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hoffmang
12-17-2008, 6:55 PM
This is why we all of us should hope that criminals don't raise Second Amendment challenges.

People v. Yarbrough (http://www.courtinfo.ca.gov/opinions/documents/A120721.PDF)

That's a California Appeals Court decision out of Oakland that says that Heller doesn't defend you from carrying concealed in the driveway of a house you don't own. The court is duplicitously wrong on Heller but they got their chance to beat up on defense counsel for raising the Second Amendment in a pretty standard criminal matter.

We'll get this mooted by simply pointing out in a civil case with a clean plaintiff that there is no way to bear a loaded gun in California - a point that the court conveniently ignores - but it does mean that those of us in the bay area need to be careful about concealed carrying in our own driveways until a future Federal case.

-Gene

nobody_special
12-17-2008, 8:36 PM
We'll get this mooted by simply pointing out in a civil case with a clean plaintiff that there is no way to bear a loaded gun in California - a point that the court conveniently ignores - but it does mean that those of us in the bay area need to be careful about concealed carrying in our own driveways until a future Federal case.

There are some significant aspects to this case which may be difficult to moot; however, it's not clear that this case would impact bearing a weapon on your own driveway. The analysis of "public place" does suggest, however, that a fence or other barrier may be necessary.

I read the decision, I think this is not good. I'd be comfortable with this decision if it merely stated that Heller recognizes the right to regulate concealed carry in a public place. But it goes beyond that:
Without considering either defendant’s standing to raise an overbreadth challenge or the reach of the Second Amendment to laws enacted by the states (United States v. Cruikshank, supra, 92 U.S. 542, 553; Fresno Rifle & Pistol Club, Inc. v. Van De Kamp (9th Cir. 1992) 965 F.2d 723, 729; In re Rameriz (1924) 193 Cal. 633, 651 [226 P. 914]), we find nothing in Penal Code section 12025, subdivision (a), that violates the limited right of the individual established in Heller to possess and carry weapons in case of confrontation. Section 12025, subdivision (a), does not broadly prohibit or even regulate the possession of a gun in the home for lawful purposes of confrontation or self-defense, as did the law declared constitutionally infirmed in Heller. Rather, section 12025, subdivision (a), in much more limited fashion, specifically defines as unlawful carrying concealed within a vehicle or “concealed upon his or her person any pistol, revolver, or other firearm capable of being concealed upon the person.”5 Further, carrying a firearm concealed on the person or in a vehicle in violation of section 12025, subdivision (a), is not in the nature of a common use of a gun for lawful purposes which the court declared to be protected by the Second Amendment in Heller. (See People v. Wasley (1966) 245 Cal.App.2d 383, 386 [53 Cal.Rptr. 877].) Unlike possession of a gun for protection within a residence, carrying a concealed firearm presents a recognized “threat to public order,” and is “ ‘prohibited as a means of preventing physical harm to persons other than the offender.’ [Citation.]” (People v. Hale (1974) 43 Cal.App.3d 353, 356 [17 Cal.Rptr. 697].)6 A person who carries a concealed firearm on his person or in a vehicle, “which permits him immediate access to the firearm but impedes others from detecting its presence, poses an ‘imminent threat to public safety . . . .’ [Citation.]” (People v. Hodges, supra, 70 Cal.App.4th 1348, 1357.) Treating as criminal defendant’s concealment of a firearm under his clothing on a residential driveway that was not closed off from the public and was populated with temporary occupants falls within the “historical tradition” of prohibiting the carrying of dangerous weapons in publicly sensitive places. (Heller, supra, 171 L.Ed.2d 637, 678.)
(Emphasis added.)
This is dangerous reasoning. Here, the judge is accepting that the "sensitive places" mentioned in Heller (courthouses etc.) may include any public place. That implies that the 2nd amendment can be effectively limited to one's home, and could virtually rule out any right to bear. He's reading Heller as if it only applies in the home.
Found violative of the Second Amendment in Heller was a law that imposed an “absolute prohibition of handguns held and used for self-defense in the home,” but the court endorsed traditional regulations restricting firearm possession that are designed to promote and maintain public safety on government property or in publicly sensitive areas.
More of the same...

Gray Peterson
12-17-2008, 9:22 PM
Well, considering this is just a California Appellate court, in terms of the "Plan" using federal courts, this thing means "Jack" and "@#$^".

CCWFacts
12-17-2008, 9:44 PM
I'm so glad we have a bunch of aggressive lawyers pushing clean civil cases for these rights. If we didn't have that, and if we hadn't gotten Heller exactly when we did, we would eventually have had all these questions tested by criminal defendants, and we would all be sad.

