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locosway
07-24-2009, 10:10 AM
Why does the law make a distinction between carrying and possessing a firearm?

This came from my recent reading of People v. Overturf where there was a clear distinction between actively carrying and simple possessing a firearm in ones business or private property. What I don't understand is why there is any difference if the gun is on your hip, in your boot, in your underwear, or sitting under a counter, or on the wall behind you.

I know people can't try to understand someone elses thinking, especially that of a law maker. But I was just wondering if people could come up with arguments for both sides of this. In order for me to understand the laws I like to know why they're there in the first place.

oldironpants
07-24-2009, 10:18 AM
Think about it through the restrictions of a convicted felon. A convicted felon may not possess a firearm. Although it may not be on his/her person at that moment, possession alludes to ownership, having on ones person, being in "control" of.

This is a far more definitive word than "carry." For you may not be allowed to "carry" because you don't have a CCW, but that does not preclude you from possessing a firearm.

Why does the law make a distinction between carrying and possessing a firearm?

This came from my recent reading of People v. Overturf where there was a clear distinction between actively carrying and simple possessing a firearm in ones business or private property. What I don't understand is why there is any difference if the gun is on your hip, in your boot, in your underwear, or sitting under a counter, or on the wall behind you.

I know people can't try to understand someone elses thinking, especially that of a law maker. But I was just wondering if people could come up with arguments for both sides of this. In order for me to understand the laws I like to know why they're there in the first place.

locosway
07-24-2009, 10:23 AM
So possession is akin to ownership?

If I carry a gun I don't own, aren't I in possession?

locosway
07-24-2009, 10:27 AM
Carrying equates to both having on you and possessing.

Ok, so why the difference in the case of a business owner? He can possess a loaded firearm, but not carry it within his business. Is there really a difference between where the firearm is? Two feet down on my hip, or two feet in front of me on the counter, what's the difference?

I guess I'm trying to understand the logic here. Was there an incident that cause harm from someone who was carrying that might have been averted if that person had only been in possession instead?

oldironpants
07-24-2009, 10:28 AM
So possession is akin to ownership?

If I carry a gun I don't own, aren't I in possession?Yes and no, control is a better word. If you area convicted felon and you have a firearm at home in the drawer, you would be in violation of "possessing," ("may not possess....") although not on the person.

The word "possess" if much farther reaching beyond just being on the person.

Glock22Fan
07-24-2009, 10:53 AM
The court was not concerned about whether Overturf had a legal right to possess a firearm (in the sense of owning one or having access to one). This was the case and, to my knowledge, not part of the judgement. What they said was it's OK to have a loaded gun in your residence, your place of business or on your property, but you cannot carry it around if your residence, business or property is a public place unless it is lawful for you to use it in some way, such as Reasonable Belief of Grave Danger.

This was a farily local decision (L.A. Court, IIRC), and I have heard attorneys say that it would not necessarily be upheld in fresh cases - especially if they went to appeal.

locosway
07-24-2009, 10:57 AM
The court was not concerned about whether Overturf had a legal right to possess a firearm (in the sense of owning one or having access to one). This was the case and, to my knowledge, not part of the judgement What they said was it's OK to have a loaded gun in your residence, your place of business or on your property, but you cannot carry it around if your residence, business or property is a public place unless it is lawful for you to use it in some way, such as Reasonable Belief of Grave Danger.

Right, which I understand. However what's the difference really? What's the difference if I'm sitting in a chair and there's a gun on my hip or under the counter?

I agree there is a difference between possessing and carrying, but why the difference in what someone can do on their property?

aplinker
07-24-2009, 11:15 AM
How does a business, residence or private property become public?

The court was not concerned about whether Overturf had a legal right to possess a firearm (in the sense of owning one or having access to one). This was the case and, to my knowledge, not part of the judgement. What they said was it's OK to have a loaded gun in your residence, your place of business or on your property, but you cannot carry it around if your residence, business or property is a public place unless it is lawful for you to use it in some way, such as Reasonable Belief of Grave Danger.

This was a farily local decision (L.A. Court, IIRC), and I have heard attorneys say that it would not necessarily be upheld in fresh cases - especially if they went to appeal.

8-Ball
07-24-2009, 11:17 AM
I just kick mine in front of me around the house...

Glock22Fan
07-24-2009, 11:22 AM
How does a business, residence or private property become public?

This has been discussed at length on this board. Basically, if your USPS driver can access your front door, your yard is a public place. The same, as Theseus found recently, for an open parking lot belonging to a business.

You can keep it private behind a fence with a locked gate. I would hope that business premises that are open less than 24 x 7 x 365 was a private place, but California judges are well known for making up crap that might make that wrong some time soon. I'm constantly expecting a judge to rule that my garage is a public place, because the previous owner ran a garage sale there once :(

And Locosway, you are looking for logic where none exists. The hotchpotch of laws entwine and operlap and leave gaps. Law makers don't read all the old ones to make sure that their new law is consistent and sensible (heck, Obama and the other members of his cohort expect Democrats to vote "Aye" on four thousand page documents having been given overnight, if that, to read them.) When even Obama admits he hasn't read the current flagship health bill, one wonders who really is running the country. A bunch of staffers?

locosway
07-24-2009, 11:26 AM
I agree there is no logic, I was simply seeing if someone could argue their side. If someone can then I'd like to see what possibly they could have thought that would make this sane.

