate me.

Is there a specific statute which allows you to stop all persons carrying a Rolex to see if it is in the stolen property system?

No, rather it is prohibited by the 4th A and such searches are allowed only by the exceptions of RS/PC to detain and search if not consensual.

Oh, my father would really like his watch back if you could find it please. :p

7x57
12-18-2008, 8:12 AM
I've read this statement several times on different threads on this forum and others. I must confess ignorance. I've been retired 2 years now, but I always ran the serial # when checking a firearm to see if it was stolen. I can't see where it's any different than running a vehicle license plate during a traffic stop to find out if it's a stolen vehicle. If a cop stopped someone that had a firearm stolen from me, I'd want the cop to run the serial # in addition to checking it's status. I called the training Sgt's on my local PD, SO, and CHP this week to find out what this law was. Likewise with my Fish and Game Warden next door. They had never heard of it, and stated basically that yes, the officers are expected to run the serial # during any encounter where a firearm is found or discovered on a person, or in his possession. So where's the disconnect with this rule? What is the statute that covers this? There must be a training break-down somewhere.

Apparently not *every* contact with a gun ends up with a serial number check. Over Thanksgiving weekend we were shooting out in the desert near Barstow and someone called the Sheriff because they heard shots. The deputy that responded checked our ID's (no doubt to see if we had any felonies or something) but did *not* run the serial numbers on the guns. Granted, there would have been quite a few to run. There were no dreaded evil black rifles to cause fear and loathing, but there were handguns.

On the whole I thought he did quite a good job, very respectful and no hassles--so much so that it didn't even occur to me at the time that perhaps a nice letter to to the SD thanking them for his courteous and professional stop might have been appropriate. To be honest I suspect he'd have been happy to shoot a few rounds if he'd been off-duty.

Should I have written the letter in the interests of goodwill? I guess I still could. It didn't occur to me to write down his name or anything, but I could still give the date and approximate time and location.

7x57

Liberty1
12-18-2008, 8:13 AM
What about a loaded magazine in a magazine pocket?
Example: 5.11 Tactical pants's Magazine pocket. When loaded with a mag, it's obvious that there's a mag in there.

I don't see concealed mag = concealed gun as settled law. Rather we advise people to avoid the issue by OCing the mag in a mag pouch. And it allows for easier access in case of need.

Fire in the Hole
12-18-2008, 8:13 AM
Liberty1, thanks for the detailed information and the links. They were helpful. I see that it all comes down to a 4th amendment issue, and the case law of Hicks. Not a specific prohibitative statue in the PC.

Unfortunately due to budget cuts, most depts. can no longer afford to subscribe to the CAPOA updates, as they charge for them. Local depts. rely on the DA to come in once a year to discuss any major changes in the law. And this only happens around Feb of each year for about 3 hours. Reserve officers are at even more of a disadvantage.

My personal opinion based upon my own personal experience is that Police Managers want you to just go out there and use common sense, and not worry about specifics of the ever changing laws. They feel that recovering stolen property is more of a priority. Who cares if the search is squashed on discovery, or thrown out. The important thing is that the victim got his property back, the BG can not get it returned to him. Although I've personally worked briefly as the evidence tech., when I was out on temp. disability, and had BG's as the owner of the Meth come right into the station house to get their drugs back that were unlawfully seized based upon a 4th amendment search.

Liberty1
12-18-2008, 8:18 AM
Apparently not *every* contact with a gun ends up with a serial number check. Over Thanksgiving weekend we were shooting out in the desert near Barstow and someone called the Sheriff because they heard shots. The deputy that responded checked our ID's (no doubt to see if we had any felonies or something) but did *not* run the serial numbers on the guns. Granted, there would have been quite a few to run. There were no dreaded evil black rifles to cause fear and loathing, but there were handguns.

On the whole I thought he did quite a good job, very respectful and no hassles--so much so that it didn't even occur to me at the time that perhaps a nice letter to to the SD thanking them for his courteous and professional stop might have been appropriate. To be honest I suspect he'd have been happy to shoot a few rounds if he'd been off-duty.

Should I have written the letter in the interests of goodwill? I guess I still could. It didn't occur to me to write down his name or anything, but I could still give the date and approximate time and location.

7x57

California has no Stop and ID statute. Hopefully the ID records checks were consensual? or were you in a no shooting area?

