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Theseus
10-15-2009, 4:15 PM
While doing some research for my case I re-read People v. DeLong where the court ruled that 12031(e) is constitutional. It has been argued that because of that ruling we can't do anything about it, but this is what I think.

The court in DeLong said that 12031(e) is constitutional because it is not a search, but an inspection. That being the case, since we are in fact being detained as a result of 12031, can we then challenge the constitutionality again?

loather
10-15-2009, 4:44 PM
I think you may be on to something here. It's definitely a case that should wait until after the Supremes rule on the issue of second amendment incorporation, however, as it makes the case even stronger (even though this is largely a 4th amendment case).

boxbro
10-15-2009, 4:52 PM
While doing some research for my case I re-read People v. DeLong where the court ruled that 12031(e) is constitutional. It has been argued that because of that ruling we can't do anything about it, but this is what I think.

The court in DeLong said that 12031(e) is constitutional because it is not a search, but an inspection. That being the case, since we are in fact being detained as a result of 12031, can we then challenge the constitutionality again?

It sounds like they just made up the inspection bit to fit their desired ruling.
A car can have unlocked handguns in it but without probable cause they can't "inspect" your car to see if it does.
A gun can have ammunition loaded in it but without probable cause they shouldn't be able "search" your gun to see if it does.
If their BS inspection explanation held any water then they could apply it to cars and without probable cause they could search any car they want and just call it an inspection.
I don't know much about law but it seems to me that the ruling itself could be challenged.

stix213
10-15-2009, 4:58 PM
I'm not a lawyer, but I suspect that as long as DUI checkpoints are legal, a 12031 inspection will remain legal for similar reasons.

locosway
10-15-2009, 5:06 PM
I'm not a lawyer, but I suspect that as long as DUI checkpoints are legal, a 12031 inspection will remain legal for similar reasons.

No, because driving is a privilege which people often confuse with a right. There's no way to equate vehicles with guns.

snobord99
10-15-2009, 5:45 PM
You can always challenge a previous ruling in a new case. But I don't think that was your question. From my reading, you're asking if challenging 12031(e) as being unconstitutional on its face is worthwhile in light of the de Long ruling. I would say no if you're looking to have the statute declared unconstitutional. If you're just looking for an unconstitutional as applied win, then yes, I can definitely see that happening (something like People v. Kern, 93 Cal. App. 3d 779, although they basically said that 12031(e) didn't actually apply, this is the scenario I'm imagining where the prosecution makes the 12031(e) claim).

locosway
10-15-2009, 5:59 PM
The idea is to get LOC and then 12031 is invalid.

demnogis
10-15-2009, 6:02 PM
12031(e) is the equivalent of saying that it is OK for law enforcement to search your house for something like, say, a VHS copy of National Lampoon's Vacation, because they are looking for one (1) specific thing per the law. So, it's not really a "search" but an "inspection. But, LE can still keep you detained, possibly handcuffed on the curb (for officer safety), since the scope of their "inspection" is refined to just a copy of the tape so it's not really a search.

I know I'm being circular in my description, because that's how stupid saying 12031(e) checks are constitutional.

No, because driving is a privilege which people often confuse with a right. There's no way to equate vehicles with guns.

locosway
10-15-2009, 6:13 PM
12031(e) is the equivalent of saying that it is OK for law enforcement to search your house for something like, say, a VHS copy of National Lampoon's Vacation, because they are looking for one (1) specific thing per the law. So, it's not really a "search" but an "inspection. But, LE can still keep you detained, possibly handcuffed on the curb (for officer safety), since the scope of their "inspection" is refined to just a copy of the tape so it's not really a search.

I know I'm being circular in my description, because that's how stupid saying 12031(e) checks are constitutional.

No, because in public there is no expectation of privacy. Also, by displaying a gun, there is no searching needed to determine if there is indeed a gun. Now, with the current law, it's illegal to carry a loaded gun in public. The way to determine that, is to check the gun. Now, I agree that them doing so is akin to considering a person guilty until proven innocent. So perhaps there's legal merit if one were to go that route. However, it's no where near the same as a DUI checkpoint or people coming into your house.

bigcalidave
10-15-2009, 6:16 PM
I'm not a lawyer, but I suspect that as long as DUI checkpoints are legal, a 12031 inspection will remain legal for similar reasons.

I'm pretty sure you are allowed to not go through a dui checkpoint. Once you go through it, you are voluntarily agreeing to their search.

demnogis
10-15-2009, 6:24 PM
I thought we were talking about 12031(e) being a 4A violation? It is, yes? It's giving LE a free pass to "search" your person and your property without a warrant or probable cause.

Maybe I should have used a better analogy. A new law is passed, 13031 saying basically that possession of anything OTHER than tobacco in a smoking pipe in public is illegal. 13031(e) says that police have the authority to "inspect" anyone's pipe in public to make sure that it has nothing but regular smoking tobacco in it. The court affirms this because it's not really a search, but an "inspection" of your pipe. Then the fishing expedition begins.

Clear search for something without PC or a warrant. The law is "self-validating" and still a 4A violation.

No, because in public there is no expectation of privacy. Also, by displaying a gun, there is no searching needed to determine if there is indeed a gun. Now, with the current law, it's illegal to carry a loaded gun in public. The way to determine that, is to check the gun. Now, I agree that them doing so is akin to considering a person guilty until proven innocent. So perhaps there's legal merit if one were to go that route. However, it's no where near the same as a DUI checkpoint or people coming into your house.

steadyrock
10-15-2009, 6:35 PM
I'm pretty sure you are allowed to not go through a dui checkpoint. Once you go through it, you are voluntarily agreeing to their search.

Bingo, that's why they announce them in the newspaper. The theory is you had a reasonable chance to see the public notice, so therefore you chose to go through the checkpoint. 12031 "inspections" are not so announced.

locosway
10-15-2009, 6:44 PM
I thought we were talking about 12031(e) being a 4A violation? It is, yes? It's giving LE a free pass to "search" your person and your property without a warrant or probable cause.

Maybe I should have used a better analogy. A new law is passed, 13031 saying basically that possession of anything OTHER than tobacco in a smoking pipe in public is illegal. 13031(e) says that police have the authority to "inspect" anyone's pipe in public to make sure that it has nothing but regular smoking tobacco in it. The court affirms this because it's not really a search, but an "inspection" of your pipe. Then the fishing expedition begins.

