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MarioS
10-14-2009, 2:24 PM
If this has been covered, I apologize.

I know civilians can carry concealed on their own private property/residence and temporary residences, but what about the residences of friends? For example, if Joe Plumber has a friend who rents a home, can Joe Plumber carry concealed at said buddy's residence with the approval of said friend? And even further, can Joe Plumber keep a loaded gun there if staying overnight?

Thanks, guys.

Ducman
10-14-2009, 2:42 PM
I believe that as long you have the permissiion of the owner but in this case a Renter(may have prohibition from landlord?) not really sure. I know not any help at all, but would like to find out too.

bigcalidave
10-14-2009, 4:31 PM
What prevents you from carrying concealed on ANY private property if you have the permission of the owner/resident/manager/employee, etc??

wellerjohn
10-14-2009, 5:49 PM
What prevents you from carrying concealed on ANY private property if you have the permission of the owner/resident/manager/employee, etc??

Nothing, from the owner or resident. Not sure on a manager or employee, but would think they can't give permission legally.

bigcalidave
10-14-2009, 9:45 PM
Anyone else?

dantodd
10-14-2009, 10:06 PM
What prevents you from carrying concealed on ANY private property if you have the permission of the owner/resident/manager/employee, etc??

If the property is publicly accessible (see overturf) it's a no-go.

GammaRei
10-14-2009, 10:06 PM
I just read something about people and flags on rented property. It said that the inside of the rented property was basically the renters. So that would make it sound like as long as you don't go outside you're ok. But get this covered and make sure.

- G

MarioS
10-14-2009, 10:35 PM
Thanks, guys.

What prevents you from carrying concealed on ANY private property if you have the permission of the owner/resident/manager/employee, etc??

I'm with you, but this is California...

xxdabroxx
10-15-2009, 7:12 AM
People carry in gun shops all the time without ccws, they are open to the public.

IGOTDIRT4U
10-15-2009, 7:15 AM
People carry in gun shops all the time without ccws, they are open to the public.

That's legal because there is a specific exception in the PC.

MrClamperSir
10-15-2009, 7:27 AM
People carry in gun shops all the time without ccws, they are open to the public.That's legal because there is a specific exception in the PC.


It's legal because they are "inside" their business. PC section 12026 (b) says you may carry in you home or business. The outside of the business (parking lot, walkways, etc) are what is considered open to the public.

GrizzlyGuy
10-15-2009, 7:56 AM
I know civilians can carry concealed on their own private property/residence and temporary residences, but what about the residences of friends? For example, if Joe Plumber has a friend who rents a home, can Joe Plumber carry concealed at said buddy's residence with the approval of said friend? And even further, can Joe Plumber keep a loaded gun there if staying overnight?

I'd say no, that would not be legal.

12025 makes concealed carry unlawful in general. To get around 12025 so as to lawfully carry concealed, you need to use one of the exemptions in 12026, 12026.1, 12026.2 or 12027. The one most relevant would be this from 12026:

"Section 12025 shall not apply to or affect any citizen
of the United States or legal resident 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,
who carries, either openly or concealed, anywhere within the citizen's or legal resident's place of residence, place of business, or on private property owned or lawfully possessed by the citizen or legal resident any pistol, revolver, or other firearm capable of being concealed upon the person."

Note the possessive of "citizen's". You can carry concealed within your home, but not in Joe Plumber's home since you (and not Joe) are the relevant citizen. It doesn't matter that Joe is also a citizen. You don't own or lawfully possess Joe's house, he does.

There may be some other exemption to 12025 that would allow you to carry concealed at Joe's house, although I can't think of any off the top of my head (other than CCW permit holder). You can read through the statutes here:

12025:
http://law.onecle.com/california/penal/12025.html

12026:
http://law.onecle.com/california/penal/12026.1.html

12026.1:
http://law.onecle.com/california/penal/12026.1.html

12026.2:
http://law.onecle.com/california/penal/12026.2.html

12027:
http://law.onecle.com/california/penal/12027.html

xxdabroxx
10-15-2009, 8:52 AM
What's the one about temporary place of residence, eg: campsite/ hotel

CSACANNONEER
10-15-2009, 9:03 AM
It's legal because they are "inside" their business. PC section 12026 (b) says you may carry in you home or business. The outside of the business (parking lot, walkways, etc) are what is considered open to the public.

While one may CCW in their bussiness without a permit. It is not legal for employees to CCW. They need to LOC instead. At least, this is my understanding of the law. If someone can cite PC which shows that employees and/or guests of a bussiness owner can carry concealed with the owners permission, I'd love to see it.

dirtnap
10-15-2009, 10:06 AM
I'm curios as to the real answer here. A friend has authorization from the owner of the hotel he works for to carry his firearm while there. He works the front desk as the night manager and does not get off until about midnight. Can he CCW or LOC? At the moment he keeps it in a lockbox under the counter, but thats a hassle to access he probably wont be able to get to it if it's a close quarters encounter. The area he works is bad enough that the security guards van was ransacked during the 5-10 minutes he went inside the office to talk to my friend recently. my buddy also caught somebody looking into his cars windows not too long ago as well and had to run out of the office and chase them away (unarmed).

Flopper
10-15-2009, 10:36 AM
I can't cite PC right now, but it is LEGAL for employees to carry concealed without a permit at their place of employment if they have the consent of the owner.

dantodd
10-15-2009, 10:59 AM
I'm curios as to the real answer here. A friend has authorization from the owner of the hotel he works for to carry his firearm while there. He works the front desk as the night manager and does not get off until about midnight. Can he CCW or LOC? At the moment he keeps it in a lockbox under the counter, but thats a hassle to access he probably wont be able to get to it if it's a close quarters encounter. The area he works is bad enough that the security guards van was ransacked during the 5-10 minutes he went inside the office to talk to my friend recently. my buddy also caught somebody looking into his cars windows not too long ago as well and had to run out of the office and chase them away (unarmed).

LOC should be legal for your friend with permission inside the hotel, CCW is more touchy, I'll let some of the CGF guys voice their opinion as to the defensibility but I'd expect trouble if he gets caught doing it. In the parking lot or outside it is not legal to LOC or CCW if the parking lot is open to public access. If the parking lot is gated and there is a perimeter fence preventing pedestrians from entering uninvited LOC might be legal but it might result in having to defend it in court.

dantodd
10-15-2009, 11:00 AM
I can't cite PC right now, but it is LEGAL for employees to carry concealed without a permit at their place of employment if they have the consent of the owner.

I would like to know the PC for that as it is my understanding that only the owner can CCW at their place of employment. Employees are permitted to LOC if the owner approves.

GuyW
10-15-2009, 11:03 AM
I'd say no, that would not be legal.

12025 makes concealed carry unlawful in general. To get around 12025 so as to lawfully carry concealed, you need to use one of the exemptions in 12026, 12026.1, 12026.2 or 12027. The one most relevant would be this from 12026:


12025 is about "concealed", not "loaded". Hence 12026 has nothing to say about allowing "loaded" (which is prohibited per 12031).

.

CSACANNONEER
10-15-2009, 11:06 AM
I can't cite PC right now, but it is LEGAL for employees to carry concealed without a permit at their place of employment if they have the consent of the owner.

I'd like to see the PC. the only thing I can find is this:

4. POSSESSION AND TRANSPORTATION OF CONCEALED WEAPONS
Carrying a Concealed Handgun Without a License on One's Person or Concealed in a Vehicle
Pursuant to Penal Code section 12025, a person is guilty of carrying a concealed firearm when he
or she does any of the following:
• Carries concealed within any vehicle which is under his or her control, any pistol,
revolver, or other firearm capable of being concealed upon the person.
• Carries concealed upon his or her person any pistol, revolver, or other firearm
capable of being concealed upon the person.
• Causes to be carried concealed within any vehicle in which he or she is an occupant
any pistol, revolver, or other firearm capable of being concealed upon the person.
NOTE: A firearm carried openly in a belt holster is not considered "concealed" as it
California Firearms Laws 2007 29
applies to the above prohibition. (Penal Code § 12025(f).)
Section 12025 does not apply to or affect any of the following:
• Any citizen of the United States or legal resident over the age of 18 years who resides or is
temporarily within this state, and who is not prohibited from owning or possessing firearms
pursuant to Penal Code sections 12021 or 12021.1 or section 8100 or 8101 of the Welfare and
Institutions Code, may carry, either openly or concealed, anywhere within his or her place of
business, or on private property owned or lawfully possessed by him or her any pistol, revolver,
or other firearm capable of being concealed upon the person. A permit or license to purchase,
own, possess, keep, or carry is not required under these circumstances. (Penal Code § 12026.)
• The transportation or carrying of any pistol, revolver, or other firearm capable of being
concealed upon the person by any citizen of the United States over the age of 18 years
who resides or is temporarily within this state, and is not within the excepted classes
prescribed by Penal Code Sections 12021 or 12021.1 or Welfare and Institutions Code sections
8100 or 8103, provided that the following applies:
- 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, and;
- when the firearm is carried by the person to or from any motor vehicle for any lawful purpose, the
firearm must be contained in a locked container while being physically carried. (Penal Code §
12026.1.)
Penal Code Section 12025 does not apply to or affect the lawful transportation or possession of a
firearm under specific circumstances, including, but not limited to, the following:
• The transportation of a firearm by a person who finds the firearm in order to comply
with Article 1 (commencing with section 2080) of Chapter 4 of Division 3 of the
Civil Code as it pertains to that firearm and if that firearm is being transported to a law
enforcement agency, the person gives prior notice to the law enforcement agency that he or
she is transporting the firearm to the law enforcement agency. (Penal Code § 12026.2(a)(17).)
• The transportation of a firearm by a person who finds the firearm, and is transporting it to a law
enforcement agency for disposition according to law, if he or she gives prior notice to the law
enforcement agency that he or she is transporting the firearm to the law enforcement agency for
disposition according to law. Firearms must be transported unloaded and in a locked container
and the course of travel shall include only those deviations between authorized locations, as
necessary. (Penal Code §§ 12026.2(a)(17), (18) and (b).)
• The carrying of a pistol, revolver, or other firearm capable of being concealed upon the
person by a person who is authorized to carry that weapon in a concealed
manner pursuant to Article 3 (commencing with section 12050) of the Penal Code.
• Members of any club or organization organized for the purpose of practicing
shooting at targets upon established target ranges, whether public or private, while
the members are using concealable firearms upon the target ranges.
• Authorized peace officers, retired peace officers, and retired federal officers or agents,
as defined in Penal Code sections 830.1, 830.2, 830.5, 12027(a) and 12031(b).
• Licensed hunters or fishermen while engaged in hunting or fishing, or while going
to or returning from such hunting or fishing expeditions.
• The possession or transportation of unloaded pistols, revolvers, or other firearms
capable of being concealed upon the person as merchandise by a person who is
licensed in the business of manufacturing, repairing, or dealing in firearms.
California Firearms Laws 2007 30
• The carrying of unloaded pistols, revolvers, or other firearms capable of being concealed
upon the person by duly authorized military or civil organizations while parading, or the
members thereof when going to and from the places of meeting of their respective
organizations.
• Guards or messengers of common carriers, banks, and other financial institutions
while actually employed in and about the shipment, transportation, or delivery of
any money, treasure, bullion, bonds, or other thing of value within this state.
• Transportation of unloaded firearms by a person operating a licensed common carrier
or an authorized agent or employee thereof when transported in conformance with applicable
federal law.
Notwithstanding the exceptions cited in Section 5. Loaded Firearms, individuals may not carry or
transport a loaded firearm. The firearm should be unloaded and placed in the trunk of the vehicle,
or if the vehicle has no trunk, placed in a fully enclosed secure locked container other than the utility
or glove compartment of a motor vehicle (Penal Code §§ 12026.1, 12027.)