Liberty1
12-18-2008, 8:27 AM
My personal opinion based upon my own personal experience is that Police Managers want you to just go out there and use common sense, and not worry about specifics of the ever changing laws. They feel that recovering stolen property is more of a priority. Who cares if the search is squashed on discovery, or thrown out.

They will care when US Code title 42,1983 (http://www.law.cornell.edu/uscode/html/uscode42/usc_sec_42_00001983----000-.html) is brought to bear. Personal damages are a beeach when you should have known better.

1983. Civil action for deprivation of rights
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer’s judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia.

Fire in the Hole
12-18-2008, 8:36 AM
Liberty1 I tried your link, but all I get is a page to the Cornell School of Law asking for a donation. I'm not arguing that your are right, but as you say "Should have known better." If a cop isn't trained to know federal statutes, and relys on his dept. to keep him abreast of these and other vicarious liability issues etc, then the "test of reasonableness" comes into play. I've seen it happen before once when the City Attorney, Chief, and bureau of professional standards had never heard nor seen of a particular case law, then how is the lonely cop on the beat with a HS education, working as a reserve suppose to know? But anyway, thanks again for the information. It was useful in filling in my gap.

Liberty1
12-18-2008, 8:38 AM
Liberty1 I tried your link, but all I get is a page to the Cornell School of Law asking for a donation.

Hit the "no" thanks option. Also do some "open carry" searches on this site and check out californiaopencarry.org for more fun reading.

and welcome to calguns!

have you bought an OLL yet? :D

AaronHorrocks
12-18-2008, 8:47 AM
I don't see concealed mag = concealed gun as settled law. Rather we advise people to avoid the issue by OCing the mag in a mag pouch. And it allows for easier access in case of need.

It sounds likt you haven't worn 5.11 pants.
The "magazine" pocket on 5.11 pants are specifically designed for a magazine. The baseplate partcially sticks out, allowing for a quick frim grab. The velcro lid allows for one motion to remove the mag. It's designed "for easier access in case of need"

Decoligny
12-18-2008, 8:53 AM
Thanks, but if the3 police already have you "detained" to inspect the gun to find out if it's loaded, what's another 1 minute to run it through NCIC to find out if it's stolen? This seems like a reasonable time. Besides recovering stolen property and returning itg to its rightgful owner is a basic fundamental job of the police. It's one of the things my tax dolars pay for. I can see bad PR for police who only check to determine if a gun is loaded, then return it back to the crook. I can see a theft victim coming unglued if he found this out. But perhaps I'm just adressing this due to my apparentg lack of knowlege on the subject. To sum up, there is there a specific statute, or case law that prohibits police from running the serial # to find out if it's stolen, or just 12031 that does not specifically permit it in wording? Educate me.

Rephrase it this way: Thanks, but if the police already have you "detained" to inspect the gun to find out if it's loaded, what's another 1 minute to have you turn out your pockets to see if you are carrying drugs?

Or this way: Thanks, but if the police already have you "detained" to inspect the gun to find out if it's loaded, what's another 1 minute to have them run your I.D. to find out if you have wants and warrents?

If there is no PROBABLE CAUSE for this search, then it violates your 4th amendment right to be free from unreasonable search and siezure and to be secure in your papers and effects (property).

Liberty1
12-18-2008, 8:53 AM
It sounds likt you haven't worn 5.11 pants.
The "magazine" pocket on 5.11 pants are specifically designed for a magazine. The baseplate partcially sticks out, allowing for a quick frim grab. The velcro lid allows for one motion to remove the mag. It's designed "for easier access in case of need"

I keep my mags in belt pouches. My cell phone goes in my 5.11 pants "mag pouch". :)

Carry on!

But along this line of thinking, if a gun is concealed in a "gun case" it should be considered openly carried and not a violation of 12025. Keep in mind I support Vermont carry (http://www.gunowners.org/vtcarry.htm).

Fire in the Hole
12-18-2008, 8:59 AM
I will follow your advice. But as I allude to to in the "Should have known better" test of reasonableness. It seems that the only way most of this information can be gleened is through the internet. Not all cops own computers, nor care to do legal research on their own time. By the end of the day, they have had it. Supervisors hate to see cops just Googleing in the office when they want them out showing the black and white in the neighborhood. Furthermore, most agencies disallow internet log in permission on on Dept computers, for fear that the cops might be visiting places they shouldn't be. No easy fix I guess, but lack of training has always been a bone of contention for me personally. It's expensive and time consuming. This is why lots of Depts. limit range time to the bare minimum, due to the cost of ammo and targets. Our local SO deputies have to take a furlough day once a month to make the depts. pay day.


