Legality of a 'loaded weapon check' if you acknowledge it is in fact loaded

[AJAX22]

If you have an LEO encounter while open carrying in an unincorporated area and you have a loaded handgun carried in an exposed belt holster and you acknowledge that it is in fact loaded does that remove the legal authority for the officer to physically remove the firearm from your possession absent probable cause.

I believe that absent probable cause, if there is no possibility of a crime being committed there should be no pretext for a search/ removal of property.

I believe officer safety only applies to an encounter if they have a reason to stop you in the first place. If you acknowledge that it is in fact loaded, and you are in a place where it is legal to do so what probable cause do they have to detain you?


Just a thought I had between classes

[InvictusManeo]

Interesting question. I see nothing that could possibly justify the check, but I also don't see complaints against the cop sticking.

I look forward to more informed opinions. :lurk5:

[AaronHorrocks]

You mean like on private property? What are the police doing there?

[bigcalidave]

No he means open country. I'd assume, as would the officer, that it's loaded. Once you tell him it's loaded, they don't need to check if it's loaded. Assuming you aren't being a criminal, and giving them another reason to detain you, I would think they aren't even gonna stop to talk to you. If you ARE being bad, or suspected of, I'd assume that they will ask to remove it from your holster and put it down somewhere not in your hands, until you are done with the contact.

[AaronHorrocks]

It's Private Property, or Public Property. There isn't much public property left. I guess he means National Forest? A State Park? If you're just "out in the country" chances are someone owns it.

[Decoligny]

If you are in unincorporated territory, and it is not an area where dischage of a firearm is illegal, then 12031e does not apply. You don't even have to answer the officers question about whether it is loaded or not.

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

These are the ONLY 2 places where 12031(e) applies.

[lorax3]

It would seem that unless you are in a prohibited part of an unincorporated county, then 12031(e) would not extend itself to an officer.

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

12031 (f) As used in this section, "prohibited area" means any place
where it is unlawful to discharge a weapon.

[Untamed1972]

How does one know if they are in a prohibited portion of unincorporated territory? Is that something the sheriff/county decides, or is it defined by statute?

[bigcalidave]

Lol. Good luck! It's california! Nobody knows!

[Decoligny]

How does one know if they are in a prohibited portion of unincorporated territory? Is that something the sheriff/county decides, or is it defined by statute?

(f) As used in this section, "prohibited area" means any place
where it is unlawful to discharge a weapon.

This is where it gets complicated. You have to research the county ordinances.

In Kern County, the only places where discharge of a firearm is prohibited is in County Parks.

In LA County, the list is much longer and has many specifically defined areas where it is illegal to discharge a firearm.

So, you need to research, research, and research the county ordinances.

[1911su16b870]

The officer safety issue is totally different than the loaded open carry/12031(e) one.

Depending on the circumstances of the call/encounter will relegate how the officer handles it.

If you are a "suspicious person" with a firearm in an area where you are allowed to have a loaded open carried firearm, based on the officer's training, experience and mindset, he/she can remove the firearm from the person during the investigation due to officer safety concerns, and if there is no crime, they will return it after the encounter is completed.

[Glock22Fan]

In LA County, the list is much longer and has many specifically defined areas where it is illegal to discharge a firearm.

In L.A. County, it is probably safest to assume that the only places you can lawfully discharge a firearm for sport are officially recognized target ranges and places where hunting is legal.

[AJAX22]

The officer safety issue is totally different than the loaded open carry/12031(e) one.

Depending on the circumstances of the call/encounter will relegate how the officer handles it.

If you are a "suspicious person" with a firearm in an area where you are allowed to have a loaded open carried firearm, based on the officer's training, experience and mindset, he/she can remove the firearm from the person during the investigation due to officer safety concerns, and if there is no crime, they will return it after the encounter is completed.

So what grounds would they have for initiating the encounter?

I don't believe there is a blanket excuse to stop and question anyone who has a gun (possession of a firearm is NOT suspicious in and of itself). And absent probable cause if the officer initiated an encounter I do not believe they would have any legal authority/grounds to remove the firearm from your person.

basically what I want to know is (since having a gun is legal) what are they 'investigating'?

[demnogis]

So what grounds would they have for initiating the encounter? Exactly! Possession of a firearm is in itself not suspicious behavior!

The situation in question is purely hypothetical. What a LEO should do is say "have a nice day" if nothing illegal is going on (I doubt anything would be). What their training, instincts and experience tells them to do is wholly different, though...

I don't believe there is a blanket excuse to stop and question anyone who has a gun (possession of a firearm is NOT suspicious in and of itself). And absent probable cause if the officer initiated an encounter I do not believe they would have any legal authority/grounds to remove the firearm from your person. California does not have any "Stop and Identify" Statute. The only reason I could imagine an officer would take possession of your firearm is for "officer safety". But, wouldn't they also need probable cause or RAS (reasonable, articulate suspicion) to detain you and take your property?

basically what I want to know is (since having a gun is legal) what are they 'investigating'? Therein lies the ultimate question...

[1911su16b870]

I just wanted to point out officer safety is a different issue than the PC 12031(e) section firearm status check.

It was a hypothetical ? and I attempted to answer hypothetically :eek:

Each situation is unique and different, if the suspicious call came in "I saw a man with a gun" and it is legal for someone in that area to have a firearm, I hope dispatch would simply advise the RP that there is no crime, and to call back if a crime is observed.

[N6ATF]

If you have an LEO encounter while open carrying in an unincorporated area and you have a loaded handgun carried in an exposed belt holster and you acknowledge that it is in fact loaded does that remove the legal authority for the officer to physically remove the firearm from your possession absent probable cause.

I believe that absent probable cause, if there is no possibility of a crime being committed there should be no pretext for a search/ removal of property.

I believe officer safety only applies to an encounter if they have a reason to stop you in the first place. If you acknowledge that it is in fact loaded, and you are in a place where it is legal to do so what probable cause do they have to detain you?


Just a thought I had between classes

Remember, this is anti-Sparta! They will take our guns for no legally acceptable reason whatsoever (harassment of those who dare to defend themselves is THE reason), and most of the time will suffer little to no consequences for doing so.

[Barbarossa]

Castro Valley CA is unincorporated, who decides if it is a prohibited area?