Notice that it exempts THE OWNER of a bussiness but not any employees. I would be very careful about CCWing without a permit unless you own the bussiness or, at least, contact an attorney first!

Here is a link to the actual PC. Please point out where it exempts "employees with permission from the owner" from 12025.

http://ag.ca.gov/firearms/dwcl/12020.php

bigcalidave
10-15-2009, 11:40 AM
Says it right in
Any citizen of the United States or legal resident over the age of 18 years who resides or is
temporarily within this state, and who is not prohibited from owning or possessing firearms
pursuant to Penal Code sections 12021 or 12021.1 or section 8100 or 8101 of the Welfare and
Institutions Code, may carry, either openly or concealed, anywhere within his or her place of
business, or on private property owned or lawfully possessed by him or her any pistol, revolver,
or other firearm capable of being concealed upon the person. A permit or license to purchase,
own, possess, keep, or carry is not required under these circumstances. (Penal Code § 12026.)

That means where you WORK, your place of business doesn't mean you own the building.

bigcalidave
10-15-2009, 11:42 AM
And there is certainly no reason to LOC, nowhere in the law does it say you can carry loaded openly but NOT concealed.

I'm really hoping to find case law about carrying concealed in someone else's house. With permission, etc. But since it's usually criminals getting busted, its always a bad deal.

GuyW
10-15-2009, 11:48 AM
And there is certainly no reason to LOC, nowhere in the law does it say you can carry loaded openly but NOT concealed.


Where does it say you can carry loaded (in any location)?

.

dantodd
10-15-2009, 12:05 PM
And there is certainly no reason to LOC, nowhere in the law does it say you can carry loaded openly but NOT concealed.

nowhere in the law will you find it stated to be legal to take a breath of air. Laws do not generally create legal activities. Laws proscribe certain activities and then, often, go on to describe exceptions to which the law does not apply.

For example, 12025 makes it illegal to carry a concealed weapon in California. It then goes on to describe certain exemptions to that law such as when issued a CCW. You'll notice that 12025 does not deal with a loaded firearm so it is possible that there are situations where it is legal to carry a concealed weapon but only if that weapon is unloaded (such as in a locked container.)

CPC 12031 is the law that generally makes carrying a loaded weapon illegal. There are several exemptions to this law such as when at a shooting range or while hunting.

12031(h) carves out just such an exemption:
Nothing in this section shall prevent any person engaged in any lawful business, including a nonprofit organization, or any officer, employee, or agent authorized by that person for lawful purposes connected with that business, from having a loaded firearm within the person's place of business, or any person in lawful possession of private property from having a loaded firearm on that property.

As you can see any employee authorized by the business owner (that person) may carry within the place of business.


However; if we look at the similar concealed carry exemption which is at 12026(a) Section 12025 shall not apply to or affect any citizen of the United States or legal resident 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, who carries, either openly or concealed, anywhere within the citizen's or legal resident's place of residence, place of business, or on private property owned or lawfully possessed by the citizen or legal resident any pistol, revolver, or other firearm capable of being concealed upon the person.

You can see clearly that the legislature left off the "employee" exemption.


It now becomes obvious that 12031(h) says you can carry a loaded weapon at your place of employment with the owners consent BUT 12026(a) says that ONLY the business owner can actually carry concealed.

bigcalidave
10-15-2009, 12:21 PM
I'm just wondering what you are reading that says the owner of the business???? It says place of business. Citizen's place of business... Doesn't say the owner of the citizens place of business. And my reference to loaded open carry was a response to
I would like to know the PC for that as it is my understanding that only the owner can CCW at their place of employment. Employees are permitted to LOC if the owner approves. since you are just mixing the loaded rules and open carry.
If you work somewhere, and it's not a prohibited place, and it's not a school (and you don't have a CCW) then you can carry at work! AT YOUR PLACE OF BUSINESS.


EDIT:
Oh I see what you are doing. It says three different exemptions, and you are mixing them up.
You can carry at
Place of residence
Place of business
AND
on private property owned or lawfully possessed by the citizen or legal resident
Which means you can carry on property you own but don't live or work at.

CSACANNONEER
10-15-2009, 12:24 PM
Says it right in


That means where you WORK, your place of business doesn't mean you own the building.

No, I never ment the property owner. I ment the bussiness owner.

donstarr
10-15-2009, 12:26 PM
If you work somewhere, and it's not a prohibited place, and it's not a school (and you don't have a CCW) then you can carry at work! AT YOUR PLACE OF BUSINESS.

If you're an employee and not the business owner (sure, you could be both): it's not your place of business; it's your place of employment. They're not the same thing.

bigcalidave
10-15-2009, 12:31 PM
If you're an employee and not the business owner (sure, you could be both): it's not your place of business; it's your place of employment. They're not the same thing.

Prove it.
When I do my taxes it asks if my primary place of business is in California. If I'm an independent contractor it's always my place of business. Where does it say that if you work somewhere it is not your place of business.

mej16489
10-15-2009, 12:32 PM
12031(h) carves out just such an exemption:
Nothing in this section shall prevent any person engaged in any lawful business, including a nonprofit organization, or any officer, employee, or agent authorized by that person for lawful purposes connected with that business, from having a loaded firearm within the person's place of business, or any person in lawful possession of private property from having a loaded firearm on that property.


It now becomes obvious that 12031(h) says you can carry a loaded weapon at your place of employment with the owners consent BUT 12026(a) says that ONLY the business owner can actually carry concealed.


Isn't this the spot where someone brings up that 12031(h) say "have" not "carry"?

dantodd
10-15-2009, 12:36 PM
If you read "place of business (http://legal-dictionary.thefreedictionary.com/Place+of+business)" to only apply to the owner it should all be clear.

While "place of business" and "place of employment" may see indistinguishable to you; the legal interpretation is that they are not the same and only the owner(s) are exempted in 12025. If "place of business" referred the location of employment for any person there would be no need to have the agent or employee wording in 12031.


I am not mixing "open carry" and concealed carry issues. Being able to carry concealed DOES NOT permit one to loaded concealed carry. There are 2 relevant statutes, 12025 which addresses concealed carry and 12031 which addresses loaded weapons, whether concealed or openly carried. If you are in a situation where you can legally carry concealed it does not automatically mean that you can have your weapon loaded.

GuyW
10-15-2009, 12:40 PM
12031(h) carves out just such an exemption:
Nothing in this section shall prevent any person engaged in any lawful business, including a nonprofit organization, or any officer, employee, or agent authorized by that person for lawful purposes connected with that business, from HAVING a loaded firearm within the person's place of business, or any person in lawful possession of private property from HAVING a loaded firearm on that property.

As you can see any employee authorized by the business owner (that person) may carry within the place of business.


No, it says "have". Read Overturf.
.

bigcalidave
10-15-2009, 12:43 PM
You say that the legal interpretation is not the same, prove it. Where is that definition. I'm searching, and that's not what I find.
Even in the link you posted it says
when he usually transacts his business at the counting house, office, and the like, occupied and used by another, that will also be considered his place of business
Your office is your place of business, where you transact your business is your place of business. So how is where you work NOT your place of business.

donstarr
10-15-2009, 12:47 PM
Prove it.
When I do my taxes it asks if my primary place of business is in California.
Does "it" (whatever "it" is) ask that question if you're not a principal of or otherwise have some stake in (control over, interest in, etc.) an actual "business"?

If I'm an independent contractor it's always my place of business. Where does it say that if you work somewhere it is not your place of business.

As an independent contractor myself, my "place of business" (not that it ever has any significant effect on the federal and state forms that I fill out each April) is where I primarily conduct my business activities: a 300 sq. ft. bedroom on the 2nd floor of my house (my "office"). My "place of business" didn't automatically move to Ft. Worth when I went there for a business meeting in April, nor did it move to Dayton in May 2008 when I attended a convention on business.