I have not bought an OLL yet. I've just learned of them this past year. I plan to move to ID in a couple of years any way so, no rush. Right now I'm saving for a Socom II. I bought a nice used Remington Tac Storm digital camoed pistol grip shotgun yesterday for $400.00. It's in mint condition, so I'm happy today. On my way to the range to put some Hornady TAP buck shot through it.

The SoCal Gunner
12-18-2008, 9:01 AM
then how is the lonely cop on the beat with a HS education, working as a reserve suppose to know?

Ain't it grand that when citizens don't know the law it can put them in jail but when a cop on the beat with a HS education doesn't know the law they just get a slap on the wrist after violating a citizen's rights.

Liberty1
12-18-2008, 9:02 AM
I will follow your advice. But as I allude to to in the "Should have known better" test of reasonableness.

"Should have known better (http:/http://en.wikipedia.org/wiki/Qualified_immunity)" is not yet. But it is coming...

...As outlined by the Supreme Court in Harlow v. Fitzgerald, 457 U.S. 800 (1982),[1] qualified immunity is designed to shield government officials from actions "insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known."

2nd A. rights are "not yet" but 4th A. is a "clearly established statutory or constitutional right...".

7x57
12-18-2008, 9:08 AM
California has no Stop and ID statute. Hopefully the ID records checks were consensual? or were you in a no shooting area?

Shooting was fine there--he didn't even tell us to stop, though he didn't really want to be called again. We elected to stop because it was getting late and moving further out would have run out our remaining shooting light. I also did not want to push the situation because he'd just have gotten another call and his supervisor might have been unhappy that he didn't resolve the situation the first time--as he was being very good about it I wanted to respond in kind. It's good for the next person he has to check out too.

Yes, the ID check was consensual. It didn't occur to me at the time that I could have refused, nor did I have a problem with him doing it. My little boy was there, two teenage nephews, and my father and mother-in-law. He only asked for ID on my FIL and myself. He also asked if the guns were registered to us--a stupid question, given how many ways there are that they wouldn't have to be, and I think theoretically the handgun stuff isn't registration even though it certainly seems to be in practice--but the only reasonable response seems to be "yes" if they are legally yours, and he took our word for it.

You might disagree with consenting to a non-compulsory check, but I don't think it was the time or place for activism. He was doing his job well and it was very non-confrontational; he responded to a call about shooting alone and was there with half a dozen people near a table full of handguns and ammo and couldn't really watch everyone all the time, so clearly he was not treating us as likely perps. He didn't really want my FIL to clear the guns while we had our initial conversation, because it mean someone fiddling with them out of his line of vision, but after a few minutes I don't even think he cared about that. That's an understandable worry for an ex-military (as it turned out) police officer, and I had no problem with yelling to my FIL not to clear the guns right then (actually I think he didn't hear me and probably finished clearing them anyway, and the deputy didn't make an issue of it). I had no reason to refuse the check, and if I'd done so it would have turned into a (probably mild) confrontation. If I'd thought about it and wanted to make an issue of it, I'd have consented anyway and waited until he was leaving and then very gently said that technically I didn't have to consent to the check, so it was clear I wasn't saying it to hide anything.

I was more concerned with making sure he didn't regret taking the approach he did--the next guy hopefully will benefit. I also had the family there. If I really wanted to make an issue of it, then I'd only do it when I didn't have the in-laws and most especially when I didn't have my four-year-old along.

7x57

Fire in the Hole
12-18-2008, 9:10 AM
Ain't it grand that when citizens don't know the law it can put them in jail but when a cop on the beat with a HS education doesn't know the law they just get a slap on the wrist after violating a citizen's rights.


I can't justify it, or excuse it really. It's an imperfect world. We could fix it by requiring all cops to have a law degree, and compensating for it at say $100 grand a year plus benifits. But can cities, counties, states, and the fed system foot this bill? No. What would the prosepective hiring pool look like? I went with my son-in-law- to be, to a Firefighter Job Fair in Oakland a couple of months ago. The line stretched twice around the block. The Oakland P.D. had it's recruitment booth open as well. It might haved well been convered with cob webs accompanied by the sound of crickets chirpping. Not one young person in line to apply or seek info. for LE Career.