Clear search for something without PC or a warrant. The law is "self-validating" and still a 4A violation.

Pipes are for smoking tobacco. That's their original purpose. Guns are designed to shoot bullets. Now, if a gun was designed to make flowers, but could also shoot bullets then I think we could equate it to a pipe.

As for a DUI checkpoint. I don't know of anything that requires them to announce their setup. Here they setup the warning signs, but not until there's no legal place to make a U-turn. So motor cops wait and then that gives them PC to stop you when you break the law.

snobord99
10-15-2009, 6:52 PM
No, because in public there is no expectation of privacy. Also, by displaying a gun, there is no searching needed to determine if there is indeed a gun. Now, with the current law, it's illegal to carry a loaded gun in public. The way to determine that, is to check the gun. Now, I agree that them doing so is akin to considering a person guilty until proven innocent. So perhaps there's legal merit if one were to go that route. However, it's no where near the same as a DUI checkpoint or people coming into your house.

Correction: lower (than in your house) expectation of privacy, not no expectation of privacy.

locosway
10-15-2009, 7:03 PM
Correction: lower (than in your house) expectation of privacy, not no expectation of privacy.

We're talking about an exposed firearm, not the contents of your wallet. One can't assume privacy when attaching a gun to their hip in plain view.

snobord99
10-15-2009, 7:05 PM
We're talking about an exposed firearm, not the contents of your wallet. One can't assume privacy when attaching a gun to their hip in plain view.

I'm sorry. I misread. I was thinking a car, not the public in general which is what you're talking about.

bodger
10-15-2009, 7:06 PM
I'm not sure if the court ever said it would be as good as being voluntary, but you are correct. You're not required to go through unless you've hit the point of no return (past any escape routes). Generally, from what I've seen, the checkpoint will be announced maybe 1/4 mile before the actual check and they'll have a few (maybe 3) "escape routes" that you can take to avoid the check point. These escape routes was one of 7 factors (if I remember that case correctly) the court considered in determining the constitutionality of DUI checkpoints. At the end of the day, and as we all know, they were found to be constitutional, but since the escape routes were only 1 of 7 factors, I can't say that it would automatically be unconstitutional if no escape routes were provided.

Just keep in mind that most of the LEO I've talked to have indicated/implied that if anyone actually utilizes an escape route, someone will follow them for a short distance (which is perfectly legal) and see if the driver was in fact drunk.


Any time I have gone through a DUI checkpoint, the officers used the "assumptive question" of: "Good evening Sir. How much have you had to drink tonight?"

That always kind of ticked me off. I virtually never drink and drive now, almost never have in the past, and never close to enough to put me near the limit, even in the earlier days when the limit was higher.

Maybe just coincidence, but Ill bet they are trained to ask that way.

BigDogatPlay
10-15-2009, 7:23 PM
We're talking about an exposed firearm, not the contents of your wallet. One can't assume privacy when attaching a gun to their hip in plain view.

^^^This^^^

Carrier in a public place, with a firearm in plain view (AKA open carry) there is no search and no REP either. The eye of the police officer can not trespass. The "inspection" is to determine if, in fact, there is a crime taking place... loaded firearm in a public place.

Not loaded... no crime, carrier goes on his way.

Comparing 12031(e) check to a DUI checkpoint is very much apples and oranges, IMO.

locosway
10-15-2009, 7:24 PM
Any time I have gone through a DUI checkpoint, the officers used the "assumptive question" of: "Good evening Sir. How much have you had to drink tonight?"

That always kind of ticked me off. I virtually never drink and drive now, almost never have in the past, and never close to enough to put me near the limit, even in the earlier days when the limit was higher.

Maybe just coincidence, but Ill bet they are trained to ask that way.

Of course they are. It's a fishing expedition.

I rarely even drink alcohol and if I'm driving I will not have anything to drink within 2 hours of my leaving.

unusedusername
10-15-2009, 8:18 PM
While doing some research for my case I re-read People v. DeLong where the court ruled that 12031(e) is constitutional. It has been argued that because of that ruling we can't do anything about it, but this is what I think.


Calling something an inspection does not make it pass constitutional muster with regards to the 4th.

Building inspectors and fire inspectors perform inspections. They are not allowed to enter a building to inspect it without permission or a warrant. The word game of "search" vs "inspection" has already been hashed out in this arena... Don't ask me for court cases, but I have dealt with a bunch of building inspectors recently....

Theseus
10-15-2009, 9:20 PM
What I am talking about is that 12031(e) was, in the DeLong case, ruled constitutional because it was not a search. It was an inspection with a singular scope and purpose.

Since in my case, and others, they are actually not being used as a singular purpose and are using 12031(e) to conduct detentions, searches and seizures. Being that 12031(e) is in action being used as RAS to conduct searches I believe that it should be ruled unconstitutional.

BigDogatPlay
10-15-2009, 9:32 PM
If the 12031(e) check was bootstrapped into a restrained detention, then that is another kettle of fish. The 12031 check is not a reasonable cause to detain.

Can't you simply attack the detention on that basis without trying to re-examine 12031?

Not picking a fight... just wondering.

locosway
10-15-2009, 10:00 PM
What I am talking about is that 12031(e) was, in the DeLong case, ruled constitutional because it was not a search. It was an inspection with a singular scope and purpose.

Since in my case, and others, they are actually not being used as a singular purpose and are using 12031(e) to conduct detentions, searches and seizures. Being that 12031(e) is in action being used as RAS to conduct searches I believe that it should be ruled unconstitutional.


Won't work. Anything that's going to take away the ability of an officer to question someone carrying a gun won't pass. It's already bad enough we can "legally" carry a gun on our hips.

Any court in their right mind would simply state that officers need either more training, or on an individual basis need to be reprimanded for violating ones rights during a routine inspection. However, with the current state of CA, it's likely that they would question anyone who carries an unloaded gun around on their hip.

HondaMasterTech
10-15-2009, 10:04 PM
There's no way to equate vehicles with guns.

Except maybe to say that more people kill other people with cars than with guns.

locosway
10-15-2009, 10:07 PM
Except maybe to say that more people kill other people with cars than with guns.

Comparisons such as that are fine, but putting a car and a gun on the same level will never fly. Although, it's funny that a right which kills less is more restricted than a privilege that kills more.