It seems that, by your logic, an independent contractor engaged in the business of writing computer software could visit a Starbucks, whip out the laptop and write a few lines of code, then LOC ... since that's now "his place of business". Heck, he could rig up a harness for the laptop so that he's always writing code, then LOC anywhere he pleases (avoiding, of course, school zones, etc.), since everywhere he happens to walk is now "his place of business". Somehow, I doubt that would impress a judge.

donstarr
10-15-2009, 12:52 PM
You say that the legal interpretation is not the same, prove it. Where is that definition. I'm searching, and that's not what I find.
Even in the link you posted it says

Your office is your place of business, where you transact your business is your place of business. So how is where you work NOT your place of business.

If you're an employee and not the business owner, you're not transacting "your" business; you're an agent of the business owner and are being paid to transact his business.

dantodd
10-15-2009, 12:58 PM
No, it says "have". Read Overturf.
.

Yes I forgot about the terrible ruling in Overturf which creates the class of "unloaded concealed carry" for business owners.

We really need to have this mooted. Even getting shall issue would not do what needs to be done here.

dantodd
10-15-2009, 1:00 PM
Your office is your place of business, where you transact your business is your place of business. So how is where you work NOT your place of business.

You'll have to do the rest on your own. I've posted plenty as have others, you have google and are I would urge you to use it. Look up the requirements for posting employment rules for example. EVERYWHERE they talk about employees they call it "place of employment" and every time they refer to "place of business" it is in reference to the person or corporation that owns the business.

bigcalidave
10-15-2009, 1:06 PM
No, not the coffee shop, That definition of place of business says that a public place where you have no right for private business is not a place of business. I still disagree.
Aren't these laws amazing?
So if you can have your loaded weapon at a place where you are an employee, carry it at your house or your place of business, but not carry it at your place of business because of overturf, unless you need it immediately. Are there any cases of someone getting busted at their job for carrying? I think the nonsense wording could be argued successfully.

I just like to hash these things out to the furthest extent of the argument so that we can be sure all aspects of the law are covered in the discussion. There may be avenues that haven't been covered, and it could provide a simple answer somewhere in discussion. Attitude isn't necessary.

dantodd
10-15-2009, 1:31 PM
So if you can have your loaded weapon at a place where you are an employee, carry it at your house or your place of business, but not carry it at your place of business because of overturf, unless you need it immediately. Are there any cases of someone getting busted at their job for carrying? I think the nonsense wording could be argued successfully.


As GuyW told me. READ People v. Overturf it is an appeals court decision that created the difference between carry and have. So, no, it wasn't argued successfully, it was the exact argument that forced the courts to create this schism in the first place. I agree that it is bad case law but it is very difficult to overturn case law.


I just like to hash these things out to the furthest extent of the argument so that we can be sure all aspects of the law are covered in the discussion. There may be avenues that haven't been covered, and it could provide a simple answer somewhere in discussion. Attitude isn't necessary.

You have had a number of people describe to you the difference between "place of business" and "place of employment." If you choose to summarily dismiss those considered opinions then the attitude is yours. If you are going to demand "proof" of a definition then you should be able to provide the same for your own proposed definition. The definition of legal terms are not always the same as the common use.

locosway
10-15-2009, 1:45 PM
If it's an apartment you can't CC in the common area. Only inside your living space or, with permission, another persons living space.

You can't CC in your front yard either unless you have a fence with a locking gate from what I understand also.

donstarr
10-15-2009, 1:54 PM
No, not the coffee shop, That definition of place of business says that a public place where you have no right for private business is not a place of business.
Where I mentioned Starbucks, I was referring to your post above where you said "If I'm an independent contractor it's always my place of business". I took that to mean "wherever I'm engaged in doing my work is my place of business". At the time I clicked "submit" on my post mentioning Starbucks, I had not yet seen dantodd's link which excluded "public" places.

So if you can have your loaded weapon at a place where you are an employee
with the business owner's authorization
, carry it at your house or your place of business, but not carry it at your place of business because of overturf, unless you need it immediately

12025: generally prohibits carrying any concealed firearm
12026: exceptions to 12025, including carrying any firearm, openly or concealed, in your residence or place of business
12031(a)(1): generally prohibits carrying a loaded firearm in a public place
12031(h): exception to 12031(a), saying 12031(a) shall not prohibit the having of a loaded firearm in certain places (e.g. on your private property, at your place of business, at your place of employment with authorization of person/entity whose "place of business" it is)

The Overturf case involved an alleged violation of 12031(a). The defendant was charged (and convicted) of carrying a loaded firearm in a public place (the "public" portion of a residential property - i.e. a driveway of an apartment complex). He tried to use the exception in 12031(f) (subdivision lettering has changed since then - it's now 12031(h)), saying it was his place of business, even though it was "public" within the definition of 12031(a). The court disagreed with him, describing the distinction between "having" and "carrying". The court explicitly said that the having of the weapon would've been "proper", but carrying it is "bad":
Under our reading of the statute, it is proper [64 Cal.App.3d Supp. 7] for a person to own, possess or keep a weapon at his place of business or his residence or on his private property, as the case may be, but not to carry it about thereon unless it is necessary to use it under circumstances where use of a firearm is otherwise lawful.
The result is that the court said you cannot carry a loaded firearm in the public space portions of your private property or place of business, but you can have one in such places. (It's left as an excercise to figure out how to "have" (permitted) something in a place without somehow "carrying" (prohibited) that thing to and within that place.)

Also, the Overturf court was only considering PC 12031 - carrying a loaded firearm in a public place. They were not considering any "private places" (like inside your house), so their decision cannot be read to affect 12026's exceptions to 12025.

CSACANNONEER
10-15-2009, 1:57 PM
If it's an apartment you can't CC in the common area. Only inside your living space or, with permission, another persons living space.

You can't CC in your front yard either unless you have a fence with a locking gate from what I understand also.

I don't know about the "common area" thing but, AFAIK, the front yard thing would be pretty easy to argue. I see it as the same as owning 5000 acres that is not fenced off. There is no law that I'm aware of that limits your right to carry on your property just because you have a small property. So, if a guy with 5000 acres can carry on his unfenced property, why can't the guy with a 100 sq ft front yard?

donstarr
10-15-2009, 1:58 PM
If it's an apartment you can't CC in the common area. Only inside your living space or, with permission, another persons living space.

You can't CC in your front yard either unless you have a fence with a locking gate from what I understand also.

You can't carry loaded in a public part of your private property (e.g. front yard accessible to the public). 12031(a) specifically prohibits (only) the carrying of a loaded firearm in a public place.

donstarr
10-15-2009, 2:01 PM
I don't know about the "common area" thing but, AFAIK, the front yard thing would be pretty easy to argue. I see it as the same as owning 5000 acres that is not fenced off. There is no law that I'm aware of that limits your right to carry on your property just because you have a small property. So, if a guy with 5000 acres can carry on his unfenced property, why can't the guy with a 100 sq ft front yard?

Unless that 100 sq ft front yard is somehow not open to the public, it's a "public place" (e.g. anyone who wants to can come up an ring your front door bell, read your meters, deliver your mail, drop off advertisements, etc.). 12031(a) prohibits carrying a loaded firearm in such a "public place" - private property or not.

Flopper
10-15-2009, 2:13 PM
You have had a number of people describe to you the difference between "place of business" and "place of employment." If you choose to summarily dismiss those considered opinions then the attitude is yours. If you are going to demand "proof" of a definition then you should be able to provide the same for your own proposed definition. The definition of legal terms are not always the same as the common use.

(Note: the above quote was not directed towards me)

The fact remains that all of the definitions you have provided for the presumed differences are based on your interpretation and not something which is defined by PC or case law.

Because of this, the ball is in your court to post relevant PC or case law which specifically states that there is indeed a difference between "Place of Business" and "Place of Employment" regarding the issue at hand.

CSACANNONEER
10-16-2009, 5:31 AM
Unless that 100 sq ft front yard is somehow not open to the public, it's a "public place" (e.g. anyone who wants to can come up an ring your front door bell, read your meters, deliver your mail, drop off advertisements, etc.). 12031(a) prohibits carrying a loaded firearm in such a "public place" - private property or not.

So, that would mean an unfenced 5000 acre place would be the same thing, right?

donstarr
10-16-2009, 6:17 AM
So, that would mean an unfenced 5000 acre place would be the same thing, right?

As far as being considered a "public place", they might be the same thing. However, it may not matter for purposes of PC 12031.

For example:

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.

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

If this nearly 8 square mile chunk of private property is not in an incorporated city, and it's otherwise legal to discharge a firearm on that property, 12031 doesn't prohibit carrying loaded.

locosway
10-16-2009, 7:35 AM
So, that would mean an unfenced 5000 acre place would be the same thing, right?

If the property is in an unincorporated area, which with 5k acres is likely then carry would be legal. If somehow you managed to sneak in that much property into downtown LA, then no, you can't carry.

donstarr
10-16-2009, 7:48 AM
If the property is in an unincorporated area, which with 5k acres is likely then carry would be legal. If somehow you managed to sneak in that much property into downtown LA, then no, you can't carry.

Unless you're hunting, and presuming the city council hasn't prohibited hunting at that time and place.

locosway
10-16-2009, 7:50 AM
Unless you're hunting, and presuming the city council hasn't prohibited hunting at that time and place.

I do not know of an hunting grounds in incorporated areas. Also, discharging firearms within most city limits is illegal in CA.

donstarr
10-16-2009, 9:40 AM
I do not know of an hunting grounds in incorporated areas. Also, discharging firearms within most city limits is illegal in CA.

PC12031 does provide certain exceptions to its general prohibition, and hunting in incorporated cities is one that is specifically mentioned. Sure, there may not be any cities left in CA that have not prohibited hunting; there probably aren't too many with 5000 acre plots of private property, either - but that's not stopping us from talking about it ;) .