Ask them why? (And I always do) The answer is usually, "Because there's too much paperwork, the public distrusts you, and you can get sued for one litttle mistake. Who needs that hassle?"

The SoCal Gunner
12-18-2008, 9:20 AM
I can't justify it, or excuse it really. It's an imperfect world. We could fix it by requiring all cops to have a law degree, and compensating for it at say $100 grand a year plus benifits. But can cities, counties, states, and the fed system foot this bill? No.

I was basically referring to the comment regarding spending the extra minute to do the NCIC check when there is no probable cause to believe the weapon is stolen. If the NCIC check is a search and is done without consent or probable cause, then it violates the 4th amendment.

Don't need a law degree for that.

Liberty1
12-18-2008, 9:24 AM
I can't justify it, or excuse it really. It's an imperfect world. We could fix it by requiring all cops to have a law degree, and compensating for it at say $100 grand a year plus benifits. But can cities, counties, states, and the fed system foot this bill? No. What would the prosepective hiring pool look like? I went with my son-in-law- to be, to a Firefighter Job Fair in Oakland a couple of months ago. The line stretched twice around the block. The Oakland P.D. had it's recruitment booth open as well. It might haved well been convered with cob webs accompanied by the sound of crickets chirpping. Not one young person in line to apply or seek info. for LE Career.

Ask them why? (And I always do) The answer is usually, "Because there's too much paperwork, the public distrusts you, and you can get sued for one litttle mistake. Who needs that hassle?"

It is incumbent upon the state's agents to tread lightly and take their time showing deference to the citizenry when they are not sure of the legality of their actions.

This deference is not usually seen by officers who have the power to make "contempt of cop" arrests on unclear issues (to them) and just "let the judge sort it out".

The Unloaded Open Carry detentions and arrests for both 12025 and 12031 (established laws with establish case law), none of which has resulted in charges as it is NO crime, are an example of this attitude by LE. It's the "we must do something, anything attitude in case this person might, maybe, will do something in the future" that will get them in trouble constitutionally (4th A. for now), even when the information is presented to them at the time of the encounter.

Here is the latest: http://opencarry.mywowbb.com/view_topic.php?id=19660&forum_id=12&jump_to=325254#p325254

and past enounters

http://californiaopencarry.org/faq.html
Personal accounts of LEO encounters: Theseus 2, Theseus 1, pullnshoot, CA_Libertarian, Prophet, 4thSeal, Hellrazor, ConditionThree

Cases which resulted in false arrest, with no charges filed: mpmsc, Lin, bobbarker

Fire in the Hole
12-18-2008, 9:27 AM
I was basically referring to the comment regarding spending the extra minute to do the NCIC check when there is no probable cause to believe the weapon is stolen. If the NCIC check is a search and is done without consent or probable cause, then it violates the 4th amendment.

Don't need a law degree for that.


And yet when the Hicks v AZ came before SCOTUS, there were 2 disenting opinions from Supreme Court Justices with law degrees that did not believe it to be a 4 am vio.

Dissenting opinions:
Justice O'Connor disagreed with the majority's characterization of the police actions regarding the stereo equipment as a full-blown search. Rather, she called it a "cursory inspection," and argued that the police could conduct such a cursory inspection on reasonable suspicion that an object is contraband or evidence of criminal activity. A "distinction between searches based on their relative intrusiveness and its subsequent adoption by a consensus of American courts is entirely consistent with our Fourth Amendment jurisprudence." In other cases, she argued, the Court had allowed minimally invasive searches under the Fourth Amendment in the face of strong governmental interests. The government had such an interest in this case, because of the "prevalence of mass-produced goods in our national economy" whose only distinguishing characteristic was a serial number.

Justice Powell wondered what the police should have done in the situation they faced here. The officer's experience told him that the stereo equipment was probably stolen, but lacking probable cause, he could not have obtained a warrant to seize it, and he could not have remained in Hicks's apartment after the other officers had finished searching for weapons and the shooter in order to prevent Hicks from removing the stereo equipment. In the face of the dilemma, Justice Powell worried that the bright-line rule making moving the equipment a "search" requiring probable cause would frustrate the efforts of "conscientious police officers" to "lawfully obtain[] evidence necessary to convict guilty persons."

DDT
12-18-2008, 9:30 AM
I can't justify it, or excuse it really. It's an imperfect world. We could fix it by requiring all cops to have a law degree, and compensating for it at say $100 grand a year plus benifits.

