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Phil3
05-21-2009, 9:32 PM
Need an opinion on what is legal and what is not for the following situation.

A neighborhood homeowner association has a common area, where the pool, tennis courts, picnic area, etc., are found. This area is not public in the general sense, since it is for the development residents only and can be accessed by key only (issued to the residents). Is it legal then for an homeowner belonging to the homeowner association (HOA), or the president of the HOA (an owner himself) to open carry a loaded firearm on this property? Unloaded firearm? Or unloaded with ammo or clip at the ready? This assuming no other HOA bylaws or city ordinances are violated.

- Phil

CSDGuy
05-21-2009, 9:40 PM
Need an opinion on what is legal and what is not for the following situation.

A neighborhood homeowner association has a common area, where the pool, tennis courts, picnic area, etc., are found. This area is not public in the general sense, since it is for the development residents only and can be accessed by key only (issued to the residents). Is it legal then for an homeowner belonging to the homeowner association (HOA), or the president of the HOA (an owner himself) to open carry a loaded firearm on this property? Unloaded firearm? Or unloaded with ammo or clip at the ready? This assuming no other HOA bylaws or city ordinances are violated.

- PhilProbably not legal to LOC or even LCCW on that property. Although you may be a member of the association, you the individual do not have control over that property. Even the HOA President does not have control over the property nor does the Board. The reason I say this is because there's generally a way for the HOA members to challenge/change/amend/remove HOA CC&R's and Rules in a way that circumvents the HOA Board. In short, it's essentially public but the pool of the public consists of the residents and not the "general public".

Now if the development happens to be in an unincorporated area that isn't designated a "no discharge" area (shooting prohibited) and there are no rules to the contrary (HOA rule violation, not a penal code problem) you'd be fine...

Confusing, isn't it?

Phil3
05-21-2009, 10:08 PM
Feel somewhat foolish for asking, but what is LOC and LCCW? CCW is Concealed Weapon Carry, and OC is Open Carry, but the "L"?

- Phil

Chatterbox
05-21-2009, 10:10 PM
"Loaded", I believe.

pullnshoot25
05-21-2009, 10:43 PM
That or "Locked"

hkusp9c
05-21-2009, 10:48 PM
how many units in your condo? Do you know each and every one of them and pretty close to them? What if someone from your condo who doesn't know you or felt "threatened" by the mere presence of a gun just call 911 and tell'em there's somebody with a gun inside the condo building?
I too live in a condo and I pretty much know everyone who lives in our condo (not that many units). we've had a few break ins to our cars in the garage and one of the cars were actually got stolen and last time my car was broken into two nights in a row. I was really pissed off of course and I asked the same question "if it's legal to carry in a common area without a CCW" to this forum. Most of the members told me to just "Observe and report" ie. call 911. Once you are outside of your unit. It's not your private property anymore. So from then on, I decided that every time my two way paging alarm is triggered 3 or 4 in the morning, I'm just gonna call 911 and have them handle it EVERY TIME it goes off SINCE I CAN ONLY OBSERVE AND REPORT.

hoffmang
05-21-2009, 10:56 PM
I can't recall the case right off, but a similar situation where the person was actually a landlord ruled against him for violating 12031.

-Gene

Liberty1
05-21-2009, 11:25 PM
I can't recall the case right off, but a similar situation where the person was actually a landlord ruled against him for violating 12031.

-Gene

Overturf (http://www.calccw.com/Forums/legal/539-people-v-overturf-carrying-private-property-outdoors.html) was outside his building in a "public place" and the logic the judge uses to dismiss the exemptions and self defense claims is twisted (but then Overturf did call attention to himself by firing a "warning shot" into the dirt).

I think that the OP would actually be OK loaded in the non-public controlled access communal space and since he is in lawful possession of the property as a co-owner (with right to use the communal area) I think concealed/exposed would be OK too (I'd say go CC in this case). Consult with an attorney as my advice has gotten several UOCers arrested with fewer charged and none (soooo far) convicted :thumbsup:

E Pluribus Unum
05-21-2009, 11:28 PM
I can't recall the case right off, but a similar situation where the person was actually a landlord ruled against him for violating 12031.

-Gene

I think the key here is it requires a key for entry. If it requires a key... it's not open to the public.

CSDGuy
05-21-2009, 11:57 PM
Yeah... I invented a new term... LCCW=Loaded CCW... ;)

I think the key here is it requires a key for entry. If it requires a key... it's not open to the public.Not entirely correct. It's not the key that makes something open to the public, it's who controls the property...

