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View Full Version : good shooting, bad CCW


vantec08
01-21-2011, 5:14 AM
http://www.sacbee.com/2011/01/21/3340265/shooting.html#ixzz1BeocDQaP

sd_shooter
01-21-2011, 5:47 AM
I wouldn't say that's bad CCW. The guy didn't have a license and gets away with a misdemeanor? Pretty good deal in my book.

glbtrottr
01-21-2011, 5:59 AM
This case is garbage - the man had the pistol in his bag, and retrieved it to defend himself. How would this be any different if we had our pistol in our laptop bag or similar unlocked container? What a travesty.

SanPedroShooter
01-21-2011, 6:03 AM
Exactly, what if he said, "i got the unloaded gun out of my locked bag, loaded it and fired it"? Or better yet, say nothing and let the DA prove it was illegally concealed. Or even better yet, get your Sac CCW...

choprzrul
01-21-2011, 6:06 AM
I thought there was an exception to 12050 if you believe that you are in imminent danger. Common sense would tell me that if you have to defend yourself, CCW restrictions should go flying out the window.

.

Jonl
01-21-2011, 6:28 AM
Sooner or later the connection will be made by the bureaucrats. Self defense legal. Carrying loaded weapon illegal. Concealed carry must be legal in order for legal self defense.

socal2310
01-21-2011, 6:50 AM
Sooner or later the connection will be made by the bureaucrats. Self defense legal. Carrying loaded weapon illegal. Concealed carry must be legal in order for legal self defense.

Uh huh, British bureaucrats made that connection too. Their solution was to effectively ban self defense.

It's a shame that ex post facto permission from the owner of the restaurant won't fly for his defense.

Ryan

Untamed1972
01-21-2011, 7:02 AM
someone should show that DA the judges decisions and comments in the Peruta case regarding the self defense exceptions in 12031.

How is a person supposed to legally avail themselves of the the self-defense exception in 12031 if they're going to get charged with having a loaded gun in public as the article said "before and AFTER" the shooting?

Seems like the guys defense should be that the way 12031 self-defense exception is written paints you into a corner of having to commit another crime to avail yourself of the excpetion should you need to defend yourself.

vantec08
01-21-2011, 7:22 AM
Dam right, untamed. They dont WANT us to defend ourselves is the consistent message.

srt4geezer
01-21-2011, 7:28 AM
Gov message is: Cheaper for us if your carried by 6 then judged by 12.

scarville
01-21-2011, 7:39 AM
This case is garbage - the man had the pistol in his bag, and retrieved it to defend himself. How would this be any different if we had our pistol in our laptop bag or similar unlocked container? What a travesty.
He didn't have a license to carry it. You may think it's a right -- I do -- but the law treats it as a privilege. I think the DA is being a flaccid member by charging him but the law sides with the flaccid members these days. :shrug:

sighere
01-21-2011, 7:42 AM
Another good reason to clam up when there's an investigation into your actions. Unless you're withholding information that can cause imminent injury/death then you need to clam up.

Further, violation of 12050 is in fact a misdemeanor. If you're willing to accept the legal consequences post shooting when carrying legally, you should be willing to accept legal consequences of violating 12050 (misdemeanor) if you've been denied a permit and you feel strongly about your 2A right to self protection.

zhyla
01-21-2011, 7:49 AM
I thought there was an exception to 12050 if you believe that you are in imminent danger. Common sense would tell me that if you have to defend yourself, CCW restrictions should go flying out the window.

.

Yes. Once he reasonably believed to be in imminent danger he was no longer committing a crime. It ought to be on the state to prove he illegally carried the weapon up to that point.

jnojr
01-21-2011, 7:49 AM
Another good reason to clam up when there's an investigation into your actions. Unless you're withholding information that can cause imminent injury/death then you need to clam up.

This.

Further, violation of 12050 is in fact a misdemeanor. If you're willing to accept the legal consequences post shooting when carrying legally, you should be willing to accept legal consequences of violating 12050 (misdemeanor) if you've been denied a permit and you feel strongly about your 2A right to self protection.

IIRC, it's a "wobbler". It can be charged as a misdemeanor... but it can also be charged as a felony.

Wherryj
01-21-2011, 7:53 AM
This case is garbage - the man had the pistol in his bag, and retrieved it to defend himself. How would this be any different if we had our pistol in our laptop bag or similar unlocked container? What a travesty.

"
John Myers, a professor of law at the McGeorge School of Law, said it is unlikely that Phillips will serve any jail time if he was a first-time offender."



Read more: http://www.sacbee.com/2011/01/21/3340265/shooting.html#ixzz1BgoWBmCI

The good news is that this McLawyer says that he shouldn't serve jail time.

SigAlert
01-21-2011, 8:01 AM
Would this have turned out differently if his first call (after 911) was to CalGuns?

choprzrul
01-21-2011, 8:16 AM
Would this have turned out differently if his first call (after 911) was to CalGuns?

^^THIS^^

.

Lrchops
01-21-2011, 8:21 AM
I cannot imagine that the DA will follow through with a Misd. charge on a good citizen doing what is necessary to protect himself. Common sense must prevail. The DA has an opportunity to put out a message to the community that they support legal self defense and the criminals should beware!