Well, average citizens aren't granted 100K per year and a law degree but they are required to follow the law in their daily lives where ignorance is no excuse. How then do you justify letting violations by LEOs slide because of ignorance?


Ask them why? (And I always do) The answer is usually, "Because there's too much paperwork, the public distrusts you, and you can get sued for one litttle mistake. Who needs that hassle?"

That really surprises me that HS graduates and new college graduates are seriously concerned with a job in LE due to the possibility of being sued for "one little mistake." My dad worked patrol for 22 years as a trooper in another state. He did his job effectively and never once got sued for carrying out his duties. I have another friend out here in CA who is a detective for the civil enforcement group in the local SO and he is VERY concerned about it and spends considerable time keeping up to date on the laws concerning civil enforcement. He hasn't been sued because he's careful and takes his job seriously as a profession and follows the law, and doesn't take a just "Do what you have to do to get the bad guys or complete the job" attitude.

DDT
12-18-2008, 9:36 AM
And yet when the Hicks v AZ came before SCOTUS, there were 2 disenting opinions from Supreme Court Justices with law degrees that did not believe it to be a 4 am vio.

Dissenting opinions:
Justice O'Connor disagreed with the majority's characterization of the police actions regarding the stereo equipment as a full-blown search. Rather, she called it a "cursory inspection," and argued that the police could conduct such a cursory inspection on reasonable suspicion that an object is contraband or evidence of criminal activity. A "distinction between searches based on their relative intrusiveness and its subsequent adoption by a consensus of American courts is entirely consistent with our Fourth Amendment jurisprudence." In other cases, she argued, the Court had allowed minimally invasive searches under the Fourth Amendment in the face of strong governmental interests. The government had such an interest in this case, because of the "prevalence of mass-produced goods in our national economy" whose only distinguishing characteristic was a serial number.

Justice Powell wondered what the police should have done in the situation they faced here. The officer's experience told him that the stereo equipment was probably stolen, but lacking probable cause, he could not have obtained a warrant to seize it, and he could not have remained in Hicks's apartment after the other officers had finished searching for weapons and the shooter in order to prevent Hicks from removing the stereo equipment. In the face of the dilemma, Justice Powell worried that the bright-line rule making moving the equipment a "search" requiring probable cause would frustrate the efforts of "conscientious police officers" to "lawfully obtain[] evidence necessary to convict guilty persons."

WOW...

Fire in the Hole
12-18-2008, 9:42 AM
DDT Wrote:

"How then do you justify letting violations by LEOs slide because of ignorance?"

I think I already answered that question with my preamble to the previous post: "I can't justify it, or excuse it really."


I spent a lot of time taking liability seminars on my own time and on my own dime. And pursuing a college degree in AJ during my off hours. I got sued twice, started in state court, went onto federal court. It dragged on for 8 years. I had a really hard time getting a home loan due to the pending personal liabilitgy litigation. I was found not guilty eventually in both these civil trials. Took it's toll on me and my family.

Young people are very much aware of police lawsuits nowadays. It's all over the news and the internet. When was the last time you heard of a Firefighter being sued?

Liberty1
12-18-2008, 10:03 AM
All of the 4th A. issues discussed generally stem from exceeding ones authority during an otherwise lawful criminal investigation by police; lawful traffic stop but the trunk is searched without a warrant or PC, etc...

UOC is unique and not analogous to other searches because PC 12031 (e) authorizes a detention and search based on mere possession absent normal RS/PC for a normal criminal investigation .

hobard
12-18-2008, 10:28 AM
All of the 4th A. issues discussed generally stem from exceeding ones authority during an otherwise lawful criminal investigation by police.

UOC is unique and not analogous to other searches because PC 12031 (e) authorizes a detention and search based on mere possession absent normal RS/PC for a normal criminal investigation .

IANAL, but I would tend to agree. 12031(e) gives the officer the authority to inspect the weapon. While they are inspecting the weapon, the serial number is in plain view, and you have little expectation of privacy. At that point, I would imagine running the serial number would be analogous to running a license plate. While continuing the detention specifically to run the serial number would be a 4th amendment violation, I do not see what would prevent the officer from running the serial number once you are "free to go."

Liberty1
12-18-2008, 10:43 AM
IANAL, but I would tend to agree. 12031(e) gives the officer the authority to inspect the weapon. While they are inspecting the weapon, the serial number is in plain view, and you have little expectation of privacy. At that point, I would imagine running the serial number would be analogous to running a license plate. While continuing the detention specifically to run the serial number would be a 4th amendment violation, I do not see what would prevent the officer from running the serial number once you are "free to go."