(Whether it's lawful to discharge a firearm inside city limits isn't relevant to the PC12031 discussion, I think, except, perhaps, to determine if hunting might be indirectly prohibited; whether such discharge is lawful is specifically mentioned in 12031 only in its definition of "prohibited area", and the term "prohibited area" is only used in reference to unincorporated territory.)

Most of this discussion (WRT 5000 acre plots of land) is, I think, hypothetical, trying to resolve PC12031's general prohibition against loaded carry in public places, the supposition that a 100 sq ft front yard is a "public place", and how much of an unfenced 5000 acre plot would be considered a "public place". I think we should presume that the places and conditions described in PC12031's exceptions actually exist - hypothetically, at least.

If somehow you managed to sneak in that much property into downtown LA, then no, you can't carry.
That may be true for the City of Los Angeles in particular (I don't know), but it's not generally prohibited by PC12031. Only the "public place" portion(s) of the private property would be addressed by 12031.

CSACANNONEER initially raised the question "if it's legal to carry on a 5000 acre parcel, why is it illegal to carry in a 100 sq ft front yard?"

I think the fact that it's illegal to carry in the 100 sq ft front yard is established law, at least as far as the oft-cited People v. Overturf is concerned* : it's not legal to carry there because it's a public place. I think the question then becomes: how large is the "public space buffer zone", if any, that might exist on this hypothetical, unfenced, large parcel inside an incorporated city, and why is that parcel any different from a small front yard? That is, would a point in the parcel be considered a "public place" if someone has to walk two or three miles from the nearest public right-of-way to reach that point, encountering "No Trespassing" signs along the way?

Alternatively, why is a residence's small front yard a public space, anyway? Merely because the public can step on to it unhindered, or because the public can step onto it and might have a legitimate reason to do so (e.g. visitors, USPS employees and other delivery personnel, poll-takers, solicitors, confused relatives of your neighbors, etc.)?

If the former, then the whole 5000 acres is probably a "public place" and, in an incorporated city, you may not carry. If the latter, then a 5000 acre parcel with no dwelling - I don't recall seeing any reference to a dwelling on this hypothetical parcel - probably should not be considered a public place (since the general public has no "legitimate" reason to be there), and PC12031 would not apply.

(*The appellate decision in People v. Overturf, the case that's often referenced in PC12031 discussions, did not say why the location of the incident (a driveway in an apartment complex) was a "public place"; it merely stated that it was: "the incident took place ... on property which, while "public" within the definition of subdivision (a), nevertheless was his private property within subdivision (f)".)


ETA: A relatively recent case (http://www.courtinfo.ca.gov/opinions/documents/B204571.PDF) has some pretty good definitions of "public place" in various contexts (though, sadly, none mention 5000 acre plots of private property within incorporated cities). Interestingly, a fenced front yard (a wrought iron fence, which you can obviously see through, with an open gate) was ruled NOT a public place. The appellant/defendant's conviction for possession of a controlled substance with a firearm was reversed, because the arresting officers, who had observed the defendant with a firearm in the yard, had no reasonable suspicion that he had committed any crime.

ETA2: One of the definitions of "public place" cited, not rejected, and presumably considered by the court in the above-linked case was "“The term 'public place' generally means 'a location readily accessible to all those who wish to go there . . . .' [Citation.] The key consideration is whether a member of the public can access the place 'without challenge.' [Citation.]” (People v. Krohn, supra, 149 Cal.App.4th at p. 1298.)". Using this definition, the entire hypothetical, unfenced, 5000 acre parcel is a "public place", dwelling or not, and PC12031 would prohibit carrying a loaded firearm there in an incorporated city.

donstarr
10-16-2009, 11:25 AM
So, that would mean an unfenced 5000 acre place would be the same thing, right?

Short answer based on my above post:

Yes, the 100 sq ft front yard and the unfenced 5000 acre place would likely be the same, as far as PC 12031 is concerned, and presuming we're comparing apples to apples (e.g. same incorporated city, same county if unincorporated territory, no city- or county-specific ordinances that differentiate based on "lot size", etc.). If carrying on the 5000 acre parcel is legal, it's probably legal to carry in the front yard; conversely, if it's not legal to carry in the front yard, it's probably not legal to carry on the 5000 acre parcel.

CSACANNONEER
10-16-2009, 3:13 PM
I do not know of an hunting grounds in incorporated areas. Also, discharging firearms within most city limits is illegal in CA.

You do not need to discharge a firearm when hunting. I haven't read the hunting regs recently but, it used to be legal to hunt Turkeys with .22 caliber airguns in LA County. Yea, discharging an airgun can be considered discharging a firearm depending on the city ordinance. Also, many people hunt with bows and some with cross bows. Again, the use of both of these can fall under the definition of discharging a firearm depending on how a particular city ordinance was written. But, some local ordinaces probably allow for one or more of these weapons to be used while hunting within a local municipality. I've read some great articles on hunting in urban areas. Many good hunting areas can be right under your nose and you don't even know it.

locosway
10-16-2009, 4:12 PM
You do not need to discharge a firearm when hunting. I haven't read the hunting regs recently but, it used to be legal to hunt Turkeys with .22 caliber airguns in LA County. Yea, discharging an airgun can be considered discharging a firearm depending on the city ordinance. Also, many people hunt with bows and some with cross bows. Again, the use of both of these can fall under the definition of discharging a firearm depending on how a particular city ordinance was written. But, some local ordinaces probably allow for one or more of these weapons to be used while hunting within a local municipality. I've read some great articles on hunting in urban areas. Many good hunting areas can be right under your nose and you don't even know it.

We're talking firearms, unless some how the discussion moved to firearm hunting alternatives.

CSACANNONEER
10-16-2009, 5:36 PM
We're talking firearms, unless some how the discussion moved to firearm hunting alternatives.

Yes we are. I was pointing out the fact that there can and are places which are legal to hunt within incorporated areas. You just stated that you were unaware that any existed. They do. There may even be incorperated areas which allow discharging of a firearm while hunting. Note, even using airguns or casting a bolt or arrow can be legally considered "discharging a firearm" depending on the local ordinance.

locosway
10-16-2009, 5:45 PM
Yes we are. I was pointing out the fact that there can and are places which are legal to hunt within incorporated areas. You just stated that you were unaware that any existed. They do. There may even be incorperated areas which allow discharging of a firearm while hunting. Note, even using airguns or casting a bolt or arrow can be legally considered "discharging a firearm" depending on the local ordinance.

I still haven't see a place to hunt with a firearm inside city limits.

GuyW
10-16-2009, 5:49 PM
YI haven't read the hunting regs recently but, it used to be legal to hunt Turkeys with .22 caliber airguns in LA County.

.20 cal and larger, in the entire state.
.

dantodd
10-16-2009, 10:14 PM
You do not need to discharge a firearm when hunting. I haven't read the hunting regs recently but, it used to be legal to hunt Turkeys with .22 caliber airguns in LA County. Yea, discharging an airgun can be considered discharging a firearm depending on the city ordinance. Also, many people hunt with bows and some with cross bows. Again, the use of both of these can fall under the definition of discharging a firearm depending on how a particular city ordinance was written. But, some local ordinaces probably allow for one or more of these weapons to be used while hunting within a local municipality. I've read some great articles on hunting in urban areas. Many good hunting areas can be right under your nose and you don't even know it.

I sure wish it were legal to take raccoons with an airgun in city limits. The damn things keep stealing my cat's food, they come right in the cat door.

CSACANNONEER
10-17-2009, 7:11 AM
I sure wish it were legal to take raccoons with an airgun in city limits. The damn things keep stealing my cat's food, they come right in the cat door.

Do not try this! A friend of mine in Arkansas is having major coon problems right now. He finally had enough, bought a quality air rifle and shot one in the head. The thing flopped around spraying blood all over his porch. He said the blood stunk and was a b!cth to clean. He has given up on the air rifle idea for now and comtemplating using his FA MAC with a can instead. The biggest problem with that is he lives in town.

Southwest Chuck
10-17-2009, 8:09 AM
Do not try this! A friend of mine in Arkansas is having major coon problems right now. He finally had enough, bought a quality air rifle and shot one in the head. The thing flopped around spraying blood all over his porch. He said the blood stunk and was a b!cth to clean. He has given up on the air rifle idea for now and comtemplating using his FA MAC with a can instead. The biggest problem with that is he lives in town.

Here's a solution to that problem that worked for me when my dog got in the bad habit of getting into the trash after I went to bed. I got a dog shocker (for a fence). I attached one lead to a piece of meat wrapped in foil and put it in the trash and the other to a wet towel on the ground around it. Needless to say, the dog doesn't get in the trash any more!

For your friend's situation, he can attach one lead to the cat door (covered in aluminum foil). Put down a wet towel in front of the door and attach the other lead to it. As soon as the raccoon's nose hits the door.... ZAP !!! Once or twice and the problem is solved.

Just be sure to put the cat away when you do this :D

hoffmang
10-17-2009, 9:29 AM
The exception for "lawfully possessed" is large enough to drive a very large truck through.

"anywhere within the citizen's or legal resident's place of residence, place of business, or on private property owned or lawfully possessed by the citizen or legal resident."

Where you work is your place of business. The office/shop/hotel front desk you work at is "lawfully possessed" by you when you have permission from your employer to be there and permission from the person/entity that makes the area not public (aka, your employer.)

The hotel is an issue in that there are definitely Overturf areas - semi-public. However, being behind the counter is a place you'd keep non employees out of.

-Gene

Flopper
10-17-2009, 12:09 PM
Where you work is your place of business.
-Gene

Thank you for answering that, since a lot of misinformation has been thrown around in this thread regarding "Place of Business."