HondaMasterTech
10-15-2009, 10:08 PM
If the inspection is to make sure you are complying with the law then can't the same logic apply to an officer inspecting your house to make sure you are complying with any other law? Or, is it justified because the firearm is visible? But, then again, open carry is legal. Is the fact that you appear to be doing something legal grounds for probable cause to "inspect"? Does the inspection violate the 4th amendment?

HondaMasterTech
10-15-2009, 10:09 PM
Comparisons such as that are fine, but putting a car and a gun on the same level will never fly. Although, it's funny that a right which kills less is more restricted than a privilege that kills more.

Exactly. "But I need my car to get to Starbucks!" Yea? Well, I need my gun to STAY ALIVE!

locosway
10-15-2009, 10:13 PM
If the inspection is to make sure you are complying with the law then can't the same logic apply to an officer inspecting your house to make sure you are complying with any other law? Or, is it justified because the firearm is visible? But, then again, open carry is legal. Is the fact that you appear to be doing something legal grounds for probable cause to "inspect"? Does the inspection violate the 4th amendment?

Open carry is legal only when unloaded. Like I said before, a gun is made to be loaded and shoot. So, the assumption is that a gun is loaded, sound familiar? Cops assume, just as we do, that a gun is loaded. So flashing your Gat around on your hip prompts them to do an inspection.

I'm not sure what to compare this to, but I'll keep thinking about it.

HondaMasterTech
10-15-2009, 10:21 PM
Open carry is legal only when unloaded. Like I said before, a gun is made to be loaded and shoot. So, the assumption is that a gun is loaded, sound familiar? Cops assume, just as we do, that a gun is loaded. So flashing your Gat around on your hip prompts them to do an inspection.

I'm not sure what to compare this to, but I'll keep thinking about it.

To me the difference is about being safe and about abiding by the law. I treat my guns as if they were loaded, always. To be safe. Police officers want to check the gun to make sure you are complying with the law. To me, there is no probable cause. The fact that I have an item that is legal to have doesn't constitute a search. Of course, I would not fight a police officer who want's to inspect a gun and I am not a court of law or a lawyer for that matter but this is my take on things.

locosway
10-15-2009, 10:34 PM
To me the difference is about being safe and about abiding by the law. I treat my guns as if they were loaded, always. To be safe. Police officers want to check the gun to make sure you are complying with the law. To me, there is no probable cause. The fact that I have an item that is legal to have doesn't constitute a search. Of course, I would not fight a police officer who want's to inspect a gun and I am not a court of law or a lawyer for that matter but this is my take on things.

That's the thing though, no court has deemed it a search, only an inspection. Now, on what grounds they are authorized to conduct an inspection is beyond me. It IS a legal activity...

Anyone know what the legal definition of a search is?

locosway
10-15-2009, 10:42 PM
Per law.com:


search
v. 1) to examine another's premises (including a vehicle) to look for evidence of criminal activity. It is unconstitutional under the 4th and 14th Amendments for law enforcement officers to conduct a search without a "search warrant" issued by a judge or without facts which give the officer "probable cause" to believe evidence of a specific crime is on the premises and there is not enough time to obtain a search warrant. 2) to trace the records of ownership of real property in what is commonly called a "title search."

search and seizure
n. examination of a person's premises (residence, business or vehicle) by law enforcement officers looking for evidence of the commission of a crime, and the taking (seizure and removal) of articles of evidence (such as controlled narcotics, a pistol, counterfeit bills, a blood-soaked blanket). The basic question is whether the search and seizure were "unreasonable" under the 4th Amendment to the Constitution (applied to the states under the 14th Amendment), which provides: "The right of people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated." Thus, searches and seizures must be under the authority of a search warrant or when the officer has solid facts that give him/her "probable cause" to believe there was evidence of a specific crime on the premises but no time to get a warrant. Evidence obtained in violation of the Constitution is not admissible in court, nor is evidence traced through such illegal evidence.

unreasonable search and seizure
n. search of an individual or his/her premises (including an automobile) and/or seizure of evidence found in such a search by a law enforcement officer without a search warrant and without "probable cause" to believe evidence of a crime is present. Such a search and/or seizure is unconstitutional under the 4th Amendment (applied to the states by the 14th Amendment), and evidence obtained thereby may not be introduced in court.

So, search is clearly defined, and in all premises it's an investigation when PC exists and is only done when a search warrant is not time efficient in catching the crime.

However, inspect is not defined anywhere. Should we use the dictionary term as no court has defined it?

Inspect:
To examine carefully and critically, especially for flaws.

Inspection:
The act of inspecting.

pullnshoot25
10-16-2009, 8:52 AM
If officers followed their oath, we would never have any of these issues nor would I have to waste time getting internal affairs to discover that their guys have less mental training than the average 4 year old.

That said, until the 2A becomes a right and we can use Florida v JL and US v Dudley to legally castrate the government, we can't do much else besides discuss 12031 and its inherent flaws over coffee and crumpets.

locosway
10-16-2009, 9:01 AM
If officers followed their oath, we would never have any of these issues nor would I have to waste time getting internal affairs to discover that their guys have less mental training than the average 4 year old.

That said, until the 2A becomes a right and we can use Florida v JL and US v Dudley to legally castrate the government, we can't do much else besides discuss 12031 and its inherent flaws over coffee and crumpets.

The only way to get 12031 to go away is to get LOC.

dansgold
10-16-2009, 9:54 AM
As an aside, it's always confused me that you must - if you carry open/unloaded - also carry your ammunition and magazines in the open. To me, that opens 2 cans of worms:

1) Gun openly on one hip, loaded mags on the other ... LEGAL, but that really says "I am totally tactical and ready to rock if someone coughs too loud" for far too many people.

2) If have a pistol open/unloaded on your hip, is that "probable cause" to demand to search you pockets for loaded mags?

"Shall Issue" just solves so many things and keeps the sheep from seeing things that scare them far too easily.

loather
10-16-2009, 10:35 AM
"Shall Issue" just solves so many things and keeps the sheep from seeing things that scare them far too easily.

While I agree with you in principle (I'd rather have a concealed carry warrant than carry openly for a number of reasons), Scare the sheep. It's the only way to desensitize them from their own fears. The more they see it, the less they'll care, and the better it is for everyone.

