PDA

View Full Version : Open Carry


killathrilla
01-22-2011, 6:41 PM
Question:
On your own property is it legal to open carry a loaded handgun?
Example:
Your cleaning a firearm in your garage and you have your loaded handgun in your holster on your side carried openly.

Thanks guys!

CitaDeL
01-22-2011, 6:56 PM
Question:
On your own property is it legal to open carry a loaded handgun?
Example:
Your cleaning a firearm in your garage and you have your loaded handgun in your holster on your side carried openly.

Thanks guys!

It depends.

On whether you are in an incorporated area...
On whether your private property is not publically accessable...

killathrilla
01-22-2011, 6:59 PM
Example is based on living in a city or town in a housing track.
Thanks

Dutch3
01-22-2011, 7:01 PM
If a member of the general public can walk into your open garage "unchallenged", then it is considered a "public place" as I understand it.

If you have closed gates, signs, thorny shrubs, dogs, etc., to present a "challenge" to public access, you are probably OK.

M198
01-22-2011, 7:04 PM
Question:
On your own property is it legal to open carry a loaded handgun?
Example:
Your cleaning a firearm in your garage and you have your loaded handgun in your holster on your side carried openly.

Thanks guys!

You can carry loaded concealed and/or open as long as you're on private property. The working understanding as of right now is private property means privately owned land not accessible to the public "unmolested or unchallenged". This generally means some locked gate or fence around the property. Whether the gate or fence needs to be locked seems to be open to debate but if the average person (say a Mormon missionary) would be able to get in, then it's public and not private. To be fair, most of this is based on a man who was cited on 626.9 violation for open carrying even though he was on private property (store parking lot). It's a far cry from a laundry mat's parking lot to your front yard surrounded by a fence with an unlocked gate. The law for unloaded open carry says "private property" but has been interpreted as "public place" by a know-nothing trial judge. It's a long settled matter of law that commonly used phrases appearing in previous laws should not be open to interpretation. For example, "private property" has been well established by previous laws to mean "property that is privately owned" and as such should not by confused with "private area" which is also been used abundantly in previous laws to mean a place openly accessible to the general public like parking lots.

warbird
01-22-2011, 7:09 PM
That is why my large front patio has a four foot stone wall around it and lockable gates. the rest of my yard is raised three feet but that is not considered a barrier. If my gates are closed adn posted to keep out I should be able to carry on the patio but not the rest of the yard. It gets tricky.

killathrilla
01-22-2011, 7:21 PM
So without a fence or some other obstruction on your private property can you UOC based on the originally given example?
Thanks

Cokebottle
01-22-2011, 7:42 PM
Example is based on living in a city or town in a housing track.
Thanks
Garage door closed, legal.
Garage door open, illegal unless your driveway and property are fenced and gated.

M198
01-22-2011, 7:42 PM
So without a fence or some other obstruction on your private property can you UOC based on the originally given example?
Thanks

As long as you are not within 1000 ft of a k-12 school. CA PC 626.9 cited below. Visit opencarry.org for more information. Please note, open carrying is a whole can of worms you are about to open.

(b) Any person who possesses a firearm in a place that the person
knows, or reasonably should know, is a school zone, as defined in
paragraph (1) of subdivision (e), unless it is with the written
permission of the school district superintendent, his or her
designee, or equivalent school authority, shall be punished as
specified in subdivision (f).
(c) Subdivision (b) does not apply to the possession of a firearm
under any of the following circumstances:
(1) Within a place of residence or place of business or on private
property Area, if the place of residence, place of business, or private property Area is not part of the school grounds and the possession of the firearm is otherwise lawful....

Cokebottle
01-22-2011, 7:43 PM
So without a fence or some other obstruction on your private property can you UOC based on the originally given example?
UOC would be subject to the gun free school zone restrictions.

locosway
01-22-2011, 8:29 PM
Garage door closed, legal.
Garage door open, illegal unless your driveway and property are fenced and gated.

There's no case law to show this.

The only thing we have a ruling on was a yard, which is far different from an attached garage. If I leave my front door open, and I LOC, people are not challenged to enter because the door is open. This is the same as a garage, especially if you have a couch, fridge, or any other items in there that make it livable.

This is what sucks about our vague laws. No one knows the boundaries of what we can and can't do until someone goes to jail or escaped jail.

Carnivore
01-22-2011, 8:43 PM
In your garage door open you're still legal to carry loaded. No different than if your front door was open carrying loaded in your house. Step on to your driveway with no front gate then you are passed the threshold. You're still inside your building (garage) privately owned which makes it legal. Unless you're pointing the gun at people walking by then it would be illegal obviously. As said in many threads though I wouldn't want to be the test case.

killathrilla
01-22-2011, 9:48 PM
Any advice from Calguns Legal pertaining to either UOC or LOC carry in you garage with the door open, no fence, on your private property?

Window_Seat
01-22-2011, 10:15 PM
Garage door closed, legal.
Garage door open, illegal unless your driveway and property are fenced and gated.