In any event, if Overturf hadn't been on publicly accessible property, he wouldn't have violated 12031... If it was after hours, the area was fenced in and gates locked, nobody was supposed to be around... and then the events unfolded the way they did, he'd have been ok. He would have taken his business that is normally open to the public during business hours and closed it up so that the public couldn't access the area after business hours. IIRC, his business property wasn't set up that way... In the case of a gated community, while the residents may collectively own the entire property inside the gates (except for the houses) no one single resident controls the entire property nor can a single resident throw a guest of another resident off the property.

That is why I maintain that the area behind the gate is still a "public" area. You may have an interest in the property, but you do not yourself control it. Even the BOD doesn't entirely control it either as they can not bar someone who owns property inside the community from going to their property.

Now if you have the authority to unilaterally remove someone from your property and the area is access controlled, then yes, you should be able to carry your pistol in any manner you see fit. It would be exactly like your fenced-in backyard.

CSDGuy
05-22-2009, 12:02 AM
how many units in your condo? Do you know each and every one of them and pretty close to them? What if someone from your condo who doesn't know you or felt "threatened" by the mere presence of a gun just call 911 and tell'em there's somebody with a gun inside the condo building?
I too live in a condo and I pretty much know everyone who lives in our condo (not that many units). we've had a few break ins to our cars in the garage and one of the cars were actually got stolen and last time my car was broken into two nights in a row. I was really pissed off of course and I asked the same question "if it's legal to carry in a common area without a CCW" to this forum. Most of the members told me to just "Observe and report" ie. call 911. Once you are outside of your unit. It's not your private property anymore. So from then on, I decided that every time my two way paging alarm is triggered 3 or 4 in the morning, I'm just gonna call 911 and have them handle it EVERY TIME it goes off SINCE I CAN ONLY OBSERVE AND REPORT.
It's not so much that all you can do is "observe & report", it's that it is the safest thing for you to do. Since the common area is not YOUR private property, you can not CCW without the license to do so nor can you carry loaded unless you're in an unincorporated area that is not an area where shooting is prohibited. You most certainly can investigate and if you witness someone actually committing a misdemeanor or you know that a felony has been committed and that a particular person or persons committed said felony... yeah, you can do a citizen's arrest. Then you open yourself up to false arrest/imprisonment and whatever else civil suit, assuming that the arrest itself is legal.

I don't necessarily agree with this, but that is what it is for now...

Liberty1
05-22-2009, 12:05 AM
Yeah... I invented a new term... LCCW=Loaded CCW... ;)


LCSLTC (loaded concealed sans license to carry) :p

Liberty1
05-22-2009, 12:09 AM
Since the common area is not YOUR private property, you can not CCW without the license to do so nor can you carry loaded unless you're in an unincorporated area that is not an area where shooting is prohibited.

I might agree with no concealed carry based on your argument but still disargree with the locked limited access area being a "public place" open to the public so 12031 would not then apply IMO IANAL ;).

CSDGuy
05-22-2009, 12:09 AM
LCSLTC (loaded concealed sans license to carry) :p
Hey, I like that one!!!! :thumbsup:

CSDGuy
05-22-2009, 12:12 AM
I might agree with no concealed carry based on your argument but still disargree with the locked limited access area being a "public place" open to the public so 12031 would not then apply IMO IANAL ;).
IANAL either... but still, the point is that the common area is open to your neighbors and you can not exclude them or their guests. Therefore it's "public" property for purposes of violating 12031.

I don't necessarily agree with it, but it is what it is.

Liberty1
05-22-2009, 12:12 AM
Hey, I like that one!!!! :thumbsup:

I know what CCW means to the national and CA discussion of hidden arms carry but specifically CCW in the PC is the endorsement on a retired officers ID card pursuant to section 12027. For most in Ca it's a 12050 License To Carry but that is just my pet issue. :sleeping:

CSDGuy
05-22-2009, 12:15 AM
I know what CCW means to the national and CA discussion of hidden arms carry but specifically CCW in the PC is the endorsement on a retired officers ID card pursuant to section 12027. For most in Ca it's a 12050 License To Carry but that is just my pet issue. :sleeping:
In a county > 200,000 residents, a license issued pursuant to 12050 is: "A license to carry concealed a pistol, revolver, or other firearm capable of being concealed upon the person." OR a LTCC. License to Carry Concealed.