The second people stop fearing guns is the second we've won the war.

pullnshoot25
10-16-2009, 10:47 AM
The only way to get 12031 to go away is to get LOC.

The only way to get LOC is to get rid of 12031.

hoffmang
10-16-2009, 11:35 AM
12031(e) loaded checks are unconstitutional under the 4th Amendment. That issue is on CGF's short list but there are very good strategic reasons to complete one or two other items first - both of which are underway.

Though point: Could they inspect your bag for communist reading materials?

-Gene

donstarr
10-16-2009, 11:39 AM
Though point: Could they inspect your bag for communist reading materials?

To what end? To ensure that, while in California, you're carrying some?

BigDogatPlay
10-16-2009, 11:59 AM
2) If have a pistol open/unloaded on your hip, is that "probable cause" to demand to search you pockets for loaded mags?

What crime would be present, or be potential in the officer's mind, in this limited scenario to start the chain from reasonable suspicion to probable cause to warrantless search?

While there is no small amount of mistrust of many things LEO, there needs to be some measure of criminality to make that jump. A Terry search for officer safety is not, IMO, really allowable. The UOC gun is in plain sight, the 12031 check ensures it is unloaded so there is no further reasonably apparent crime, and no immediate threat to officer safety hence no support for a Terry search beyond the 12031 check.

dantodd
10-16-2009, 12:21 PM
So is your argument that since the 12031(e) "inspection" created no probable cause of any other violation the detention following the "inspection" (and particularly the demand for ID) were unconstitutional and therefore any "fruits" of the unconstitutional search should be excluded? I'm not sure it makes sense. None of the fruits of the illegal search were needed to perform the investigation that led to the charges. While the ID may have made it easier for the police to apprehend you it was not relevant to the investigation and determination that a violation occurred.

pullnshoot25
10-16-2009, 1:00 PM
12031 allows an inspection, not a detainment and search. The law is quite clear on that. Anything past a perfunctory and hasty inspection is inherently illegal. Nothing found after that point is valid.

dantodd
10-16-2009, 1:05 PM
12031 allows an inspection, not a detainment and search. The law is quite clear on that. Anything past a perfunctory and hasty inspection is inherently illegal. Nothing found after that point is valid.

That would be my understanding as well. However; if we assume the detention were never conducted the officer would still be able to determine the proximity to a school at a later date and would have a physical description of Theseus. The fact that he had his ID would only mitigate the apprehension and is irrelevant to the violation or its prosecution. If you had the search deemed illegal and all evidence obtained thrown out the only relevant item discarded would be the ID. This would mean the defense would be able to question the officer's ability to ID the person who was carrying the gun. I don't think that is much to hang your hat on.

elsensei
10-16-2009, 4:02 PM
First, remember that the people are the final determiners of the intent of the constitution. What do you suppose Thomas Jefferson would have to say about this bs?

Second, kidnapping is illegal. If I am pushing a child in a stroller,do the police have the right, whether or not authorized by statute, to conduct a quick DNA test on us both, just to make sure it's my kid?

That's bull-puckey, boy!

Why is it any different just because I am carrying a gun?

Another example. It's illegal to carry a concealed weapon without a permit. The fact that there is no gun visible on someone is an obvious indicator that that person may be concealing a weapon. Therefore, police ought to have the authority to stop and search anyone NOT openly carrying a weapon, just to be sure the citizen is not illegally concealing a weapon. 'cause, you know, officer safety is the MOST IMPORTANT THING.

I'm about to toss my cookies.

Of course 12031 is unconstitutional. Any idiot ought to be able to see that.

Bleah.

locosway
10-16-2009, 4:09 PM
You can't equate guns to anything else really. It's illegal to carry a loaded gun, guns are designed to be loaded, thus an inspection is needed to ensure they are not indeed loaded.

It's like banning cookies in public because they cause obesity. Now, if someone is walking around with a cookie jar, isn't the assumption that there are cookies inside?

I'm not agreeing with the law. I think it's wrong, and goes against the 4A. However, acting like a gun isn't designed to hold bullets is silly.

GuyW
10-16-2009, 6:03 PM
To what end? To ensure that, while in California, you're carrying some?

QFT
.

dantodd
10-16-2009, 10:11 PM
I'm not agreeing with the law. I think it's wrong, and goes against the 4A. However, acting like a gun isn't designed to hold bullets is silly.

Even in your model of leaving the 4th amendment out of it 12031(e) assumes the person is guilty and must prove themselves innocent. This is contrary to damn near every precept of law in this country.

So I assume that you believe it is acceptable for a police officer to run the serial numbers on your cell phone? It is illegal to have a stolen cell phone and clearly any cell phone might be stolen just as any gun might be loaded.

locosway
10-16-2009, 10:19 PM
Even in your model of leaving the 4th amendment out of it 12031(e) assumes the person is guilty and must prove themselves innocent. This is contrary to damn near every precept of law in this country.

So I assume that you believe it is acceptable for a police officer to run the serial numbers on your cell phone? It is illegal to have a stolen cell phone and clearly any cell phone might be stolen just as any gun might be loaded.


I do not agree with the law! I'm just showing you why it is the way it is.

If a 14 year old is walking down the street and has a cigarette pack in his hand, will a cop not stop him and look for tobacco?

Having a cigarette container is not illegal, only the tobacco contained inside. What gives the cop PC? Because the container is used to contain cigarettes, and to carry an empty container seems silly.

dantodd
10-16-2009, 10:22 PM
I do not agree with the law! I'm just showing you why it is the way it is.


If you are only looking for WHY it is that way the answer is easy. The legislature hates guns and people who own them and they can get away with it in CA. There is no reason to go through logical machinations when none are likely to exist.

locosway
10-16-2009, 10:25 PM
If you are only looking for WHY it is that way the answer is easy. The legislature hates guns and people who own them and they can get away with it in CA. There is no reason to go through logical machinations when none are likely to exist.

But there is, especially if you want to fight it. People equate carrying a gun to driving a car, and you can't do that.

I'm not making excuses, I'm just trying to show you why the law is there, why they can enforce it, and maybe perhaps how it could be attacked.

Right now, the only way to lessen the burden is to make cops afraid to check. The way to do this is what PnS25 has been doing. The other way, is to make LOC legal.

dantodd
10-16-2009, 10:27 PM
But there is, especially if you want to fight it. People equate carrying a gun to driving a car, and you can't do that.