Gray Peterson
01-21-2011, 8:23 AM
Folks,

This is why Peterson v. LaCabe is so important. Mr. Phillips would have no ability at all to apply for a carry license from any county sheriff due to the county of residency requirement.....

Andy Taylor
01-21-2011, 8:32 AM
Isn't he a Nevada resident? If so he has no legal means of exercising his 2A in CA. I think this should be fought on those grounds. Yes he carried the gun. The law prohibiting him from doing so is unconstitutional. That is the stance he (we?) should take. I would be willing to contribute to his defense if he chooses this defense. All the way to SCOTUS.

And yes, I realize this is the heart of Gray's case in CO.

Stonewalker
01-21-2011, 8:46 AM
Oh man I've been waiting to hear an answer on this since it happened! I was hoping he wouldn't be charged for CCW without a 12050. Oh well, he unknowingly broke the law and that's how it goes. Thank God he isn't being charged with attempted murder.

Gray Peterson
01-21-2011, 8:47 AM
Isn't he a Nevada resident? If so he has no legal means of exercising his 2A in CA. I think this should be fought on those grounds. Yes he carried the gun. The law prohibiting him from doing so is unconstitutional. That is the stance he (we?) should take. I would be willing to contribute to his defense if he chooses this defense. All the way to SCOTUS.

And yes, I realize this is the heart of Gray's case in CO.

IIRC from previous posts on the subject of the Musician, I beleive CGF has or already will reach out to the defense attorney, if there is one.

stix213
01-21-2011, 9:14 AM
He was breaking the law and it would have been relatively easy to get a sac ccw. Sucks to be him

meaty-btz
01-21-2011, 9:18 AM
He was breaking the law and it would have been relatively easy to get a sac ccw. Sucks to be him

How? He isnt a resident of Sacto nor California. He is a Nevada resident. that means no CCW Permit Available.

dantodd
01-21-2011, 9:20 AM
Stix, how could he have ben issued a sac ccw? Is there some law I am unfamiliar with that permits NV returns to get a CA ccw? Is this a good full faith and credit case?

stix213
01-21-2011, 9:43 AM
Didn't realize he wasn't a sac resident, my apologies.

My375hp302
01-21-2011, 11:04 AM
Great quote from the reader comments!

"Guns don't kill criminals, would have been victims do."

mtptwo
01-21-2011, 11:45 AM
Didn't realize he wasn't a sac resident, my apologies.

Going through the Sac CCW process right now, and I can tell you it isn't anywhere near a non-burden. The cost alone is prohibitive for most.

gunsmith
01-21-2011, 12:35 PM
most nevadans don't know about calguns or CA law

sjalterego
01-21-2011, 4:19 PM
I can't tell from the article alone but the DA is quoted as saying:

"While James Phillips' use of the firearm in self defense was lawful, his possession of it in a concealed and loaded condition both before and after the shooting was unlawful,"

It would appear from that statement that the DA had some information indicating that Phillips indeed had the weapon concealed (in the bag maybe, which is probably not a "locked container") and loaded.

While maybe a putz move it does appear, on its face, that the misdemeanor charge is valid under state law as currently interpreted.

raycm2
01-21-2011, 4:28 PM
If no CCW, carry locked/unloaded. Get the gun, load up, shoot the BG, unload, restore gun to locked container. This is, of course, assuming that you have time to get it unlocked and loaded before the BG rips your face off. :cool:

Brings new meaning to the phrase "lock and load".

FXR
01-21-2011, 5:15 PM
Brings new meaning to the phrase "lock and load".

Priming the lock on your flintlock and then loading from the muzzle in that order is probably still slower and more dangerous...:D

Cpl. Haas
01-21-2011, 5:26 PM
WTF!? The day after the shooting, I spoke with some of the Sac PD officers who responded to the call and asked them if Phillips had a CCW... one of the officers' exact response was, "didn't need one... he was on private property... acting as an agent [of the property owner]."

Nice to know Sac PD can have your back on a justified shooting, but the DA will still screw you over...

Jack L
01-21-2011, 5:43 PM
Gov message is: Cheaper for us if your carried by 6 then judged by 12.


That is a great line to use in court. I can see my lawyer delivering that line to the jury at the precise moment and it rigs true in their brains like light from above. I like it.

OC-Indian
01-21-2011, 5:52 PM
If he had just had a lock on it this wouldnt be an issue

GrizzlyGuy
01-21-2011, 6:57 PM
Since he is from NV and his gun probably wasn't registered with CA DOJ, he could have been charged with two felonies: 12025 and 12031. It appears that the DA did cut him a bit of slack, but he should have cut him some more: no charges at all.

todd2968
01-21-2011, 7:08 PM
He should have lawyered up!!! Gun was locked in case and loaded upon threat.

BEAR arms does not mean locked in a case, or with proper permit, with Sheriff's permission.

a1c
01-21-2011, 7:21 PM
It's obvious the DA gave the guy a deal, knowing that it would be incredibly unfair for him to be charged with more. The guy is not even going to do time. And he can still own a firearm.