Liberty1
05-22-2009, 12:17 AM
IANAL either... but still, the point is that the common area is open to your neighbors and you can not exclude them or their guests. Therefore it's "public" property for purposes of violating 12031.

I don't necessarily agree with it, but it is what it is.

I am not voting for you for judge...:eek:

My dept recently did not hit a parolee felon in possession with the additional charge of 12031 because he was found in a back yard which we did not consider to be a "public place" even though access was not restricted down the driveway. Oh well he went on a 3056 parole violation and open charges anyway...I'll have to call the DDA and see if it was add charged...although who really cares about 12031 when 12023 and felon in possession of ammo are added...

In a county > 200,000 residents, a license issued pursuant to 12050 is: "A license to carry concealed a pistol, revolver, or other firearm capable of being concealed upon the person." OR a LTCC. License to Carry Concealed.

Oh boy, LCSLTCC is too much for this open carry snob...

CSDGuy
05-22-2009, 12:21 AM
I am not voting for you for judge...:eek:

My dept recently did not hit a parolee felon in possession with the additional charge of 12031 because he was found in a back yard which we did not consider to be a "public place" even though access was not restricted down the driveway. Oh well he went on a 3056 parole violation and open charges anyway...I'll have to call the DDA and see if it was add charged...
That's good because I'm not running for office... and if the backyard wasn't closed off and couldn't be without constructing a gate or a fence, that charge might make a come-back. If there was a fence/gate... and it happened to be open, the 12031 might have a difficult time... but I imagine your department made a good call on that one. Hopefully, the DDA sees it the same way.

IMHO, Overturf and whatever other case law controlling public places and Loaded Carry needs to be overturned... and make it clear that privately owned property, regardless of whether or not it's publicly accessible, is completely kosher to carry loaded on property you control or you have permission from the owner to carry loaded there.

MP301
05-22-2009, 12:38 AM
Remember the important part. Legal or not, is it wise? I dont want to debate any "excersise my rights" views we may have on this issue. The reality is that if you show up at the pool where mrs busybody and her seven kids are, you will have issues.

Other then the school zone problem, unloaded open carry is probably legal there. Should you do it? Probably not because of the resulting possible chicken dance at gunpoint,arrest, gun confiscation and attorny's fees. Probably wouldnt be convicted, but....

As far as CCW, the legalities are more murky. Sure, your part owner and this area may not be accessible to the general public. but certainly the police, should they be called, will not see it that way. And the DA prosecuting probaly wont either. The general mentality is GUN + NOT IN YOUR HOUSE= BAD! Right or wrong.

Other considerations. Sure, you should be able to take your gun almost anywhere IMO. But until general perceptions change.....

My pro gun position will never override any potential threat to my family and it shouldnt. Put the shoe on the other foot - what would your reaction be if you went down to the common area at your HOA with your wife and kids and some guy you dont know was hangin out by the pool with a gun?

Pro gun or not, my automatic reaction would be that my family is potetially in danger until I know this guy is not an idiot, criminal or whatever. Its not necessarily fear in this situation especially because your in a semi private area that you assume its safe, and this is a NEW and DIFFERENT twist.

How I would deal with this, unlike your typical person that sees a gun, would be by striking up a non confrontational conversation to detemine what I was dealing with. If you didnt seem to be a criminal, seemed to have a good head on your shoulders, gun was in a holster under your control (especially if there is an added bonus that it was unloaded), you were a resident...all would probably be well. Probably have some good conversation and be new friends too.

Most people, however, seem to just freak out and call the cops. When that happens, bad things follow.

So, if you really must do this I would say open carry is out in this situation because everyone doesnt know each other.

CCW would be a better choice with less chance of being noticed, (out of sight, out of mind), but there is a greater potential for arrest, etc for a criminal act if the police arrive and they view the situation as in public and dont differentiate between limited public access and general pubic access...and they most likely wont. This also applies to the "loaded gun in public" if viewed in the same light, either CCW or LOC.

So, there you have it.. I would do more research on the private access area, etc. before you proceed. Unless, you have 10 grand layin around and have no sentimental attachment to your gun...

My 2 Cents

1923mack
05-22-2009, 7:50 AM
Interesting discussions. If someone was living in a condo and was to investigate some noise or prowler issue in the complex, does one go loaded open carry or loaded concealed carry or go unarmed, while investigating? As usuall laws are so convoluted it is difficult for individual to know what is legal and what is not. Common sense says ok for the homeowner to have a loaded gun while investigating, as these post shows, many interpretations of weather this is legal or not. Previous cases will all have slightly different circumstances (gates, locks, signs etal).

