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View Full Version : What is the point of CA Penal Code section 12026.2?


marshaul
11-21-2008, 11:35 PM
I was browsing over at calgunlaws.com, and I read the following:
No. The legal authorization to transport a concealed handgun without a permit unloaded and in a motor vehicle's trunk or a separate locked container in Penal Code Section 12026.1 applies only while going to or from the specific places, and for the specific purposes, identified in Penal Code Section 12026.2 (going hunting, to or from a range, etc.). It is illegal to carry a concealed handgun without a permit for general purposes, such as self defense, even though the firearm is transported in the trunk of a motor vehicle or in a separate locked container. Section 12026.1 is not very clear on this point, but Section 12026.2 is, so it is prudent to read them together. Again, handguns being lawfully transported concealed in a motor vehicle's trunk or in a separate locked container cannot be loaded nor can ammunition be attached to them in any manner.

Which, to my reading of 12026.1 and 12026.2, is incorrect. Neither section mentions the other. They both only refer to 12025.

According to 12026.1,
(a) Section 12025 shall not be construed to prohibit any
citizen of the United States over the age of 18 years who resides or
is temporarily within this state, and who is not within the excepted
classes prescribed by Section 12021 or 12021.1 of this code or
Section 8100 or 8103 of the Welfare and Institutions Code, from
transporting or carrying any pistol, revolver, or other firearm
capable of being concealed upon the person, provided that the
following applies to the firearm:
(1) The firearm is within a motor vehicle and it is locked in the
vehicle's trunk or in a locked container in the vehicle other than
the utility or glove compartment.

Once again, it doesn't say anything about 12026.2, nor does 12026.2 mention this section.

So, by my reading, 12026.1 alone makes it legal to have an unloaded firearm in a locked case in a vehicle, regardless of origin/destination.

The "scary" phrase from 12026.2 is as follows:
(b) In order for a firearm to be exempted under subdivision (a),
while being transported to or from a place, the firearm shall be
unloaded, kept in a locked container, as defined in subdivision (d),
and the course of travel shall include only those deviations between
authorized locations as are reasonably necessary under the
circumstances.

Of course, here "subdivision (a)" refers to 12026.2(a) and obviously has nothing to do with 12026.1.

So, I have two questions:

1: How does 12026.2 invalidate the exemption provided by 12026.1? Is there any precedent for this? Any reason to think it does?

2: If my thinking is right and 12026.2 only provides further exemptions 12025 without affecting 12026.1, what is the point of it, given that all the exemptions provided by 12026.2(a) require the exact same conditions required to achieve the exemption granted by 12026.1, which doesn't apply only to certain circumstances?

My tentative answer: By my reading of 12025 and 12025.1 (without taking into consideration 12026.2), the only way to carry on foot is UOC (unloaded open carry). Thus, the function of 12026.2 is to allow for carry on foot unloaded in a locked contained when going to/from a range or shooting competition etc.

However, when in a vehicle we have the 12026.1 exemption which requires no special origin/destination.

So, what am I missing? Why does my reading of the law differ so much from the one I quoted above?

E Pluribus Unum
11-22-2008, 12:05 AM
I was browsing over at calgunlaws.com, and I read the following:


Which, to my reading of 12026.1 and 12026.2, is incorrect. Neither section mentions the other. They both only refer to 12025.

According to 12026.1,


Once again, it doesn't say anything about 12026.2, nor does 12026.2 mention this section.

So, by my reading, 12026.1 alone makes it legal to have an unloaded firearm in a locked case in a vehicle, regardless of origin/destination.

The "scary" phrase from 12026.2 is as follows:


Of course, here "subdivision (a)" refers to 12026.2(a) and obviously has nothing to do with 12026.1.

So, I have two questions:

1: How does 12026.2 invalidate the exemption provided by 12026.1? Is there any precedent for this? Any reason to think it does?

2: If my thinking is right and 12026.2 only provides further exemptions 12025 without affecting 12026.1, what is the point of it, given that all the exemptions provided by 12026.2(a) require the exact same conditions required to achieve the exemption granted by 12026.1, which doesn't apply only to certain circumstances?

My tentative answer: By my reading of 12025 and 12025.1 (without taking into consideration 12026.2), the only way to carry on foot is UOC (unloaded open carry). Thus, the function of 12026.2 is to allow for carry on foot unloaded in a locked contained when going to/from a range or shooting competition etc.