I have one other question: I haven't seen it in any PC that's been cited, but is it legally necessary to have explicit permission from the employer to be able to carry concealed at the place of business?

dantodd
10-17-2009, 1:24 PM
Where you work is your place of business. The office/shop/hotel front desk you work at is "lawfully possessed" by you when you have permission from your employer to be there and permission from the person/entity that makes the area not public (aka, your employer.)


I have never seen this interpretation of "place of business" So, according to your interpretation there is no need for an employee to get permission from his employer to carry concealed in his office?

hoffmang
10-17-2009, 2:42 PM
I have never seen this interpretation of "place of business" So, according to your interpretation there is no need for an employee to get permission from his employer to carry concealed in his office?

If you don't have permission then you probably don't have "private property ... lawfully possessed by the citizen or legal resident."

-Gene

GrizzlyGuy
10-17-2009, 4:49 PM
I have never seen this interpretation of "place of business" So, according to your interpretation there is no need for an employee to get permission from his employer to carry concealed in his office?

I hadn't either, and decided to search for supporting info. I found this in a footnote within an Oregon court case:

"...a California appellate court determined that a liquor store clerk, arrested for carrying a concealed handgun at work without a license, was not in his "place of business" as that phrase was used in Penal Code Section 12026. People v. Melton, 206 Cal App 3d 580, 253 Cal Rptr 661 (1988). In 1989, in response to Melton, the California legislature amended the statute and adopted a statement of purpose, specifying that Melton could not be read as requiring individuals with a proprietary, possessory, or substantial ownership interest in a business to obtain a license before carrying a concealed firearm at their place of business. Cal Stats 1989, ch 958, § 2."

http://simmonstrialpractice.com/OregonOpinions/A102784.htm

I still haven't found the legislature's 12026 statement of purpose from 1989, that would really settle this question.

bigcalidave
10-17-2009, 5:25 PM
Thank you for the clarification Gene!

hoffmang
10-17-2009, 6:53 PM
So it looks like the definitive case on CCW at your place of business is People v. Barela (http://login.findlaw.com/scripts/callaw?dest=ca/calapp3d/234/supp15.html&search=206)(1991) 234 Cal.App.3d Supp. 15.

The important part for those with actual permission to CCW from management or ownership who has the authority to grant permission to carry is:


In People v. Melton (http://login.findlaw.com/scripts/callaw?dest=ca/calapp3d/206/580.html) (1988) 206 Cal.App.3d 580 [253 Cal.Rptr. 661], the Court of Appeal affirmed the conviction of a convenience store clerk under Penal Code section 12025. The clerk was armed with a concealed weapon while working. He argued that Penal Code section 12026 provided an exception to section 12025 that allowed him to carry a concealed weapon at his workplace. (206 Cal.App.3d at p.586.) The court disagreed and drew a distinction between "... carrying a concealable weapon ... and carrying such a weapon concealed upon the person as prohibited in section 12025." (Id. at p.594.) The court found that section 12026 did not provide any exceptions to Penal Code section 12025, but "... merely highlights certain circumstances where owning, possessing, keeping or carrying a concealable weapon is not prohibited under section 12025." (206 Cal.App.3d at pp.594-595, fn. 4.)

The Legislature responded to the Melton decision (206 Cal.App.3d 580) by amending Penal Code section 12026 to provide that a person may carry a concealable weapon "either openly or concealed" in his or her place of business or residence.fn. 1 The Legislature also enacted an accompanying statement of purpose: "The purpose of enacting this measure is to abrogate the holding in People v. Melton, 206 Cal.App.3d 580, insofar as that decision [234 Cal.App.3d Supp. 20] purports to require the issuance of a concealed weapons permit in order to carry a pistol, revolver, or other firearm capable of being concealed upon the person, whether openly or concealed, within the places mentioned in Section 12026 of the Penal Code, by an individual who has a proprietary, possessory, or substantial ownership interest in the place." (Stats. 1989, ch. 958, § 2, No. 8 West's Cal. Legis. Service, pp.2988-2989 [No. 5 Deering's Adv. Legis. Service, p. 3340].)

Now the facts in Barela are a little squirley. This was a guy impersonating a cop who got a restaurant to let him eat for a discount in return for providing security. The manager who he claimed gave him permission to carry thought he was a LEO and didn't have the authority to give him that permission. As such, the court ruled Barela didn't have a "possessory interest" in the restaurant and it wasn't really his place of business. If you have the right to exclude people and you're actually employed, then you have a possessory interest and it is your place of business. Just make sure someone actually authorized to grant you permission to carry has.

-Gene

Seesm
10-17-2009, 7:32 PM
We need to find a way it is LEGAL in most everyones eye's to carry "concealed" at work so the work places are safer...My ladies place of business has to call the cops EVERY NIGHT to stop people from stealing food.

If said BG "thought" the employees were carrying would it make it safer or employees and customers? YES.

locosway
10-17-2009, 7:40 PM
We need to find a way it is LEGAL in most everyones eye's to carry "concealed" at work so the work places are safer...My ladies place of business has to call the cops EVERY NIGHT to stop people from stealing food.

If said BG "thought" the employees were carrying would it make it safer or employees and customers? YES.

SI CCW, but the owner could restrict carry during work for various reasons.

hoffmang
10-17-2009, 8:54 PM
I'm pulling all of this together on the wiki: http://wiki.calgunsfoundation.org/index.php/Unlicensed_Concealed_Carry

-Gene

donstarr
10-17-2009, 9:03 PM
If you have the right to exclude people

Is "the right to exclude people" the same as "the power to exclude people"?

In my layman's view, it would seem that the terms are distinct, and the business owner, lessee, etc. is the only one that has the "right" - though he might delegate the "power" to his employee(s). If this is accurate, then wouldn't possessory interest remain only with the business owner, and not extend to employees?

dirtnap
10-18-2009, 9:51 AM
Thank you for the info Gene, much appreciated. I'll have my friend read all of this so he knows what the real deal is.
Maybe he can get written permission stating he has permission to carry there, I would imagine that would come in handy. However I would be surprised if they were willing to sign something.

donstarr
10-18-2009, 9:57 AM
Thank you for the info Gene, much appreciated. I'll have my friend read all of this so he knows what the real deal is.
Maybe he can get written permission stating he has permission to carry there, I would imagine that would come in handy. However I would be surprised if they were willing to sign something.

Based on the current contents of the Wiki (http://wiki.calgunsfoundation.org/index.php/Unlicensed_Concealed_Carry), such written permission would not be sufficient. Your friend would have to have a possessory interest in the workplace - he must have the right to exclude people from the workplace and the right to control activities there.

From the Wiki's quote of People v. Barela:
The legislative statement of purpose makes clear that an employee must have a possessory interest in his or her workplace in order for that workplace to be considered the employee's "place of business" under section 12026. Only those employees who have the right to exclude others from their workplace, and the right to control activities there, may carry concealed weapons at work without a permit or license.

ETA: And it's not yet clear (to me, at least) that having the right to do something is the same as being authorized to enforce another's will with respect to that other's exercise of their right. I wonder if "having standing" to sue based on an alleged infringement of such a right might help with the distinction.

dirtnap
10-18-2009, 10:14 AM
Based on the current contents of the Wiki (http://wiki.calgunsfoundation.org/index.php/Unlicensed_Concealed_Carry), such written permission would not be sufficient. Your friend would have to have a possessory interest in the workplace - he must have the right to exclude people from the workplace and the right to control activities there.

From the Wiki's quote of People v. Barela:
The legislative statement of purpose makes clear that an employee must have a possessory interest in his or her workplace in order for that workplace to be considered the employee's "place of business" under section 12026. Only those employees who have the right to exclude others from their workplace, and the right to control activities there, may carry concealed weapons at work without a permit or license.

He is the night manager, so he does have the ability to exclude people from the workplace(send them home, etc). He does control all the activities there during his shift, as he is the most senior employee, besides his GM who works in the AM. Is that enough to fit the definition of possessory interest?

donstarr
10-18-2009, 10:24 AM
He is the night manager, so he does have the ability to exclude people from the workplace(send them home, etc). He does control all the activities there during his shift, as he is the most senior employee, besides his GM who works in the AM. Is that enough to fit the definition of possessory interest?

I don't know.

I would say "no". I would say that he has been "authorized" to enforce someone else's will with respect to that other's exercise of their rights, but does not actually have those rights himself.

My opinion is based on my own distinction between having a right to do something and merely being authorized to do that thing on behalf of someone else. (I sometimes consider our Constitution: certain "powers" are granted to our federal government, but I don't think the "rights" behind those powers have been conveyed.)

ETA: I think "right" is a pretty strong word. I don't think a "right" is easily transferred or shared, especially not by something like an employer's order to an employee "keep [some class of] people out".

hoffmang
10-18-2009, 10:56 AM
If he can call the cops and have them removed, he has the right to exclude people. The right to exclude is certainly delegable by the owner, manager, etc.

Remember that in the case that I've posted on the wiki, the guy was not an employee of the restaurant and didn't receive permission from a person who could grant that permission. The Legislature clearly intended that a convenience store worker on the night shift should clearly have the proper possessory interest.

-Gene

donstarr
10-18-2009, 11:10 AM
If he can call the cops and have them removed, he has the right to exclude people.
He has the authority to exclude people. I still see a distinction between that authority and the associated "right".
The right to exclude is certainly delegable by the owner, manager, etc.
Agreed. However, I think it requires much more than merely granting someone the authority to exclude certain people; I think it would require an explicit assignment (or some form of "sharing") of the right.
The Legislature clearly intended that a convenience store worker on the night shift should clearly have the proper possessory interest.
If so, the Barela court misinterpreted it. They clearly used the word right (twice), when the [presumed?] legislative intent was delegated authority.