If the officer memorized the serial number and your detention was not delayed solely for that purpose only I would agree.

Now if the weapon's loaded status could be verified without handling the arm, lets say it's in a serpa holster no mag in the well, with the slide locked back and the chamber visible, then the officer would not see the serial number in the course of the "(e)" check.

Or one could do what some have suggested doing and place tape over the serial number making the number no longer in "plain view".

Having a tape recorder and specifically stating that you do not consent to any searches, but will comply with lawful orders demanding an "(e)" check, would also aid one's case IMO.

I think it's good, for now, to have a serial number and/or name DOB run in NCIS, thereby creating a record of the search, because that may be the UOCers only hard proof of the detention occurred to that specific individual.

And welcome to Calguns... oops, been here a while I see, congrats on the 1st post!!!

Fire in the Hole
12-18-2008, 10:44 AM
Liberty1 aside from generic 4 amendment law, which I get. Do you know of any case where the 4th amendment was tested for a police officer runing a gun's serial # out of nothing more than a 12031(e) P.C. inspection?

BTW, when I was a rookie in 1980, I conducted my firswt 12031(e) inspection. I was not taught it in the academy, but ran across it while reading the PC on my own time. My Sgt. tore into me for it, saying absent any PC, I could not do it. I pointed out 12031(e) to him. His hat almost blew off. He never heard of it before. He took it to the other Sgts. 1 out of 8 knew about it. The Lt. and Capt. had not.

hobard
12-18-2008, 10:49 AM
And welcome to Calguns... oops, been here a while I see, congrats on the 1st post!!!

Thanks! I am not what you would call a prolific poster ;)

Clearly showing an empty action would probably put you in the clear. However, covering the serial number with tape would make you guilty of 537e PC -

537e. (a) Any person who knowingly buys, sells, receives, disposes
of, conceals, or has in his or her possession any personal property
from which the manufacturer's serial number, identification number,
electronic serial number, or any other distinguishing number or
identification mark has been removed, defaced, covered, altered, or
destroyed, is guilty of a public offense, punishable as follows:

Liberty1
12-18-2008, 10:52 AM
Liberty1 aside from generic 4 amendment law, which I get. Do you know of any case where the 4th amendment was tested for a police officer runing a gun's serial # out of nothing more than a 12031(e) P.C. inspection?

Not that I know of - IANAL. Stops for 12031e only (no other PC for stop such as traffic/criminal investigation) really only occur due to Open Carrying and really have only been documented by our UOCers here and at opencarry.org.

I think it's past time to test those waters. Maybe next year with Nordyke and 2nd A incorporation behind us.

Fire in the Hole
12-18-2008, 11:03 AM
Not that I know of - IANAL. Stops for 12031e only (no other PC for stop such as traffic/criminal investigation) really only occur due to Open Carrying and really have only been documented by our UOCers here and at opencarry.org.

I think it's past time to test those waters. Maybe next year with Nordyke and 2nd A incorporation behind us.



In my case it was a .22 rifle and a shotgun in a horizontal rack mounted inside the cab of a pu truck, in plain view going down a county road. The guns were completely visible through all the windows, mounted forward of teh rear window. Yes I ran the serial #'s, as I have always done. I've recovered a few stolen ones too. I'm just now hearing that these were 4th amendment violations. It was deemed a good stop. And yes, both were loaded, with rounds in the tubular magazines, chambers empty.

Good thing I'm retired now. All these years I thought I'd done a pretty darn good job out there. Now I'm finding out what a reckless loose cannon on the deck I really was.

Liberty1
12-18-2008, 11:38 AM
Good thing I'm retired now. All these years I thought I'd done a pretty darn good job out there. Now I'm finding out what a reckless loose cannon on the deck I really was.

Have you read People vs Knight? :D

Fire in the Hole
12-18-2008, 12:00 PM
Have you read People vs Knight? :D

Never heard of it. I just tried a Google search, and got Knoght vs Florida, which is a death panalty case. To what do you refer?

Liberty1
12-18-2008, 12:49 PM
Never heard of it. I just tried a Google search, and got Knoght vs Florida, which is a death panalty case. To what do you refer?

People v Knight - deals with the inapplicability of 12031 in unincorporated areas.

http://caselaw.lp.findlaw.com/data2/californiastatecases/c045858.pdf