I know that the NRA was initially opposed to Heller, feeling it was too risky. But if it hadn't happened, it would be a matter of time before we had a drug-dealer-with-an-AK-and-a-PD representing us to various courts, including the Supreme Court.

We're very lucky things all worked out the way they did with that, and that various legal teams are vigorously pursuing good civil cases to hash out the rest of it.

hoffmang
12-17-2008, 10:59 PM
I agree that the facts of this situation are generally distinguishable from CCWing in your own driveway, but the logic in this case makes it look like a DA can make a strong argument that your own driveway is a public place and therefor may very well also limit the actual homeowner from CCWing in his driveway or front yard without a fence or gate.

-Gene

nobody_special
12-18-2008, 12:55 AM
Yes, that's my take on it too.

artherd
12-18-2008, 1:06 AM
This is bad - because it can be combined with other persuasive bad case law that says 'load gun in public area of private property = illegal ccw'.

The logic (and indeed most existing law) does not distinguish on ownership of public areas of private property.

Mulay El Raisuli
12-18-2008, 4:56 AM
Well, considering this is just a California Appellate court, in terms of the "Plan" using federal courts, this thing means "Jack" and "@#$^".


Agree. Also, the court pointed out that HELLER hasn't been incorporated yet.

Also, I see nothing here that contradicts my assertion a criminal defense could lead to a solid definition of the RKBA. IE; there's nothing here that shows the Ruling was because of the defendant, rather than the court overreaching because of the issue presented.

The Raisuli

nobody_special
12-18-2008, 11:32 AM
Also, the court pointed out that HELLER hasn't been incorporated yet.
True, but the judge ruled that PC12025 would be constitutional even if Heller were incorporated. Because of that, he didn't have to tackle incorporation at all.

tombinghamthegreat
12-18-2008, 4:53 PM
I got an email about this, was this somewhat expected for a CA court and could this hurt our plan for incorporation?

Shotgun Man
12-18-2008, 5:06 PM
It is what it is.

I understand Gene's point, but keep in mind the appellate attorney for the criminal defendant has only the client before him. He cannot be swayed by the concerns of the 2A community.

This case warns us of the need to be lined up with sympathetic civil plaintiffs before all the "scumbag" criminal defendants go to court.

hoffmang
12-18-2008, 5:31 PM
I got an email about this, was this somewhat expected for a CA court and could this hurt our plan for incorporation?

It is unlikely to effect incorporation.

-Gene

Mulay El Raisuli
12-19-2008, 6:13 AM
It is what it is.

I understand Gene's point, but keep in mind the appellate attorney for the criminal defendant has only the client before him. He cannot be swayed by the concerns of the 2A community.

This case warns us of the need to be lined up with sympathetic civil plaintiffs before all the "scumbag" criminal defendants go to court.


That would be nice. The reality however is that Yarbrough is already on his way through the system. Also, being a criminal case, he has priority over civil cases. So, there's just no way in hell that we can present "sympathetic civil plaintiffs" BEFORE he gets to the state Supreme Court. "Hoping" that scumbags wouldn't do this has proven to be false. Has only left us with bad law. Better, IMHO, would have been to make contact with his lawyer & educate her better so that she could have made a decent argument.

We are not w/o hope though. Hopefully, we have a defense ready to go in Federal Court. Maybe there's a "sympathetic civil plaintiff" ready to present at that level?

The Raisuli

M1A Rifleman
12-19-2008, 7:18 AM
I think existing law is pretty clear that privately owned property - with or without fencing IS NOT a public place.

Lex Arma
12-19-2008, 7:30 AM
It is what it is.

I understand Gene's point, but keep in mind the appellate attorney for the criminal defendant has only the client before him. He cannot be swayed by the concerns of the 2A community.

This case warns us of the need to be lined up with sympathetic civil plaintiffs before all the "scumbag" criminal defendants go to court.

Agreed, but Yarbrough's appellate counsel could have consulted with those of us in the 2A litigation community who have appellate experience. The better remedy, instead of throwing Heller at the wall to see if it would stick in an appeal, may have been to ask for a new trial, with new jury instructions based on handgun possession on private property in light of the Heller decision.

Anonymous Coward
12-19-2008, 7:59 AM
I think existing law is pretty clear that privately owned property - with or without fencing IS NOT a public place.

This does not seem to be the case. Page 13-16 makes an interesting read.

What's different from somebody carrying on his front lawn is that this person was on somebody elses property and he did not know the owner and did not have permission to be there.