The authority to do a thing is most certainly not the same as the right to do a thing.

donstarr
10-18-2009, 11:21 AM
The Legislature clearly intended that a convenience store worker on the night shift should clearly have the proper possessory interest.

I'm not so sure about that part. There's nothing prohibiting a convenience store worker, with authorization from his employer, from having a loaded firearm on the business' premises. Are you saying that the Legislature's intent was to allow him to carry that firearm concealed? If so, I don't see it in the statutes or the "statement of purpose" quoted in the Wiki.

The Legislature certainly didn't see fit to supply any new definition of "possessory interest" (i.e. they didn't say "owner's authorization to exclude constitutes a conveyance of the right to exclude", or anything similar). In the Wiki, the Legislature's statement only mentions a "proprietary, possessory, or substantial ownership interest in the place" - without further definitions of those terms.

Without such further definitions, I think "possessory interest" still requires the rights previously mentioned - rights that I do not think are assigned, conveyed, transferred, or shared by mere job description (i.e. without an explicit statement that the employee has those rights).

ETA: To me, the Legislature's explicit reference to "proprietary", "possessory", and "substantial ownership" interests strongly suggests that they were referring to business owners - not rank-and-file employees. If they'd really intended PC 12026 to apply to employees or agents, I would have expected language similar to PC 12031(h): "any person engaged in any lawful business, including a nonprofit organization, or any officer, employee, or agent authorized by that person". They certainly knew how to say that; if they meant to say it, why didn't they?

donstarr
10-18-2009, 11:31 AM
At least the above discussion of authority vs. right and the fact that "possessory interest" in a workplace is a prerequisite to calling that workplace your "place of business" have gotten us away from the erroneous presumption that "if you work there, it's your place of business".

GrizzlyGuy
10-18-2009, 3:29 PM
I'm pulling all of this together on the wiki: http://wiki.calgunsfoundation.org/index.php/Unlicensed_Concealed_Carry

Thanks Gene, that is excellent info. It cleared up a bunch of ambiguities for me.

FYI, I think you need a minor correction here (see strikethrough, a "not" needs to be removed):

"The court goes on to say that there is a distinction between "carrying" and "having" which has the effect of not letting one carry a loaded firearm in one's place of business or home where the area is not public and sums up it's argument with"

Or...

"The court goes on to say that there is a distinction between "carrying" and "having" which has the effect of not letting one carry a loaded firearm in one's place of business or home where the area is not public and sums up it's argument with"

hoffmang
10-18-2009, 4:59 PM
I'm not so sure about that part. There's nothing prohibiting a convenience store worker, with authorization from his employer, from having a loaded firearm on the business' premises. Are you saying that the Legislature's intent was to allow him to carry that firearm concealed? If so, I don't see it in the statutes or the "statement of purpose" quoted in the Wiki.


The Legislature amended 12026 which is an exception to 12025. If you were right they would have amended exceptions to 12031.

The Legislature's intent is clear and that is to allow properly authorized employees to loaded concealed carry in places that aren't quasi-public. Included in the allowed places would be a convenience store when the unlicensed CCW is done by an employee of that store. Remember that he could certainly throw a bum out of the store during his shift.

-Gene

hoffmang
10-18-2009, 5:01 PM
Thanks Gene, that is excellent info. It cleared up a bunch of ambiguities for me.

FYI, I think you need a minor correction here (see strikethrough, a "not" needs to be removed):

I fixed it a slightly different way, but fixed nonetheless. Thanks for the assist.

-Gene

donstarr
10-20-2009, 2:45 PM
The Legislature's intent is clear and that is to allow properly authorized employees to loaded concealed carry in places that aren't quasi-public. Included in the allowed places would be a convenience store when the unlicensed CCW is done by an employee of that store. Remember that he could certainly throw a bum out of the store during his shift.

Respectfully, I'll disagree that someone who "could certainly throw a bum out of the store during his shift" is somehow equivalent to someone "who has the right to deny access to anyone he pleases (absent some protected trait, such as race, religion, etc.)". The latter meets one of the criteria for possessory interest; the former is an employee charged with a bouncer's duties.

ETA: As a further distinction: the convenience store employee is likely authorized to eject (or deny access to) a few specific classes of people (the aforementioned "bums", rowdy groups, schoolchildren carrying backpacks, etc.). I find it extremely unlikely that the employee would somehow be invested with all of the access control rights that the owner has: deny access to anyone you please, at any time, for any reason, as long as the reason isn't based on a protected trait. If the employee doesn't have that broad "right" (along with, of course, the right to control activities on the premises), he doesn't have possessory interest.

As I've mentioned before, I see a significant difference between the "authority" to do a thing and the "right" to do that thing. While some judge may find that those two concepts are, in fact, equivalent with respect to the application of PC12026, I certainly wouldn't want to be the defendant in a test case.

Of course, if there is case law (or statute) that says otherwise for California, I will certainly recant.

ETA 2: As far as what the Legislature "intended" with respect to PC 12026... I look at the People v. Barela quote in the Wiki, where the court described their interpretation of that intent. To paraphrase: "You must have a possessory interest in your workplace in order for it to be your "place of business" ... Only employees that have the right to exclude others from the place and the right to control the activities in the place may carry concealed weapons there without a permit or license".

donstarr
10-20-2009, 5:10 PM
Oh...

Also note that 12026 mentions nothing about "permission to carry". If Gene is correct when he says that the Legislature intended to permit the convenience store employee to carry concealed, then the business owner would have no way to control that carrying, short of terminating employment.

If I'm reading Gene's posts correctly, he's saying that leaving any employee alone on the premises and giving him limited authorization to control access to the property automatically gives him "PC 12026 permission" to carry a concealed firearm. Even if the employer / business owner didn't want the employee to carry, there is no problem as long as he's employed (since "permission" isn't required for the 12026 exception to 12025) and stays out of "public places" (avoiding 12031, where the exception does require employer authorization).

Somehow, I doubt that it was the Legislature's intent to equate "don't let kids with backpacks enter the store" with "you can carry a concealed firearm".

dantodd
10-20-2009, 5:30 PM
ETA 2: As far as what the Legislature "intended" with respect to PC 12026... I look at the People v. Barela quote in the Wiki, where the court described their interpretation of that intent. To paraphrase: "You must have a possessory interest in your workplace in order for it to be your "place of business" ... Only employees that have the right to exclude others from the place and the right to control the activities in the place may carry concealed weapons there without a permit or license".

But is not being the only person on duty at a place of business and having the right to make the place quasi-public by exclusion of individuals the definition of possessory interest? After all you are acting as the possessor of the property if you are given autonomy to control entry. Now, unless the gas station owner says, call me anytime someone "fishy" comes in and I'll decide if they should be kicked out it is the right of the employee to make these decisions. That's isn't to say that the employee won't get fired if he starts excluding the wrong people and the employer finds out. But to suggest that he doesn't have possessory interest because he is still responsible to an employer is tantamount to saying he doesn't have the right to open the cash register because if he stole money (or recklessly gave too much change) he could be fired.

That being said, it is quite interesting to hear the new interpretation of "place of business" it is not one I had run across. CalGuns is great for learning things like that. It's also interesting to know that "place of business" is usually interpreted as I thought and the legislature actually did something to make it not mean what it used to mean.

hoffmang
10-20-2009, 7:38 PM
donstarr,

There is no way you can reasonably argue that an actual employee wasn't the individual that the legislature was attempting to allow to Concealed Carry in his employment premises. Why else did the legislature rewrite 12026 and issue the signing statement in question? Your interpretation creates a nullity.

Barela was not an employee of the establishment in question and hence you are drawing too much from his loss.

-Gene

donstarr
10-21-2009, 7:25 AM
donstarr,

There is no way you can reasonably argue that an actual employee wasn't the individual that the legislature was attempting to allow to Concealed Carry in his employment premises.
If the employee was the individual that the legislature was trying to exempt in their 1989 changes to 12026, I would have expected them to say that explicitly. The language was certainly available to them - they'd used it in 12031:
Nothing in this section shall prevent any person engaged in any lawful business, including a nonprofit organization, or any officer, employee, or agent authorized by such person for lawful purposes connected with such business, from having a loaded firearm within such person's place of business
To me, that looks like a pretty reasonable argument that the legislature wasn't including "authorized employees": they said it elsewhere but chose not to say it in 12026; if they didn't say it, they didn't mean it. Even in their statement of intent, they didn't say they meant to include such other people.

Why else did the legislature rewrite 12026 and issue the signing statement in question? Your interpretation creates a nullity.
I don't seem to be able to access the full text of the Melton decision. What, exactly, did the court say about 12026? From snippets I've been able to find, it looks like they said something along the lines of "PC 12026 does not create any exceptions to 12025's permit requirement", without necessarily mentioning business owners or their agents/employees. The Melton court seems to be saying (again, from what I've been able to find), that a permit or license could still be required of a business owner before he carries a concealed firearm.

The legislature's reworded 12026, along with their statement of intent, fixes that: they explictly say that the reason for the change is to abrogate just that holding in Melton, and that no license or permit shall be required for "an individual who has a proprietary, possessory, or substantial ownership interest in the place". That doesn't look like a "nullity" - prior to the 1989 change and the legislature's statement of intent, the Melton court had (I think) said that a business owner would still need a permit; after 1989, he doesn't.

I think too much is being read into the legislature's statement of intent. They didn't say "or that individual's authorized agents or employees", though they certainly could (should?) have.

Barela was not an employee of the establishment in question and hence you are drawing too much from his loss.