You are right. Driving a car is a privilege and carrying a gun is a constitutionally protected right. They are very different and the government must meet a much higher standard of "interest" in curtailing your exercise of a right than of a privilege.

dustoff31
10-17-2009, 7:47 AM
12031(e) loaded checks are unconstitutional under the 4th Amendment. That issue is on CGF's short list but there are very good strategic reasons to complete one or two other items first - both of which are underway.

Though point: Could they inspect your bag for communist reading materials?

-Gene

Obviously I don't support 12031(e), but in your thought point, wouldn't the difference be that having communist reading materials in incorporated areas, school zone, etc., isn't a crime, whereas having a loaded handgun is?

Aside from 2a issues, my chief disagreement with 12031 is that assumes one to be guilty until proven innocent.

M. Sage
10-17-2009, 12:23 PM
It sounds like they just made up the inspection bit to fit their desired ruling.

Gee, you think?

I'm not a lawyer, but I suspect that as long as DUI checkpoints are legal, a 12031 inspection will remain legal for similar reasons.

They're legal, but the ruling that makes them legal actually acknowledges that they're unconstitutional. See also: "made up to fit their desired ruling."

hoffmang
10-17-2009, 2:46 PM
Obviously I don't support 12031(e), but in your thought point, wouldn't the difference be that having communist reading materials in incorporated areas, school zone, etc., isn't a crime, whereas having a loaded handgun is?

How does the LEO know you don't have a license pursuant to 12050? Simply having a license exempts you from the GFSZ and nowhere does it say that the firearm has to be concealed.

PC 626.9

(l)This section does not apply to ... a person holding a valid license to carry the firearm pursuant to Article 3 (commencing with Section 12050) of Chapter 1 of Title 2 of Part 4

-Gene

demnogis
10-17-2009, 3:27 PM
Can we get 626.9 run out on a rail with 12031? The .fed already deemed the GFSZ "law" unconstitutional once...

dantodd
10-17-2009, 4:08 PM
Simply having a license exempts you from the GFSZ and nowhere does it say that the firearm has to be concealed.


Is this a topic open for discussion now?

dantodd
10-17-2009, 4:12 PM
How does the LEO know you don't have a license pursuant to 12050? Simply having a license exempts you from the GFSZ and nowhere does it say that the firearm has to be concealed.

PC 626.9

(l)This section does not apply to ... a person holding a valid license to carry the firearm pursuant to Article 3 (commencing with Section 12050) of Chapter 1 of Title 2 of Part 4


-Gene

This makes for a much stronger argument for Theseus if 12031(e) were mooted then the fact that the officer now knows he doesn't have a CCW would be fruits of the illegal search because there is no probable cause by the mere carrying of a weapon, even if the officer knew he was in a school zone. Even if the officer knew that he didn't have a CCW due to previous encounters those would surely have also been 12031(e) checks which would also be invalidated. That is much more interesting than I had initially thought.

hoffmang
10-17-2009, 4:46 PM
The key 4th Amendment doctrine here is you can't search/sieze someone for doing something that's usually legal. It's why you can't stop people for drivers license checks for example. This gets more and more crystal clear when someone is seizing you for exercising a constitutional right (of some scope that needs to be proven by Sykes/Palmer.)

-Gene

HondaMasterTech
10-17-2009, 4:52 PM
That's what I've always said. A police officer observing you doing something legal is not probable cause for this so called "inspection".

bigcalidave
10-17-2009, 6:28 PM
So stop making them drop the UOC cases.

diginit
10-17-2009, 7:11 PM
So stop making them drop the UOC cases.

Stop allowing then to drop the UOC cases. Take them to the S.C.
Fixed it for you..

Paratus et Vigilans
10-17-2009, 7:27 PM
Though point: Could they inspect your bag for communist reading materials?

No need to check our bags for them. All such reading materials have been gathered and stored in the magazine racks on Air Force One. :cool:

hoffmang
10-17-2009, 8:55 PM
Stop allowing then to drop the UOC cases. Take them to the S.C.
Fixed it for you..
There is a better way and we're on it.
No need to check our bags for them. All such reading materials have been gathered and stored in the magazine racks on Air Force One. :cool:

Heh.

-Gene

nicki
10-17-2009, 10:21 PM
I want to state that at this time until we have incorporation, and other legal groundwork first and we get the go ahead from the "right people", I don't think anyone should be open carrying at this time.

That being said, if you are going to UOC, what excuse could a police officer use to inspect your gun if you carried a semi auto with the slide back and the magazine out of the gun.

Right now an officer will stop you, take possession of your gun to check if it is loaded, then proceed and do other "questionable checks".

The gun would be obviously unloaded without someone having to even unholster it.

With practice, a person could actually load and chamber a firearm just a shade slower than if they were carrying a loaded firearm.

Nicki

locosway
10-17-2009, 10:23 PM
It depends on your holster. If it's clearly visible to be unloaded, I don't think the officer would check unless they're the rights violating type. If they are that type, then there's nothing you can do to stop them.

HondaMasterTech
10-17-2009, 11:35 PM
The suggestion against UOC at this time is in incorporated areas, correct? BLM/NFS shouldn't get much hassle, right?

hoffmang
10-17-2009, 11:44 PM
The suggestion against UOC at this time is in incorporated areas, correct? BLM/NFS shouldn't get much hassle, right?

Yes. Please don't UOC in areas where discharge of a firearm is prohibited. If one wishes to LOC where that is already legal, one should feel quite comfortable.

-Gene

dantodd
10-18-2009, 6:26 AM
The key 4th Amendment doctrine here is you can't search/sieze someone for doing something that's usually legal. It's why you can't stop people for drivers license checks for example. This gets more and more crystal clear when someone is seizing you for exercising a constitutional right (of some scope that needs to be proven by Sykes/Palmer.)


I am assuming this is in response to my post immediately above. I understand and agree that 12031(e) is unconstitutional on its face. My initial question was if such a finding is relevant to the case at hand. The (e) check was unrelated to the GFSZ violation. The illegal additional detainment beyond the (e) check did nothing to further the determination that a violation was committed but it did identify the accused. So, if ID is the issue to have that mooted it is not necessary to find 12031(e) unconstitutional just that the associated detainment was illegal.