Hmmmmm...... I have to disagree based on this:

The question I've had in the past, and will still have is that if a person is in their garage, and the garage is "wide open", and viewable for all to see, and the cop driving down the street sees you cleaning your BBed AR-15 with all the "evils", can they prove that since the garage was viewable for "all to see", there was no "reasonable expectation of privacy" for the warrantless search, and that the person's garage is not part of their home? Providing there are no "exigent circumstances" Payton v. New York 445 U.S. 573 (1980) (http://openjurist.org/445/us/573), I believe that question could be answered in USA v. Oaxaca (http://ftp.resource.org/courts.gov/c/F3/233/233.F3d.1154.99-30062.html) (CA9):

We can conceive of no reason to distinguish a garage, where people spend time, work, and store their possessions, from a den or a kitchen, where people spend time, work, and store their possessions. Simply put, a person's garage is as much a part of his castle as the rest of his home.

Counsel?

Erik.

BKinzey
01-22-2011, 10:20 PM
Any advice from Calguns Legal pertaining to either UOC or LOC carry in you garage with the door open, no fence, on your private property?

(deleted, evidently Window Seat has found some case law). While I believe your garage door would be treated the same as your front door I wouldn't want to be a test case. I would advise you to keep your garage door closed.

locosway
01-22-2011, 10:33 PM
I emailed Anaheim PD on this to see what their officers and department would do if encountering a caller or seeing a home owner carrying in their garage. I'm fairly certain that as long as the gun is holstered, and they're within their garage, there's nothing they can or would do.

N6ATF
01-23-2011, 12:09 AM
Don't bother posting their response, because police are legally allowed to lie, and most are not also lawyers, and even if so, they are under no compulsion to give you proper legal advice.

locosway
01-23-2011, 12:10 AM
Don't bother posting their response, because police are legally allowed to lie, and most are not also lawyers, and even if so, they are under no compulsion to give you proper legal advice.

I wouldn't take it as legal advice, but it would be nice to hear what a departments policy or view is on such things. Personally I like information, and the more sources I can get for that information the more rounded it will be.

Cokebottle
01-23-2011, 10:33 AM
There's no case law to show this.

The only thing we have a ruling on was a yard, which is far different from an attached garage.
Ask Theseus.

626.9 specifically exempts "Place of Business," "Place of Residence," and "Private Property."
He was sitting on a bench on private property in front of a place of business... but he was still on private property.

The judge disallowed the defense, effectively legislating from the bench that private property is not private property.
He took "drunk in public" laws which state "public place" (defined as any property open to unrestricted public access), and applied that definition to the 626.9 charges... 626.9 states nothing about "public place."

Bogus charges.
Kangaroo court.
And Theseus is a prohibited person for 10 years.

Window_Seat
01-23-2011, 10:52 AM
Ask Theseus.

626.9 specifically exempts "Place of Business," "Place of Residence," and "Private Property."
He was sitting on a bench on private property in front of a place of business... but he was still on private property.

The judge disallowed the defense, effectively legislating from the bench that private property is not private property.
He took "drunk in public" laws which state "public place" (defined as any property open to unrestricted public access), and applied that definition to the 626.9 charges... 626.9 states nothing about "public place."

Bogus charges.
Kangaroo court.
And Theseus is a prohibited person for 10 years.

Not to thread-jack, but is this ever going to be appealed?

Erik.

locosway
01-23-2011, 11:42 AM
Ask Theseus.

626.9 specifically exempts "Place of Business," "Place of Residence," and "Private Property."
He was sitting on a bench on private property in front of a place of business... but he was still on private property.

The judge disallowed the defense, effectively legislating from the bench that private property is not private property.
He took "drunk in public" laws which state "public place" (defined as any property open to unrestricted public access), and applied that definition to the 626.9 charges... 626.9 states nothing about "public place."

Bogus charges.
Kangaroo court.
And Theseus is a prohibited person for 10 years.

And 626.9 does not apply to inside your home. Also, your garage is not a public place, even with the door open. I'll agree that you can get popped for anything in your unfenced/gated yard, as that's what the courts have shown us, however this is different than what we're discussing.

Jack L
01-23-2011, 11:56 AM
The garage issue then brings up (SD) weather you could shoot a threat in your garage if the door was open? Seems like that's reasonable. Many garages have a door that goes into the house. Seems a good idea to fence and gate your property.

Cokebottle
01-23-2011, 12:13 PM
And 626.9 does not apply to inside your home. Also, your garage is not a public place, even with the door open. I'll agree that you can get popped for anything in your unfenced/gated yard, as that's what the courts have shown us, however this is different than what we're discussing.
The problem is what the DA and the judge do with it.

Prior to Theseus's case, we would have said that 626.9 does not apply on private property, but the judge denied that defense.

Cokebottle
01-23-2011, 12:14 PM
The garage issue then brings up (SD) weather you could shoot a threat in your garage if the door was open? Seems like that's reasonable. Many garages have a door that goes into the house. Seems a good idea to fence and gate your property.
Self defense, you would be good to go if it is otherwise a good shoot.
You have no duty to retreat within your own home.

RobG
01-23-2011, 3:15 PM
Keep it simple; leave the gun loaded and near you, not holstered. Or better yet, keep your garage closed when handling your weapons.

N6ATF
01-23-2011, 3:19 PM
More here: http://www.calguns.net/calgunforum/showthread.php?t=387777

Cokebottle
01-23-2011, 4:43 PM
Or better yet, keep your garage closed when handling your weapons.
This.

Seriously... of the 44 other families in my condo complex, there are only 4 that are aware that I have guns, and I want to keep it that way.