I've tried to omit any reference to the fact that Barela lost from my comments - I don't think it's relevant. I've made an effort to only refer to Barela insofar as that court interpreted the legislature's statement of intent, as quoted in the Wiki. That court also didn't explicitly mention "authorized employees" - just those who have a possessory interest in the place.

donstarr
10-21-2009, 9:53 AM
Section 107 of the Revenue and Taxation Code defines the term:

107. "Possessory interests" means the following:
(a) Possession of, claim to, or right to the possession of land or
improvements that is independent, durable, AND exclusive of rights
held by others in the property, except when coupled with ownership of
the land or improvements in the same person. For the purposes of
this subdivision:
(1) "Independent" means the ability to exercise authority and
exert control over the management or operation of the property or
improvements, separate and apart from the policies, statutes,
ordinances, rules, and regulations of the public owner of the
property or improvements. A possession or use is independent if the
possession or operation of the property is sufficiently autonomous to
constitute MORE THAN A MERE AGENCY.
(2) "Durable" means for a determinable period with a reasonable
certainty that the use, possession, or claim with respect to the
property or improvements will continue for that period.
(3) "Exclusive" means the enjoyment of a beneficial use of land or
improvements, together with the ability to exclude from occupancy by
means of legal process others who may interfere with that enjoyment.
For purposes of this paragraph, "exclusive use" includes the
following types of use in property:
(A) Sole occupancy or use of property or improvements.
(B) Use as a cotenant.
(C) Concurrent use by a person who has a primary or prevailing
right to use property or improvements at any time.
(D) Concurrent uses by persons making qualitatively different uses
of property or improvements.
(E) Concurrent use by persons engaged in similar uses that
diminish the quantity or quality of the property or improvements.
(F) Concurrent use that does not diminish the quantity or quality
of the property or improvements, if the number of those concurrent
use grants is restricted.
A use of property or improvements that does not contain one of the
elements in subparagraphs (A) to (F), inclusive, shall be rebuttably
presumed to be a nonexclusive use.

(emphasis added)

Based on that statutory definition, does the business owner's agent (his employee) have a possessory interest in the property?

I interpret the emphasized portion of paragraph (a)(1) to mean that someone must be able to exert autonomous control over the property, and not merely as an agent of someone else. An employee cannot do that. By definition, any "autonomy" that an employee might have is limited by the fact that he is an agent of the business owner.

It looks like this Section was changed to the above form in 1995: http://www.caltax.org/research/sb657-2.htm#III , with the intent (?) of codifying the common law interpretation of the term "possessory interest". Sure, this was 6 years after the changes (and associated statement of intent) to PC 12026, but shouldn't we presume that the legislature, in 1989, was using the "common law" interpretation that they later codified? If the SB 657 changes were altering the legislature's own definition of "possessory interest" as that term was used elsewhere (e.g. PC12026), wouldn't they have also gone back and changed those other statutes? Since they didn't go back and change those other statutes, doesn't the term, as used in PC12026, mean what it says above?

Or, is it somehow reasonable to believe that the term "possessory interest", though it's explicitly defined in the Revenue and Taxation Code, has a different meaning in the Penal Code? (And if so, why?)

donstarr
10-21-2009, 11:02 AM
But is not being the only person on duty at a place of business and having the right to make the place quasi-public by exclusion of individuals the definition of possessory interest? After all you are acting as the possessor of the property if you are given autonomy to control entry.

According to the statutory definition of "possessory interest" in R&TC Section 107 quoted above, your right to control the property is "independent" if it's sufficiently autonomous to constitute more than a "mere agency". Lacking such independence, you don't have possessory interest.

ETA: I realize that the legislature's use of the word "if" in R&TC 107(a)(1) quoted in post #88 above is not the same as "if and only if". That is, they said "A if B", which is not logically the same as "A if and only if B". However, I think that distinction would probably be insufficient to convince a judge. If it has not already been decided in a California court, I would bet everything in my safe that a judge would say either a) the legislature really meant "if and only if" or b) the statute shall be interpreted as if the legislature really had said that.

KylaGWolf
10-21-2009, 8:34 PM
If your friend has permission from the owner of the company to carry a weapon at work then that friend can legally do so loaded open carry (LOC). I do hope that if your friend is going to carry a gun at work they know how to use it and can do so if needed. Has that friend thought of what situations that he or she would use the weapon? Have they considered the aftermath of using said weapon? And are they prepared to having to deal with LEO and other legal officials if they use said weapon? Those are things to consider before they carry a gun.

hoffmang
10-21-2009, 8:54 PM
To me, that looks like a pretty reasonable argument that the legislature wasn't including "authorized employees": they said it elsewhere but chose not to say it in 12026; if they didn't say it, they didn't mean it. Even in their statement of intent, they didn't say they meant to include such other people.

I don't seem to be able to access the full text of the Melton decision. What, exactly, did the court say about 12026?

Melton was an employee at a convenience store. The legislature said:

The purpose of enacting this measure is to abrogate the holding in People v. Melton, 206 Cal.App.3d 580, insofar as that decision purports to require the issuance of a concealed weapons permit in order to carry a pistol, revolver, or other firearm capable of being concealed upon the person, whether openly or concealed, within the places mentioned in Section 12026 of the Penal Code, by an individual who has a proprietary, possessory, or substantial ownership interest in the place.


A possessory interest is not a pecuniary interest. If I leave you on duty as the major shareholder of a business, you have a possessory interest in that you can eject folks.

You really need to just register for findlaw. The link to Melton is below.
http://login.findlaw.com/scripts/callaw?dest=ca/calapp3d/206/580.html

-Gene

locosway
10-21-2009, 9:31 PM
It's sad when we're more worried about legal trouble after shooting someone in self defense than anything else.

KylaGWolf
10-22-2009, 11:36 AM
It's sad when we're more worried about legal trouble after shooting someone in self defense than anything else.

Yeah I know. But at the same time better to think of it before the fact and know how you will react then that nasty surprise when it actually happens. At the Front Sight course I took recently they suggested you write a letter stating what your training has been. In what situation you would shoot someone in self defense. And send it to yourself registered mail, then lock it away in a safe place unopened so if for some reason you ever find yourself having to defend yourself in court it could come in handy.

KylaGWolf
10-22-2009, 11:42 AM
Donstar In every retail business I have worked in I have had the right to refuse service and ask anyone to leave the store if I have to. Even when my boss was not physically in the store. If they would not leave the store I had the legal right to have them removed by the police. Unfortunately the last three places I worked for had an anti-weapon policy in their business so my choices were limited.

locosway
10-22-2009, 2:39 PM
I'm just saying that it's sad that we consider not carrying a gun in our own business/home simply for fear of wrongful prosecution in a self defense scenario.

donstarr
10-23-2009, 9:48 AM
Donstar In every retail business I have worked in I have had the right to refuse service and ask anyone to leave the store if I have to. Even when my boss was not physically in the store. If they would not leave the store I had the legal right to have them removed by the police.

You had the authority to have them removed, where that authority was derived from your being an authorized agent of the business owner. The right to have someone removed lies (and remains) with the business owner.

Whether such authority means you have "possessory interest" is where Gene and I disagree. Gene maintains that it does. I say it doesn't; I base my position on our legislature's definition of possessory interest (i.e. your control of the property must be "independent"; it's independent if you are sufficiently autonomous that you are not merely an agent), as well as my own (perhaps incorrect) distinction between the concepts of "right" and "authority".

Without commenting on the result of the case (it's irrelevant here): the Barela court, interpreting the legislature's 1989 statement of purpose, used the word "right", not "authority". I presume that the judges were familiar with both terms and had a reason for choosing one over the other.
The legislative statement of purpose makes clear that an employee must have a possessory interest in his or her workplace in order for that workplace to be considered the employee's "place of business" under section 12026. Only those employees who have the right to exclude others from their workplace, and the right to control activities there, may carry concealed weapons at work without a permit or license. (emphasis added)

Of course, if we define "authority" to mean the same as "right", then all of this is moot. I, however, am not willing to make that leap.

hoffmang
10-23-2009, 6:22 PM
Of course, if we define "authority" to mean the same as "right", then all of this is moot. I, however, am not willing to make that leap.

Remember that in that case Mr. Barela was not even an employee of the "place of business."

-Gene

donstarr
10-24-2009, 10:27 AM
Remember that in that case Mr. Barela was not even an employee of the "place of business."

Neither the legislature's statement of purpose nor how the Barela court interpreted that statement depended on Mr. Barela's employment status or any other facts of the case. The court was describing only the state of the law, without [yet] commenting on that law's application to the case.

There's nothing in the opinion to suggest that the court's statement of the law would have been any different with any other appellant or any other facts. The end result may have been different, but the law itself, as announced by those two sentences quoted in the Wiki, would be the same.

hoffmang
10-24-2009, 11:39 AM
Neither the legislature's statement of purpose nor how the Barela court interpreted that statement depended on Mr. Barela's employment status or any other facts of the case. The court was describing only the state of the law, without [yet] commenting on that law's application to the case.

There's nothing in the opinion to suggest that the court's statement of the law would have been any different with any other appellant or any other facts. The end result may have been different, but the law itself, as announced by those two sentences quoted in the Wiki, would be the same.

Not true. The court did not at all interpret the newly passed statute in a situation where the person cited was an employee in his place of business with proper authority. Barela was not even close to the types of concealed loaded carry being discussed above. Barela means that you can't be a faux security guard cause your buddy that works at Taco Bell tells you you have permission to carry in the Taco Bell where he works.

You probably should read the statement of facts in Barela again.

-Gene

donstarr
10-24-2009, 2:51 PM
I did go back and read the entire Barela appellate opinion. I still don't agree that the court's interpretation of the legislature's statement of purpose is somehow limited or restricted by the facts of that case. (In fact, based solely on the text of the Barela decision (http://login.findlaw.com/scripts/callaw?dest=ca/calapp3d/234/supp15.html&search=206), I cannot agree that Mr. Barela was not an employee, given the references to services and compensation in the testimony and the lack of any testimony or decision that contradicted such an "employee" status. Had I been on the original jury, if I'd only heard testimony as described in the appellate opinion statement of facts, and had I been asked to decide Mr. Barela's "employment status", I likely would've determined that Mr. Barela was an employee.)