What I hadn't accounted for is the 12050 exception. Now, the illegal detainment and ID check showed that there was no CCW which is the basis for the charges because if he had a CCW the activity would have been legal. So we know that there was a way in which he COULD have been UOCing within 1000' of a school legally. The detainment incident to the (e) check uncovered the fact that he didn't have the CCW so is that then tossed out because the detainment after (e) check was illegal even under current law? Can the prosecution successfully argue that with years of experience one who has a CCW doesn't carry unloaded therefore open carrying unloaded within the 1000' of the school is probable cause to investigate if the person has a CCW? If they argue that then whether or not the officer at the scene was aware of the proximity of the school become very important.

Does this seem right or am I barking up the wrong tree?

hoffmang
10-18-2009, 11:14 AM
I am assuming this is in response to my post immediately above. I understand and agree that 12031(e) is unconstitutional on its face. My initial question was if such a finding is relevant to the case at hand.

We're in full agreement. I don't think Theseus' prosecution relies on the 12031(e) check since the firearm was unloaded. There are other 4th Amendment issues in his case, but (e) isn't one of them.

-Gene

Theseus
10-19-2009, 9:50 PM
We're in full agreement. I don't think Theseus' prosecution relies on the 12031(e) check since the firearm was unloaded. There are other 4th Amendment issues in his case, but (e) isn't one of them.

-Gene

Without trying to get too far off-topic, my case is unique as it contains many more elements than simply 12031 or 626.9.

The thread was not to discuss my case, mostly because my talking to much about this specific issue could let a few cats out of the bag.

demnogis
10-19-2009, 10:03 PM
California: Fruit of the poisonous tree is still FDA approved! :pinch:

dantodd
10-19-2009, 10:43 PM
California: Fruit of the poisonous tree is still FDA approved! :pinch:

The questions are how to attach the "fruit" to the tree, and to which tree would the fruit be attached.

Is the "poison tree" an (e) check which is an unconstitutional check (which would require a finding, contradicting stare decisis, that 12031(e) is unconstitutional)

Is the "poison tree" the "detention" associated with the (e) check which has already been voided.

Also, a 12031(e) check is only permitted to determine if the firearm is unloaded when the person is carrying in accordance to 12031(e). The problem is that one could also be open carrying per 12050 which also brings along 626.9 immunity. So, unless the person claims to be carrying per 12031 rather than 12050 there is no justification for an inspection because the actual carrying of a handgun is not probable cause to detain and search.

Now, even if an (e) check is done it is completely possible that someone ALSO has a rights to carry a concealed weapon per 12050. We have/had a police officer here who open carried. If this person was in a GFSZ while open carrying it would have been completely legal, the same holds for anyone with a LEO issued CCW.

Now. We know that one is immune from 626.9 if they have the right to CCW. So, how can the officer determine if the subject has a CCW? The only way is to ask, which the subject has no requirement to answer, or to detain and search. In this case it would appear that the "fruit" is actually the fact that there is no CCW issued and the "poison tree" is the detention that uncovered this fact and not the 12031(e) check per se. This means that there is no need to find 12031(e) unconstitutional for a defense.

This is all based on an arm-chair layman looking at the facts as partially presented by one of the litigants in the incident so I'm sure there are other facts of which I am unaware but I do surely hope that it all works out for the best for both the community and for Theseus.

locosway
10-19-2009, 10:56 PM
I was under the impression that a CCW carrier must always be concealed, and if they are not, they can be prosecuted.

dantodd
10-19-2009, 11:03 PM
I was under the impression that a CCW carrier must always be concealed, and if they are not, they can be prosecuted.

So was I. I have since been educated. This is per law, the LEA may revoke for open carry but it is not a PC violation.

locosway
10-19-2009, 11:07 PM
So was I. I have since been educated. This is per law, the LEA may revoke for open carry but it is not a PC violation.

That *is* interesting. Does anyone know when getting a CCW if it's clearly defined what constitutes concealed and open?

snobord99
10-19-2009, 11:46 PM
The questions are how to attach the "fruit" to the tree, and to which tree would the fruit be attached.

Is the "poison tree" an (e) check which is an unconstitutional check (which would require a finding, contradicting stare decisis, that 12031(e) is unconstitutional)

Is the "poison tree" the "detention" associated with the (e) check which has already been voided.

Also, a 12031(e) check is only permitted to determine if the firearm is unloaded when the person is carrying in accordance to 12031(e). The problem is that one could also be open carrying per 12050 which also brings along 626.9 immunity. So, unless the person claims to be carrying per 12031 rather than 12050 there is no justification for an inspection because the actual carrying of a handgun is not probable cause to detain and search.

Now, even if an (e) check is done it is completely possible that someone ALSO has a rights to carry a concealed weapon per 12050. We have/had a police officer here who open carried. If this person was in a GFSZ while open carrying it would have been completely legal, the same holds for anyone with a LEO issued CCW.

Now. We know that one is immune from 626.9 if they have the right to CCW. So, how can the officer determine if the subject has a CCW? The only way is to ask, which the subject has no requirement to answer, or to detain and search. In this case it would appear that the "fruit" is actually the fact that there is no CCW issued and the "poison tree" is the detention that uncovered this fact and not the 12031(e) check per se. This means that there is no need to find 12031(e) unconstitutional for a defense.

This is all based on an arm-chair layman looking at the facts as partially presented by one of the litigants in the incident so I'm sure there are other facts of which I am unaware but I do surely hope that it all works out for the best for both the community and for Theseus.

Do you have case law to back this up? If so, I'd love it if you could point it out. I've not looked so I don't have anything that I know of that would contradict that, but my gut tells me that that's an incorrect assertion.

pullnshoot25
10-19-2009, 11:48 PM
Do you have case law to back this up? If so, I'd love it if you could point it out. I've not looked so I don't have anything that I know of that would contradict that, but my gut tells me that that's an incorrect assertion.

Florida v. JL- no gun exception to Terry

hoffmang
10-19-2009, 11:59 PM
Also US v. Ubiles: http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=3rd&navby=case&no=003091

FL v. JL is SCOTUS where Ubiles is 3rd Circuit Court of Appeals but...