MP301
05-22-2009, 8:04 AM
Interesting discussions. If someone was living in a condo and was to investigate some noise or prowler issue in the complex, does one go loaded open carry or loaded concealed carry or go unarmed, while investigating? As usuall laws are so convoluted it is difficult for individual to know what is legal and what is not. Common sense says ok for the homeowner to have a loaded gun while investigating, as these post shows, many interpretations of weather this is legal or not. Previous cases will all have slightly different circumstances (gates, locks, signs etal).


Well, in a populated environment like a condo setting, running around the property armed can be exceedingly dangerous....resident hears the same noise and looks out and sees you with a firestick...cops get prowler/man with a gun/baby killin nazi call.... The risk far outweighs the gain of catching some guy boosting a stereo...

Something more like hearing someone scream from the parking lot, in my opinion, might make the gain outweigh the risk. Like you said...so many variables...so many possibilities.

I personally think we should all take responsibility for what goes on around us, but I also believe that you shouldnt do it blindly...common sense should always prevail. Bad things can still happen with good intentions...

Theseus
05-22-2009, 8:11 AM
IMHO, generally walking around loaded is not legal or a good idea.

With that said, if you are investigating something surrounded in suspicious circumstances, then you probably have a good legal case for why you were loaded.

12031 allows for loading when you are conducting a citizens arrest, and when you fear for damage to your person or property.

BUT, the powers that be might still make issue with it and it may not prevent you from being charged/convicted.

E Pluribus Unum
05-22-2009, 8:36 AM
BUT, the powers that be might still make issue with it and it may not prevent you from being charged/convicted.

How would you know?

;)

Crazed_SS
05-22-2009, 8:42 AM
Common sense says ok for the homeowner to have a loaded gun while investigating, as these post shows, many interpretations of weather this is legal or not. Previous cases will all have slightly different circumstances (gates, locks, signs etal).

Common sense says call the police.

hkusp9c
05-22-2009, 10:40 AM
Common sense says call the police.

yeah but would they still come even if I told them my car's two way paging alarm went off in the middle of the night? And the car's parked three floors down in my garage?

Last time, when my alarm went off at night.I actually went down with the HOA president to find out that several cars were broken into. We called the police. They never came. They only took the reports over the phone. And they told us to bring our cars IF we want them get fingerprinted.

Phil3
05-22-2009, 2:58 PM
I am the OP, so let me clarify a few things. First, this is not a condo development, but a large housing development. More narrowly defined, what if a HOA board member entered the common property (locked and only accessible by residents who have been issued keys), at a time during which the area is closed (signs to that effect), for the purposes of investigating suspicious activity during closed hours? That is, unidentified people, who may or may not be residents, in the facility after closing hours. How would the HOA board member fare legally, if armed, open carry, loaded and unloaded in that circumstance? From the point of view of the HOA individual. it is wise to be prepared to face individuals venturing onto property there are not supposed to be on at this time (or ever if a non-resident without a resident host).

- Phil

Theseus
05-22-2009, 5:55 PM
This is still just as questionable. Would someone serving in this capacity need to get a "guard card" to be able to perform "security" duties on such a property?

It seems possible that it is questionable behavior to go around inspecting community property.

GuyW
05-22-2009, 7:20 PM
Need an opinion on what is legal and what is not for the following situation.

A neighborhood homeowner association has a common area, where the pool, tennis courts, picnic area, etc., are found. This area is not public in the general sense, since it is for the development residents only and can be accessed by key only (issued to the residents). Is it legal then for an homeowner belonging to the homeowner association (HOA), or the president of the HOA (an owner himself) to open carry a loaded firearm on this property? Unloaded firearm? Or unloaded with ammo or clip at the ready? This assuming no other HOA bylaws or city ordinances are violated.

- Phil

I'd say, only if the Board of Directors passes a resolution allowing open carry...
.

CSDGuy
05-22-2009, 8:48 PM
It's not exactly simple or easy. I'll tackle this one quote at a time.
I am the OP, so let me clarify a few things. First, this is not a condo development, but a large housing development. More narrowly defined, what if a HOA board member entered the common property (locked and only accessible by residents who have been issued keys), at a time during which the area is closed (signs to that effect), for the purposes of investigating suspicious activity during closed hours? That is, unidentified people, who may or may not be residents, in the facility after closing hours. How would the HOA board member fare legally, if armed, open carry, loaded and unloaded in that circumstance? From the point of view of the HOA individual. it is wise to be prepared to face individuals venturing onto property there are not supposed to be on at this time (or ever if a non-resident without a resident host).