However, when in a vehicle we have the 12026.1 exemption which requires no special origin/destination.

So, what am I missing? Why does my reading of the law differ so much from the one I quoted above?

One does not invalidate the other, they augment each other. They are two separate lists of exemptions to concealed carry.

Doheny
11-22-2008, 12:17 AM
You're right, the laws are very confusing. That's the one good thing about having a CCW, you don't need to work about the guns on your permit when you're going to the range (keeping them locked up, etc.) You just need to keep them concealed.

Of course, any handguns not on your permit must be properly transported.

E Pluribus Unum
11-22-2008, 12:17 AM
For clarification... 12026.2 lists 20 different scenarios that carrying concealed is acceptable. For ALL 20 of those scenarios, the resitrctions of 12026.2(b) apply:

(b) In order for a firearm to be exempted under subdivision (a),
while being transported to or from a place, the firearm shall be
unloaded, kept in a locked container, as defined in subdivision (d),
and the course of travel shall include only those deviations between
authorized locations as are reasonably necessary under the
circumstances.

12026.1 is an exemption from concealed carry only. It is not a requirement. 12025 prohibits carrying a firearm concealed. 12026.1 says if it is in a locked case, or in the trunk of a car, you can carry it concealed all you want.

12027 has further exceptions to concealed carry. My personal favorite is 12027(g). It states that a licensed hunter or a licensed fisherman can carry concealed without any permit while going to or from an expedition. This means, no locked case, no nothing. This is while unloaded of course.

XDshooter
11-22-2008, 12:18 AM
They don't. Unless specifically stated in the section, one part does not apply to another section.

12026.2 (b) has nothing to do with 12026.1 (any) and only applies to 12026.2 (b).

What that person posted is incorrect. You are are exempt from 12025 if you transport you handgun in a locked container or trunk. It can be in there indefinitely.

12026.2 (b) would come into play if you started to just walk around with an unloaded handgun in a locked container. Unless you are complying with one of the exemptions in 12026.2 (a) (1-20) you would be guilty of 12025.

XDshooter
11-22-2008, 12:22 AM
12026.1 is an exemption from concealed carry only. It is not a requirement. 12025 prohibits carrying a firearm concealed. 12026.1 says if it is in a locked case, or in the trunk of a car, you can carry it concealed all you want. This includes walking down the street, on a bike, on a motorcycle, et cetera. If you put a pad lock on your backpack that prevents the opening of the container without a lock, you can carry a concealed handgun in that compartment.


That is not what 12026.1 says at all. It CLEARLY states the exemptions and the two only apply to transportation:
1) in a motor vehicle
2) DIRECTLY to or from a motor vehicle

Don't start telling people that walking around or riding your bike is one of these two things. That's not an exemption. These two are the ONLY actions that exempt you from 12025 per 12026.1

E Pluribus Unum
11-22-2008, 1:04 AM
That is not what 12026.1 says at all. It CLEARLY states the exemptions and the two only apply to transportation:
1) in a motor vehicle
2) DIRECTLY to or from a motor vehicle

Don't start telling people that walking around or riding your bike is one of these two things. That's not an exemption. These two are the ONLY actions that exempt you from 12025 per 12026.1

I stand corrected... I was mixing up 12027 with 12021. That's what I get for posting from memory instead of checking. :)

I am a member of a shooting club so I use the exemption in 12027 to transport concealed but in reading it... the exemptions in 12027(f) does not require a locked case. Big brain fart... thanks for correcting that.

It is interesting that you point out that it does specifically say "within a motor vehicle". So then I guess Motorcycles are SOL.

marshaul
11-22-2008, 1:26 AM
Is there any case law that clarifies the meaning of "secure" (modifies container)?

As used in this section, "locked container" means a secure
container which is fully enclosed and locked by a padlock, key lock,
combination lock, or similar locking device.

XDshooter
11-22-2008, 2:12 AM
I stand corrected... I was mixing up 12027 with 12021. That's what I get for posting from memory instead of checking. :)

I am a member of a shooting club so I use the exemption in 12027 to transport concealed but in reading it... the exemptions in 12027(f) does not require a locked case. Big brain fart... thanks for correcting that.

It is interesting that you point out that it does specifically say "within a motor vehicle". So then I guess Motorcycles are SOL.


I guess it depends on who's definition. I think the DMV refers to motorcycles as motor vehicles.