-Gene

snobord99
10-20-2009, 12:03 AM
Florida v. JL- no gun exception to Terry

No, I don't think that works here. I remember reading this case when I was still in school and the issue was that the officer searched the defendant based solely on a tip. I thought we were talking about a person OCing here where the officer clearly saw the gun (as opposed to acting on an anonymous tip with a vague description).

In other words, I don't think it works because:
Issue in Florida v. JL: can an officer make a Terry stop based solely on an anonymous tip?
My impression of the issue here: can an officer detain based solely on seeing a firearm being carried in the open?

snobord99
10-20-2009, 12:07 AM
Also US v. Ubiles: http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=3rd&navby=case&no=003091

FL v. JL is SCOTUS where Ubiles is 3rd Circuit Court of Appeals but...

-Gene

Also wouldn't work for basically the same reason I stated ^^^...I'm talking about dantodd's post where it seems that he's talking about OCing, but again, let me know if I'm confused.

dantodd
10-20-2009, 12:42 AM
Beautiful.

Relevant case law: Florida v. JL, Beck v. Ohio, US v. Ubiles, US v. Dudley


Obviously that is not exactly sound legal advice. I merely pulled it out of my butt; fortunately I also keep my brain there.

dantodd
10-20-2009, 12:47 AM
Do you have case law to back this up? If so, I'd love it if you could point it out. I've not looked so I don't have anything that I know of that would contradict that, but my gut tells me that that's an incorrect assertion.

I don't have a cite but what crime can one be reasonable suspected of committing by the mere act of open carrying a handgun?


The Michigan Law Enforcement Newsletter states that the firearm open carried isn't reasonable suspicion: http://www.mml.org/insurance/shared/publications/leaf_newsletter/2009_04.pdf

Georgia settled a USC 1982 case in Federal District court: http://www.georgiacarry.com/county/richmond_carry/Doc%2011%20Consent%20Order.pdf in which they quote JL
The Supreme Court has instructed, however, that in "cases in which the officer's authority to make the initial stop is at issue," there is no automatic "firearms exception" to the Fourth Amendment and Terry v. Ohio, 392 U.S. 1 (1968). See Florida v. I. L., 529 U.S. 266, 120 S. Ct. 1375 (2000). The present case presents the situation of whether the officer had authority to make the initial stop, and, therefore, the propriety of the initial stop must be examined under the standards of Terry.

From the same settlement:
Although the Eleventh Circuit has given no instruction on this particular issue, district courts in other circuits have addressed this issue, and the cases are instructive. In United States v. Dudley, 854 F.Supp. 570, 580 (S.D.Ind.1994), the court held that a radio call alerting police to the presence of two people in a vehicle with firearms did not provide reasonable suspicion of a crime justifying the stop, because possession of firearms is not, generally speaking, a crime.

And finally, the same settlement also asserts that Uribes also applies:
The Third Circuit Court of Appeals, with Northern District of Georgia Judge O'Kelley sitting by designation, unanimously held that a tip that a celebrant at a festival was carrying a pistol was not sufficient to justify a stop of the celebrant. See United States v. Ubiles, 224 F.3d 213 (3rd Cir. 2000). "For all the officers knew, even assuming the reliability of the tip that Ubiles possessed a gun, Ubiles was another celebrant lawfully exercising his right under Virgin Island law to possess a gun in public.

locosway
10-20-2009, 8:45 AM
It's reasonable to assume that one can not be suspected of plotting a crime simply because they are openly carrying a weapon, since doing so is clearly legal under CA law.

I'm still going to have to say that the only reason we have to do deal with 12031 is it's illegal to have a loaded gun, and everyone assumes a gun is loaded when they see one.

If you were to go to court, and the court asked you this... "If you saw a gun, would you not assume it was loaded until you verified otherwise?". I sure hope you'd say yes, because that's the safest thing to do. Even when someone hands you a gun, you check it yourself. Why? Because you don't trust others when it comes to determining if a gun is unloaded.

Now, the only way to get around this, is you were not handing your gun to another person. There's no need for an officer to check your gun to see if it's empty unless you were handing it to him for w/e reason. So, it should be assumed that you're following the law, and do have an empty gun. Just like any other law, you can't be presumed guilty until a full inspection is made to prove you're innocent.

dantodd
10-20-2009, 12:04 PM
I'm still going to have to say that the only reason we have to do deal with 12031 is it's illegal to have a loaded gun, and everyone assumes a gun is loaded when they see one.

It is NOT illegal to have a loaded gun. There are a number of classes of people who can legally carry a loaded gun right down Main Street.

An (e) check is only available to verify if a gun is loaded or not for "purposes of enforcing" 12031. The problem is that you can't KNOW (or have reasonable suspicion) that someone open carrying is required to have the gun unloaded.

Subsections (b) (c) and (d) each enumerate people who are permitted to openly carry a loaded firearm. Unless an officer is permitted to simply assume that none of those sections apply to the person in question they have no way to determine if 12031(e) is operational. A firearm is not "reasonable suspicion" for a search in and of itself and the officer cannot ascertain if an (e) check is appropriate because he won't know if the gun must be unloaded. In short, unless you volunteer the fact that you are required to carry unloaded it would seem an officer has no basis on which to perform an (e) check.

pullnshoot25
10-20-2009, 2:38 PM
It is NOT illegal to have a loaded gun. There are a number of classes of people who can legally carry a loaded gun right down Main Street.

An (e) check is only available to verify if a gun is loaded or not for "purposes of enforcing" 12031. The problem is that you can't KNOW (or have reasonable suspicion) that someone open carrying is required to have the gun unloaded.

Subsections (b) (c) and (d) each enumerate people who are permitted to openly carry a loaded firearm. Unless an officer is permitted to simply assume that none of those sections apply to the person in question they have no way to determine if 12031(e) is operational. A firearm is not "reasonable suspicion" for a search in and of itself and the officer cannot ascertain if an (e) check is appropriate because he won't know if the gun must be unloaded. In short, unless you volunteer the fact that you are required to carry unloaded it would seem an officer has no basis on which to perform an (e) check.

Beautiful.

Relevant case law: Florida v. JL, Beck v. Ohio, US v. Ubiles, US v. Dudley

snobord99
10-20-2009, 6:28 PM
I don't have a cite but what crime can one be reasonable suspected of committing by the mere act of open carrying a handgun?