The DA couldn't dismiss all charges as the guy was illegally carrying. To save face, he gave the guy the best deal he could make.

Andy Taylor
01-21-2011, 7:26 PM
Bad situation. Maybe some good can come of it.
BTW DA Jan Scully is female.

dantodd
01-21-2011, 7:41 PM
It's obvious the DA gave the guy a deal, knowing that it would be incredibly unfair for him to be charged with more. The guy is not even going to do time. And he can still own a firearm.

The DA couldn't dismiss all charges as the guy was illegally carrying. To save face, he gave the guy the best deal he could make.

I believe that in a very similar circumstance the LA DA cut a guy completely free who used an illegal CCW gun in self defense just last year.

So, no the DA didn't cut the guy slack. This is one of those rare cases where the defendant might make good case law for us as he sounds clean and is getting prosecuted for exercising a constitutional right.

a1c
01-21-2011, 7:49 PM
I believe that in a very similar circumstance the LA DA cut a guy completely free who used an illegal CCW gun in self defense just last year.

So, no the DA didn't cut the guy slack. This is one of those rare cases where the defendant might make good case law for us as he sounds clean and is getting prosecuted for exercising a constitutional right.

She did cut him major slack given the existing laws (remember - the DA goes by the current law, not by your - or my - idea of what the rights the 2A includes).

Some DAs regularly dismiss chicken**** charges (small possession charges, for instance), even when some firearms are involved as long as no one gets shot. This is just about the DA saving face and sending the message that people shouldn't CCW illegally.

epilepticninja
01-21-2011, 8:38 PM
I can't believe the DA filed on this. I'm embarrassed for their office.

Gray Peterson
01-21-2011, 8:51 PM
She did cut him major slack given the existing laws (remember - the DA goes by the current law, not by your - or my - idea of what the rights the 2A includes).

Some DAs regularly dismiss chicken**** charges (small possession charges, for instance), even when some firearms are involved as long as no one gets shot. This is just about the DA saving face and sending the message that people shouldn't CCW illegally.

That's nice.

How is her ADA's going to explain the fact that if he were a resident of Sacramento County, he'd be able to get a carry permit, but because of PC12050(a)(3)(D)(i), he cannot and it would be a futile act to even try?

As much as I am not personally in the hot seat (I prefer civil litigation), is it too much to hope that Don Kilmer or Jason Davis represent him? Pretty please? With sugar on top?

dantodd
01-21-2011, 9:01 PM
She did cut him major slack given the existing laws (remember - the DA goes by the current law, not by your - or my - idea of what the rights the 2A includes).

Some DAs regularly dismiss chicken**** charges (small possession charges, for instance), even when some firearms are involved as long as no one gets shot. This is just about the DA saving face and sending the message that people shouldn't CCW illegally.

prosecutorial discretion works everywhere. If the shooter were a beaten girlfriend and the idiot with a bullet hole were a mean boyfriend would charges be filed? As I said, and Gray said even more eloquently, this is one of those places where a criminal suit may well be worth the risk.

Gray Peterson
01-21-2011, 9:58 PM
prosecutorial discretion works everywhere. If the shooter were a beaten girlfriend and the idiot with a bullet hole were a mean boyfriend would charges be filed? As I said, and Gray said even more eloquently, this is one of those places where a criminal suit may well be worth the risk.

I'm not in the hot seat, and this person may not have had the mens rea to qualify and could get out from it on that way. The nice thing is, federal court can still fix the issue either with a different case or a habeas petition....

a1c
01-21-2011, 10:08 PM
prosecutorial discretion works everywhere. If the shooter were a beaten girlfriend and the idiot with a bullet hole were a mean boyfriend would charges be filed? As I said, and Gray said even more eloquently, this is one of those places where a criminal suit may well be worth the risk.

Prosecutorial discretion works everywhere, but it's different everywhere. It depends on the office - some give complete discretion to their DDAs/ADAs, others require them to check with their boss for just about everything.

As for the scenario you're bringing up - hey, maybe indeed things would have been different in that case. Who knows? I don't. You don't either. This is all speculation.

As I said, I suspect the DA's office is just sending a message that they don't want people to illegally CCW.

Do I think it sucks that the guy is still getting charged with this? Sure. But considering he could have faced a felony and jail time, he did good.

bodger
01-22-2011, 7:49 PM
Prosecutorial discretion works everywhere, but it's different everywhere. It depends on the office - some give complete discretion to their DDAs/ADAs, others require them to check with their boss for just about everything.

As for the scenario you're bringing up - hey, maybe indeed things would have been different in that case. Who knows? I don't. You don't either. This is all speculation.

As I said, I suspect the DA's office is just sending a message that they don't want people to illegally CCW.

Do I think it sucks that the guy is still getting charged with this? Sure. But considering he could have faced a felony and jail time, he did good.

Yep, it's too bad that he has to face charges at all, but it could be a lot worse.

And he also didn't get stomped by the bad guy. This could just as well have been a story about the shooter being murdered or maimed if not for that firearm he had.

Quser.619
01-22-2011, 10:15 PM
I can see the head-lines for the Sac DA, 65 year-old gets jailed for defending himself