I think it could be articulated that any motor powered people transportation device that is legal to use public roads is a motor vehicle.

As for bike, I meant bicycle.

E Pluribus Unum
11-22-2008, 2:30 AM
I guess it depends on who's definition. I think the DMV refers to motorcycles as motor vehicles.

I think it could be articulated that any motor powered people transportation device that is legal to use public roads is a motor vehicle.

As for bike, I meant bicycle.

A motorcycle is a motor vehicle.

Unless it is a Goldwing or similar bike I could see it but how could a firearm be "within" a motorcycle?

It appears that on motorcycles that do not contain a lockable compartment large enough to hold a firearm there would be no legal way to do it.

CA_Libertarian
11-22-2008, 9:20 AM
Is there any case law that clarifies the meaning of "secure" (modifies container)?

I'm not aware of any, and a quick search on FindLaw.com didn't turn up anything useful.

If there is no precedent, the court has to apply the common meaning of the word:
(From m-w.com)

1) a: archaic : unwisely free from fear or distrust : overconfident b: easy in mind : confident c: assured in opinion or expectation : having no doubt

2) a: free from danger b: free from risk of loss c: affording safety <a secure hideaway> d: trustworthy , dependable <a secure foundation>

Of course, all the applicable definitions are subjective. This means a judge/jury will be deciding if you container was reasonably secure.

IMO:
Paper bag with a cable lock around it - probably not 'secure'
Briefcase with integral locks - probably 'secure'
Canvas bag with lock on zipper handles - questionable (some zippers are easy to overcome, and would not require removal of the lock)

ETA: I like that the archaic meaning of the word reflects that 'security' is an illusion. Nothing can ever be 'free from danger' or 'risk of loss.' Maybe the legislature should rewrite the wording of this statute to read "transported in a not unsecured case." This would be consistant with the 'not unsafe' gun list.

fairfaxjim
11-22-2008, 9:36 AM
There is a difference between 12016.1 and 12026.2 in that the more liberal exemption of 12026.1 is only for any citizen of the United States over the age of 18 years , while the more restrictive in purpose and route exemptions in 12026.2 are available to pretty much anyone not prohibited to posess a concealable firearm, whether a citizen or not, and does not even contain a residency restriction.

As I interpret it, a US citizen not otherwise prohibited can carry an unloaded handgun, in a locked container (or locked automobile trunk) pretty much anywhere, anytime, and be exempted from concealed cary of 12025. A non citizen is restriced to the specific exemptions and route restrictions of 12026.2.

And to reinforce the OP's conclusion that 12026.1 and 12026.2 are separate from each other, 12026.2 includes:

(c) This section does not prohibit or limit the otherwise lawful carrying or transportation of any pistol, revolver, or other firearm capable of being concealed upon the person in accordance with this chapter.

If you are exempt from 12025 by way of 12026.1, then 12026.2(c) specifically states that it does not limit you any further.

CalCop
11-22-2008, 9:49 AM
12026.1 and 12026.2 are almost always misinterpreted, and in many ways. The most common misinterpretation is that these
sections are restrictions. They are not. They are exemptions to 12025. You cannot be charged with 12026.x, only 12025. When
you transport your firearms concealed (openly is legal) you must use one of the 12026.x exemptions.
The second common mistake is confusing or combining 12026.1 and 12026.2. 12026.1 simply states that 12025 does not apply
when transporting a handgun in a motor vehicle’s trunk, or in a locked container in or to/from a motor vehicle. There are no
location or deviation restrictions in 12026.1. 12026.2 is another (separate) list of exemptions to 12025, all but one of which
(motion picture) are transporting exemptions. Unlike 12026.1, 12026.2 is not specific to motor vehicles. It can therefore be
applied to all other forms of transportation, e.g., walking, bicycling, public transportation. Unlike 12026.1, 12026.2 does limit the
transport exemptions from any unnecessary deviations.
Another common misconception is the belief that ammunition cannot be stored in the same case as a firearm, or that it must be
locked up separately somehow. This is not true. There is no code to support this myth. See the second page of this flyer for
more information about loaded firearms.

Note: PC 12025 and 12026 apply only to concealed handguns. There are no restrictions on carrying rifles or shotguns in
these sections. They can be transported unlocked, openly or concealed. However 12031 and other restrictions do apply.
http://www.californiaopencarry.org/CaliforniaOpenCarry.pdf

Librarian
11-22-2008, 12:47 PM
Is there any case law that clarifies the meaning of "secure" (modifies container)?