The Michigan Law Enforcement Newsletter states that the firearm open carried isn't reasonable suspicion: http://www.mml.org/insurance/shared/publications/leaf_newsletter/2009_04.pdf

Georgia settled a USC 1982 case in Federal District court: http://www.georgiacarry.com/county/richmond_carry/Doc%2011%20Consent%20Order.pdf in which they quote JL
The Supreme Court has instructed, however, that in "cases in which the officer's authority to make the initial stop is at issue," there is no automatic "firearms exception" to the Fourth Amendment and Terry v. Ohio, 392 U.S. 1 (1968). See Florida v. I. L., 529 U.S. 266, 120 S. Ct. 1375 (2000). The present case presents the situation of whether the officer had authority to make the initial stop, and, therefore, the propriety of the initial stop must be examined under the standards of Terry.

From the same settlement:
Although the Eleventh Circuit has given no instruction on this particular issue, district courts in other circuits have addressed this issue, and the cases are instructive. In United States v. Dudley, 854 F.Supp. 570, 580 (S.D.Ind.1994), the court held that a radio call alerting police to the presence of two people in a vehicle with firearms did not provide reasonable suspicion of a crime justifying the stop, because possession of firearms is not, generally speaking, a crime.

And finally, the same settlement also asserts that Uribes also applies:
The Third Circuit Court of Appeals, with Northern District of Georgia Judge O'Kelley sitting by designation, unanimously held that a tip that a celebrant at a festival was carrying a pistol was not sufficient to justify a stop of the celebrant. See United States v. Ubiles, 224 F.3d 213 (3rd Cir. 2000). "For all the officers knew, even assuming the reliability of the tip that Ubiles possessed a gun, Ubiles was another celebrant lawfully exercising his right under Virgin Island law to possess a gun in public.

Thanks! That's the kind of case I'm looking for. Too bad it's not binding on any court :(.

dantodd
10-20-2009, 6:31 PM
Thanks! That's the kind of case I'm looking for. Too bad it's not binding on any court :(.

Not binding but since it does rely on several citable cases it should be a decent indicator of how those same cases would be interpreted in other courts.

demnogis
10-21-2009, 9:35 AM
I'm just reiterating that although it stands you shouldn't talk to cops (unless the investigation into law violations is over), safety dictates to treat every firearm is loaded until verified otherwise. Couple that with 12031(e) and it almost becomes "common sense" that a firearm must be inspected.

I do not agree with this... Because of all the reasons dantodd stated... How should a LEO know you're not one of those exempt persons? It seems alot easier to crumple up 12031 and drop it in the dumpster to save LEOs the hassle and LACs the rights-violations.

dantodd
10-21-2009, 10:43 AM
I'm just reiterating that although it stands you shouldn't talk to cops (unless the investigation into law violations is over), safety dictates to treat every firearm is loaded until verified otherwise. Couple that with 12031(e) and it almost becomes "common sense" that a firearm must be inspected.

I don't understand this. Why is it common sense that the firearm be inspected, and by whom? If you are merely saying it is important to know the state of your weapon when it is under your control I agree. If you are saying that it is "common sense" for a police officer to detain a (as far as he knows) law-abiding citizen to check the status of his weapon I don't agree. In the first case it prevents NDs and permits safer operation of the firearm but I don't see what the inspection does in the second case. I really want to know what you think because I am just not getting it.

Obviously, if the suspect is being detained with probable cause for something else it is critical that the officers detaining him seize the weapon and check if it's loaded for the duration of the detention. This sort of seizure and check doesn't rely on 12031(e) though.

Theseus
10-21-2009, 12:01 PM
No, I don't think that works here. I remember reading this case when I was still in school and the issue was that the officer searched the defendant based solely on a tip. I thought we were talking about a person OCing here where the officer clearly saw the gun (as opposed to acting on an anonymous tip with a vague description).

In other words, I don't think it works because:
Issue in Florida v. JL: can an officer make a Terry stop based solely on an anonymous tip?
My impression of the issue here: can an officer detain based solely on seeing a firearm being carried in the open?

OK. So here it is. The police detained me solely on the 911 call that a person matching my description was in possession of a firearm in his waist band.

Now, the only two differences are this.



The tip was not anonymous.
Although the tipster saw the firearm as a result of OC, none of the officers did until they detained me and ordered me to stand up.

But the question I was asking has not been answered so much.

Although 12031(e) is constitutional because it is not a detention or a search, but the police are using it as PC to detain and search, is the law then unconstitutional, or merely the illegal detention sans RAS or PC that a crime was, is, or will be committed?

dantodd
10-21-2009, 12:12 PM
OK. So here it is. The police detained me solely on the 911 call that a person matching my description was in possession of a firearm in his waist band.

Now, the only two differences are this.



The tip was not anonymous.
Although the tipster saw the firearm as a result of OC, none of the officers did until they detained me and ordered me to stand up.

But the question I was asking has not been answered so much.

Although 12031(e) is constitutional because it is not a detention or a search, but the police are using it as PC to detain and search, is the law then unconstitutional, or merely the illegal detention sans RAS or PC that a crime was, is, or will be committed?

I believe that 12031(e) is unconstitutional on its face, even a finding that a firearm is loaded does not create reasonable suspicion that a crime will be, is being or has been committed. There is nothing in Dudley, Uribes, or JL that said an "unloaded" gun is not RAS just that ANY gun is not RAS so the status as loaded or not is irrelevant. If 12031(e) determines facts not relevant to RAS or PC what purpose does it fill other than to harass law abiding citizens?

snobord99
10-21-2009, 6:25 PM
Not binding but since it does rely on several citable cases it should be a decent indicator of how those same cases would be interpreted in other courts.

If only I thought this were true...

dantodd
10-21-2009, 7:15 PM
If only I thought this were true...

Got a better indicator?

snobord99
10-21-2009, 7:59 PM
Got a better indicator?

Yup. Circuit splits in damn near every area of law.

dantodd
10-21-2009, 8:38 PM
Yup. Circuit splits in damn near every area of law.

And that indicates that a court will decide which way?

snobord99
10-21-2009, 9:46 PM
And that indicates that a court will decide which way?

It doesn't. But I'm not saying the court will go one way or another. I'm saying that this doesn't help me figure out which way the next court is likely to go. Not by significant enough of a margin that I would bet anything on it at least (51/49 isn't much better than 50/50 is all I'm saying).