- Phil
The fact that it's still common property of the HOA means that as far as 12031 is concerned, it's the same as if you were just outside the fence line of the development. The HOA President or Board Member would have to know if he is in a place where LOC or UOC is legal outside the fenceline.
This is still just as questionable. Would someone serving in this capacity need to get a "guard card" to be able to perform "security" duties on such a property?

It seems possible that it is questionable behavior to go around inspecting community property.
In that instance, the HOA guy would likely be functioning as a security guard. The HOA would have to be a PPO and he'd have to have the guard card/gun permit if he'd be armed while doing that activity. If he's not armed, no need for the cards... The BSIS would simply consider him as an HOA member walking around on HOA property, especially if he's also a resident... At worst, he might be considered a proprietary guard if he's a non-resident employee. Regardless, he would, however, be able to ask the people to leave the property. They can, however, also tell him to go pound sand until he actually arrests them. A HOA is not a merchant, so the HOA guy can NOT detain them at all.
I'd say, only if the Board of Directors passes a resolution allowing open carry...
.If the HOA is within a no shooting zone that is set by ordnance, their resolution will have no impact. All it will mean is that the act of open carrying will not be a violation of the HOA rules. It might, however, make the other residents feel "better" about their HOA Board members open carrying... because there would be a rule saying it's ok on the property...

Clear as mud?

CSDGuy
05-22-2009, 8:52 PM
If the property happens to straddle a shoot ok/shoot not ok line, you'd have to be aware of what side of the line you're on... for that would depend upon whether or not you can LOC or UOC legally.

CSDGuy
05-22-2009, 8:58 PM
Now there is a way around all that hassle... but it creates another hassle... and potentially, a headache for the residents. It also brings with it a whole different set of issues that can be quite uncomfortable too.

GuyW
05-23-2009, 11:48 AM
If the HOA is within a no shooting zone that is set by ordnance, their resolution will have no impact. All it will mean is that the act of open carrying will not be a violation of the HOA rules.

Not true. The Resolution means that the individual posessess a gun on non-public access private property with the approval of the property owner, as specifically allowed in the PC.

.

CSDGuy
05-23-2009, 1:10 PM
Not true. The Resolution means that the individual posessess a gun on non-public access private property with the approval of the property owner, as specifically allowed in the PC.

.
That might be true ONLY if the HOA is the recorded deed holder of that entire property... They may "control" the property, but they might not actually "own" it. I can LOC or CCW in my backyard or my house because I own it and I control it and because there's a barrier in place (walls or fence) I can claim those areas are not publicly accessible. My backyard is not a common area with any other residences...

motorhead
05-24-2009, 12:03 PM
i think the gist is, if it isn't exclusively yours it's considered public for legal purposes.

GoodEyeSniper
05-24-2009, 12:29 PM
That might be true ONLY if the HOA is the recorded deed holder of that entire property... They may "control" the property, but they might not actually "own" it. I can LOC or CCW in my backyard or my house because I own it and I control it and because there's a barrier in place (walls or fence) I can claim those areas are not publicly accessible. My backyard is not a common area with any other residences...

Hmm, how does this fall to renters then? I just kindof assumed if you were renting a house, you had about the same rights, pertaining to arming yourself, as if you were the owner.

M. Sage
05-24-2009, 1:07 PM
I can't recall the case right off, but a similar situation where the person was actually a landlord ruled against him for violating 12031.

-Gene

I remember that one. Common area = public area.

CA_Libertarian
05-24-2009, 11:02 PM
I can't recall the case right off, but a similar situation where the person was actually a landlord ruled against him for violating 12031.

-Gene

Sounds like Overturf, but in that case he was in an unfenced yard, and the dumb **** fired a "warning" shot into the dirt.

Now, while I tend to think enclosed/locked = private place, I'm not sure I would bet my liberty on the judge/jury agreeing with that.

GuyW
05-25-2009, 10:53 AM
I remember that one. Common area = public area.

Not a "common area" - it wasn't a condominium, it was an apartment yard, owned by Overturf.

BTW, common areas in condominium associations are deeded to the HOAs.

.