No.

I proposed the "ten-year-old" rule here (http://www.calguns.net/calgunforum/showpost.php?p=1711983&postcount=22).

fairfaxjim
11-22-2008, 1:11 PM
Is there any case law that clarifies the meaning of "secure" (modifies container)?

I would say if the LEO had to have my key or combo to open it without using a tool (knife, screwdriver, hammer, 9mm) to open it, your attorney could prove it was secure. :)

Cbr1000Rider
12-17-2009, 2:21 PM
So say I wanted to show my neighbor my new gun... yet if I did not own a car and he lived next door... 12026.2 does not allow for me walking to his house. Or if I lived in a gun free school zone, I definitely would not be able to. I would have to buy a car and drive over 20 feet to his private property right?

So basicaly I can't walk around anywhere I want with LUCC. It has to be directly to or from my vehicle. A vehicle I may not own. Discriminatory??

Theseus
12-17-2009, 2:42 PM
I don't believe that 12026.1 requires both conditions 1 and 2 to be true, but a either/or.

Otherwise, it could be argued that with OC you would not be legal to simply put the handgun in a locked container when in your car if you find yourself approaching a school zone.

Cbr1000Rider
12-17-2009, 2:59 PM
I don't believe that 12026.1 requires both conditions 1 and 2 to be true, but a either/or.

Otherwise, it could be argued that with OC you would not be legal to simply put the handgun in a locked container when in your car if you find yourself approaching a school zone.

Correct. Sorry I should have clarified what I meant. 12026.1 doesn't allow any way to carry a LUCC with out a vehicle, so 12026.2 provides exemptions where you do not need a vehicle... and it nor 626.9 provides a citizen without a car a legal way to walk over his gun from his house to his neighbors house in a locked container. You must drive your car from your private property to his. If you can't afford a car, you have no option. 12026.1 states you must travel directly to or from your vehicle... I even called the State Attorney Generals Firearm Bureau today and they had no answer for me.

Nor if a gun store was within 1000 feet of a school, you could not legally walk out that gun from that gun stores private property to your car in the public parking lot.

mej16489
12-17-2009, 3:25 PM
Correct. Sorry I should have clarified what I meant. 12026.1 doesn't allow any way to carry a LUCC with out a vehicle, so 12026.2 provides exemptions where you do not need a vehicle... and it nor 626.9 provides a citizen without a car a legal way to walk over his gun from his house to his neighbors house in a locked container. You must drive your car from your private property to his. If you can't afford a car, you have no option. 12026.1 states you must travel directly to or from your vehicle... I even called the State Attorney Generals Firearm Bureau today and they had no answer for me.

Nor if a gun store was within 1000 feet of a school, you could not legally walk out that gun from that gun stores private property to your car in the public parking lot.

626.9 and 12026.2 have no requirement that a motor vehicle be involved, only 12026.1.

Cbr1000Rider
12-17-2009, 3:26 PM
626.9 and 12026.2 have no requirement that a motor vehicle be involved, only 12026.1.


Yes exactly my point!

One can not perform my scenerio above due to these laws. It is discrimination.

Even their website does not show how to travel with a LUCC handgun without a car... Call and ask and they have no answer. My above scenerio is illegal.

http://www.ag.ca.gov/firearms/travel.php

Cokebottle
12-17-2009, 6:45 PM
Correct. Sorry I should have clarified what I meant. 12026.1 doesn't allow any way to carry a LUCC with out a vehicle, so 12026.2 provides exemptions where you do not need a vehicle... and it nor 626.9 provides a citizen without a car a legal way to walk over his gun from his house to his neighbors house in a locked container. You must drive your car from your private property to his.

Nor if a gun store was within 1000 feet of a school, you could not legally walk out that gun from that gun stores private property to your car in the public parking lot.
Yes and no... and this is the bone of contention in Theseus's case.
626.9 provides exemptions for a place of residence, place of business, and private property. It is specific... more specific than many laws... yet Theseus was prosecuted for UOC on such private property.

The gun shop parking lot, and your and your neighbor's front yards, are all private property. Public access does not make it public property.
You would not be able to carry your gun down the city-owned sidewalk in a school zone, but you SHOULD be exempt in your and your neighbor's front yards. Theoretically, you could cross front yards to your neighbor 5 houses down without a violation, provided none of the owners of the houses in between ask you not to do it.