In any event, I must remove myself from this discussion. We seem to be going back and forth with the same or substantially similar arguments ad nauseum, with no agreement in sight. I do not see any point in repeating those same arguments again and again until the heat death of the universe - in the short term, I'm sure we both have better ways to spend our limited time (personally, I have some CPU and DSP pinouts I need to finish up by Monday A.M. Tokyo time, then I need to get moving on the next several months of coding). Perhaps a California (or higher) court will resolve the issue for us (and if that happens, I sincerely hope that they say I'm wrong). Better yet, maybe California (or, again, higher) law will change in other ways that make the entire discussion moot.

Respectfully, though, and without further comment on the merits of the arguments, I would suggest that the Calguns Wiki, for the present, not state that "most employees and at most places of business can carry a concealed loaded firearm as long as they have the actual permission of someone entitled to grant that permission to exclude others and control activities", unless the person who wrote that text (or the CGF itself) is willing to provide legal representation if or when someone who subscribes to that idea gets nailed for a[n alleged] PC12025 violation, and then provide for that someone's family if he's convicted and incarcerated.

Speaking of the Wiki (http://wiki.calgunsfoundation.org/index.php/Unlicensed_Concealed_Carry)... I respectfully submit that the very last sentence on the linked page should probably use the word "carry" instead of "conceal". Presuming that whole bottom section entitled "Semi Public Places Restrictions" is referring to PC12031, it would be hard enough to defend against a 12031 charge if you're carrying a loaded firearm in such a public place, without having the added complication of carrying it concealed.

-Don

hoffmang
10-24-2009, 5:45 PM
I did go back and read the entire Barela appellate opinion. I still don't agree that the court's interpretation of the legislature's statement of purpose is somehow limited or restricted by the facts of that case. (In fact, based solely on the text of the Barela decision (http://login.findlaw.com/scripts/callaw?dest=ca/calapp3d/234/supp15.html&search=206), I cannot agree that Mr. Barela was not an employee, given the references to services and compensation in the testimony and the lack of any testimony or decision that contradicted such an "employee" status. Had I been on the original jury, if I'd only heard testimony as described in the appellate opinion statement of facts, and had I been asked to decide Mr. Barela's "employment status", I likely would've determined that Mr. Barela was an employee.)


What do you do with the fact that the person who could authorize concealed carry in the restaurant didn't (emphasized)

At trial Christopher Ware, a Zim's manager, testified that appellant provided security at Zim's in exchange for free or discounted meals. Leonard Peoples testified that he and appellant entered into an oral agreement with John Yupango, an assistant manager at Zim's, to provide security there. Peoples also testified that Yupango authorized him and appellant to carry a gun.

The prosecution called Officer Racinos, who testified that Yupango told him that appellant did not work as a security guard at Zim's. The prosecution also called Donald Jong, the general manager at Zim's, who testified that Yupango believed that appellant was a police officer. Jong further testified that Yupango did not have the authority to decide who could carry a gun in the restaurant.


Respectfully, though, and without further comment on the merits of the arguments, I would suggest that the Calguns Wiki, for the present, not state that "most employees and at most places of business can carry a concealed loaded firearm as long as they have the actual permission of someone entitled to grant that permission to exclude others and control activities", unless the person who wrote that text (or the CGF itself) is willing to provide legal representation if or when someone who subscribes to that idea gets nailed for a[n alleged] PC12025 violation, and then provide for that someone's family if he's convicted and incarcerated.
CGF stands ready to defend an employee at a fixed place of business who carries a loaded concealed weapon with permission of the company as correctly delegated.

Speaking of the Wiki (http://wiki.calgunsfoundation.org/index.php/Unlicensed_Concealed_Carry)... I respectfully submit that the very last sentence on the linked page should probably use the word "carry" instead of "conceal". Presuming that whole bottom section entitled "Semi Public Places Restrictions" is referring to PC12031, it would be hard enough to defend against a 12031 charge if you're carrying a loaded firearm in such a public place, without having the added complication of carrying it concealed.
Noted, agreed, and fixed.

-Gene

donstarr
10-25-2009, 10:25 AM
What do you do with the fact that the person who could authorize concealed carry in the restaurant didn't (emphasized)
I don't do anything with it, since I don't think it's relevant. If I thought "authorization" to do anything had anything at all to do with PC12026, it's likely that I would've agreed with you long ago and we wouldn't be having this discussion.

I think this is the root of our disagreement:

You believe that someone who is authorized to control access to a place of business has a possessory interest in that place and can now "claim a PC12026 exception" (please correct me if my interpretation of your position is incorrect).
I believe that possessory interest requires the right to exert control over a place, beyond merely acting as someone's (i.e. the owner's) "authorized agent". I don't believe that authority is the same as right. I believe that the exception described in PC12026 requires these rights.

The one statutory definition of "possessory interest" that I have been able to find in California law (at least, one that is not expressly limited to a particular code or section) says that the control must be independent, and it's independent if it goes beyond mere agency. (Revenue and Taxation Code 107(a))

The Barela court found that possessory interest required rights:
we find that the definition adequately conveyed the two essential components of a possessory interest in the context of section 12026: (1) the right to exclude others from using real property, and (2) the right to control activities occurring on real property. (See, e.g., Black's Law Dict. (5th ed. 1979) p.1049, col. 1 [defining possessory interest as the "Right to exert control over specific land to exclusion of others."].) (emphasis added)
If mere "authority" to exert control was sufficient, I would've expected either the court or Black's to say so. (Of course, this is based on my own view that "authority" and "right" are quite different concepts.)

Unless and until we can agree on what constitutes "possessory interest" in the context of PC12026, I think we're at an impasse. We could go back and forth forever, each saying the other is wrong, but, without some further statutory or judicial evidence, I don't see much point in such activity.

Respectfully,
-Don

hoffmang
10-25-2009, 3:29 PM
I believe that possessory interest requires the right to exert control over a place, beyond merely acting as someone's (i.e. the owner's) "authorized agent". I don't believe that authority is the same as right. I believe that the exception described in PC12026 requires these rights.

We differ here. Authority and right are interchangeable in this instance. Otherwise, the Legislature's amendment in 1989 was a futile act.

-Gene

bigcalidave
10-25-2009, 11:53 PM
CGF stands ready to defend an employee at a fixed place of business who carries a loaded concealed weapon with permission of the company as correctly delegated.

-Gene


Just saw this. Good to know!

donstarr
10-26-2009, 7:29 AM
We differ here. Authority and right are interchangeable in this instance. Otherwise, the Legislature's amendment in 1989 was a futile act.

No, it wasn't a futile act, even under my definition. In 1989, the legislature added concealed. Prior to that, PC12026 only permitted "owning, possessing, keeping, or carrying".

As of January 1, 1989, PC12026 didn't expressly permit me to carry, concealed, a firearm in my residence. After the 1989 amendment, it does.

donstarr
10-26-2009, 12:00 PM
I think we can focus solely on Barela (http://login.findlaw.com/scripts/callaw?dest=ca/calapp3d/234/supp15.html&search=206):


At trial Christopher Ware, a Zim's manager, testified that appellant provided security at Zim's in exchange for free or discounted meals.
Leonard Peoples testified that he and appellant entered into an oral agreement with John Yupango, an assistant manager at Zim's, to provide security there.
Peoples also testified that Yupango authorized him and appellant to carry a gun.
The prosecution called Officer Racinos, who testified that Yupango told him that appellant did not work as a security guard at Zim's.
The prosecution also called Donald Jong, the general manager at Zim's, who testified that Yupango believed that appellant was a police officer.
Jong further testified that Yupango did not have the authority to decide who could carry a gun in the restaurant.

From (1) and (2), Mr. Barela was an "employee". Neither (3), (4), (5), nor (6) contradicts that.

(4) only disputes duties of employment - it does not dispute the employment itself.

(4) is second-hand information from an assistant manager. (1) carries substantially more weight, given that it is direct testimony from a manager.

(3) and (6) are irrelevant. PC12026 says absolutely nothing about "permission to carry a gun". No such permission is required for PC12026 to apply.

(5) is irrelevant. It only goes to Mr. Barela's misrepresentation of his qualifications for employment, not the employment itself. (ETA: and that's only if you both believe and care about Jong's testimony about Yupango's beliefs.)

The Barela court never found that either a) Mr. Barela was not an employee or b) that Mr. Barela was not employed as a security guard. At least, no such finding is evident in the appellate court's opinion. If we look at the referenced testimony, and believe the manager's corroborated testimony over second-hand, uncorroborated information from an assistant manager, Mr. Barela was, in fact, employed as a security guard at Zim's.

Mr. Barela may have misrepresented his qualifications (i.e. by claiming to be, or allowing someone to believe he was, a law enforcement officer), but that only lets the employer terminate employment - it doesn't change PC12026's potential application while he was so employed.

Nonetheless, the Barela court found that PC12026 did not grant Mr. Barela any exception to PC12025.

If you were correct, Gene, Mr. Barela should (would) have been exonerated, either by the original jury or by the appellate panel. He was employed as a security guard which, according to how I've read your definition of the term, gave him a "possessory interest" in the business.

Unless, of course, either the municipal court jury or the appellate court panel found that Mr. Barela was not "employed as a security guard". I don't see such information in the appellate text, though.

hoffmang
10-28-2009, 5:07 PM
Mr. Barela had not contract, and no withholding. He had none of the standard indicia of employment. He's not an employee.

-Gene

hoffmang
10-28-2009, 5:08 PM
As of January 1, 1989, PC12026 didn't expressly permit me to carry, concealed, a firearm in my residence. After the 1989 amendment, it does.

It was by definition an exemption to the ban on concealment at 12/31/1988.

-Gene