Decoligny
07-24-2009, 11:26 AM
How does a business, residence or private property become public?

It has to do with the wording of 12031.

12031. (a) (1) A person is guilty of carrying a loaded firearm when
he or she carries a loaded firearm on his or her person or in a
vehicle while in any public place or on any public street in an
incorporated city or in any public place or on any public street in a
prohibited area of unincorporated territory.

The term "public place" does not indicate that it cannot be on private property. If an area is openly accessible to the general public, it is a "public place" even if it is private property. This would apply to someone having a loaded gun on their front lawn in an incorporated city. Unless the lawn is surrounded by a fence, and the fence has a gate that is secured by a lock, or posted with a "No Trespassing" sign, then any member of the public could reasonable walk across your lawn to retireve a misthrown baseball, or walk across your lawn to ring your doorbell to ask if you want to buy GirlScout cookies.

That is how "private property" becomes a "public place".

Decoligny
07-24-2009, 11:28 AM
This has been discussed at length on this board. Basically, if your USPS driver can access your front door, your yard is a public place. The same, as Theseus found recently, for an open parking lot belonging to a business.

Hopefully someone will come to their senses and READ 626.9. It has absolutely NO reference to "public place" like 12031 has, therefore, the private property exemption should apply on ALL private property, even if accessible to the general public.

You can keep it private behind a fence with a locked gate. I would hope that business premises that are open less than 24 x 7 x 365 was a private place, but California judges are well known for making up crap that might make that wrong some time soon.

And Locosway, you are looking for logic where none exists. The hotchpotch of laws entwine and operlap and leave gaps. Law makers don't read all the old ones to make sure that their new law is consistent and sensible (heck, Obama and the other members of his cohort expect Democrats to vote "Aye" on four thousand page documents having been given overnight, if that, to read them.) When even Obama admits he hasn't read the current flagship health bill, one wonders who really is running the country. A bunch of staffers?

...

MudCamper
07-24-2009, 11:40 AM
Trying to understand the logic behind Overturf will only result in insanity, as it is intentionally twisted logic. These were anti-gun judges twisting the words to uphold a conviction.

aplinker
07-24-2009, 11:47 AM
OH ok... I thought this was something else than the usual.

I had visions of "some types" of businesses now being considered public, or such. In other words, indoor businesses/residences now not OK to carry.

Thanks for clarifying.


It has to do with the wording of 12031.

12031. (a) (1) A person is guilty of carrying a loaded firearm when
he or she carries a loaded firearm on his or her person or in a
vehicle while in any public place or on any public street in an
incorporated city or in any public place or on any public street in a
prohibited area of unincorporated territory.

The term "public place" does not indicate that it cannot be on private property. If an area is openly accessible to the general public, it is a "public place" even if it is private property. This would apply to someone having a loaded gun on their front lawn in an incorporated city. Unless the lawn is surrounded by a fence, and the fence has a gate that is secured by a lock, or posted with a "No Trespassing" sign, then any member of the public could reasonable walk across your lawn to retireve a misthrown baseball, or walk across your lawn to ring your doorbell to ask if you want to buy GirlScout cookies.

That is how "private property" becomes a "public place".

Librarian
07-24-2009, 1:31 PM
Ok, so why the difference in the case of a business owner? He can possess a loaded firearm, but not carry it within his business. Is there really a difference between where the firearm is? Two feet down on my hip, or two feet in front of me on the counter, what's the difference?

I guess I'm trying to understand the logic here. Was there an incident that cause harm from someone who was carrying that might have been averted if that person had only been in possession instead?

In fact, Overturf caused a revision in 12026 to allow a business owner to carry - compare the code as quoted in Overturf to the code as it exists today (http://caselaw.lp.findlaw.com/cacodes/pen/12020-12040.html).

But the scrambling of 'public place' remains.

As I pointed out in the 'locked case' thread you started, trying to derive some logical basis for gun control laws only leads to frustration, because the motivation is not 'safety', as any reasonable person might expect, but 'political'.

locosway
07-24-2009, 1:37 PM
In fact, Overturf caused a revision in 12026 to allow a business owner to carry - compare the code as quoted in Overturf to the code as it exists today (http://caselaw.lp.findlaw.com/cacodes/pen/12020-12040.html).

But the scrambling of 'public place' remains.

As I pointed out in the 'locked case' thread you started, trying to derive some logical basis for gun control laws only leads to frustration, because the motivation is not 'safety', as any reasonable person might expect, but 'political'.

So, because of that ruling the law was updated to allow business owners to carry in their place of business?

Librarian
07-24-2009, 2:05 PM
So, because of that ruling the law was updated to allow business owners to carry in their place of business?
Yes. But the 'loaded' issue from 12031 is still clouded.

locosway
07-24-2009, 2:06 PM
Yes. But the 'loaded' issue from 12031 is still clouded.

Thanks much for the info!