Now I'm the one with the legal questions...

[blackrazor]

Hey all,

I've got a couple of questions I've been mulling over lately, and I know somebody here can help me out.

1) IIRC, there was a recent court ruling that said a long gun is NOT considered loaded if it has ammunition attached to the gun but not in the magazine/chamber. Specifically, I think the ruling was in reference to somebody having shotgun shells stored in the side saddle of a Benelli or other shotgun. Is this correct? Furthermore, if it is true, I would assume this would also apply to a rifle like the SU-16CA, i.e. even if you had a loaded 30 round mag stored in the stock, the rifle would not be considered "loaded" until the mag was placed in the mag well.

2) Just to confirm, when the newer pistols come with mandated magazine disconnect safties, there's nothing in the law which prevents the buyer from modifying the gun after the purchase and removing said safety, correct?

Thanks in advance for any help.

[Dr. Peter Venkman]

1) IIRC, there was a recent court ruling that said a long gun is NOT considered loaded if it has ammunition attached to the gun but not in the magazine/chamber. Specifically, I think the ruling was in reference to somebody having shotgun shells stored in the side saddle of a Benelli or other shotgun. Is this correct? Furthermore, if it is true, I would assume this would also apply to a rifle like the SU-16CA, i.e. even if you had a loaded 30 round mag stored in the stock, the rifle would not be considered "loaded" until the mag was placed in the mag well.


The shotgun in the case originally was decided to be loaded. During appeal, the conviction of having a loaded firearm while in the possesion of meth was overturned.

I still keep my ammunition seperate from my long guns, however.

[blackrazor]

Dr. Venkman,

Any idea on a reference number for the appeals case or do you know where I might be able to obtain the text of the ruling? Thanks again.

P.S. That's a big twinkie.

[bwiese]

Hi Blackrazor...

Good to see you. Thanks for starting the revolution.

I *think* that's the case - long gun not loaded if rounds not set up in ready position to fire (i.e, chambered and/or loaded mag inserted). However the "smell test" in a metro area traffic stop could be interesting.

As far as any purported 'safety' (mag disco, LCI, etc.) features on handguns - there is simply no law prohibiting their removal, modification or deactivation. Those laws only apply to the sale (but not PPT) of the gun,

Such modified firearms could in fact be F2F PPT'd to another person if you perchance tired of that particular modified firearm.

However, such a gun could not be sold to a CA FFL dealer outright - even if gun is on "approved safe gun list" - because that dealer would have to sell a modified gun, which he can't. So you'd have to add Alison's features back to restore its BS "integrity".

I have a Browning HP I removed the mag disconnect from [though I screwed up a spring. Will have to have it 'smithed, and I'll add a "Commander" (rowel) hammer at the same time.]

I have an S&W 1006 I'm getting ready to remove the mag disco lever from, too.

It's well-documented how to remove Sprinfield 1911 "ILS" crap too - so that'll go away on my MicroCompact at the same time I get a Commander hammer on too.

[blackrazor]

Hey Bill,

Nice to hear from you. I too have a BHP with the mag disconnect removed, I just didn't know if there was any new language in the upcoming law which stated such changes were no longer allowed. Good to hear that's not the case.

Regarding the law and attaching ammunition to a rifle/shotgun, this definitely has me interested. I'll see if I can track down the case and read the actual ruling, this sort of thing would be another good point to hammer home and seek/force DOJ confirmation. Sounds like it might be time for another letter for our friends at the DOJ.

[Cardinal Sin]

Ya know I heard about that case too but for the life of me cannot find info on it. I heard that the book "how to own a gun and stay out of jail" may actually contain the case in question.. . . . . . . but i dont have the book nor know anyone who has one:( But, if anyone of you guys finds the answer to ammo on a buttstock or shell carrier let me/us know:)

[Librarian]

Ya know I heard about that case too but for the life of me cannot find info on it. I heard that the book "how to own a gun and stay out of jail" may actually contain the case in question.. . . . . . . but i dont have the book nor know anyone who has one:( But, if anyone of you guys finds the answer to ammo on a buttstock or shell carrier let me/us know:)
It's People v Clark (1996) 45 CalApp.4th 1147
http://login.findlaw.com/scripts/callaw?dest=ca/caapp4th/45/1147.html

Lots of threads here with the relevant text posted.

[Dr. Peter Venkman]

Dr. Venkman,

Any idea on a reference number for the appeals case or do you know where I might be able to obtain the text of the ruling? Thanks again.

P.S. That's a big twinkie.

People v. Clark (1996) 45 Cal.App.4th 1147 , 53 Cal.Rptr.2d 99
[No. D023104. Fourth Dist., Div. One. May 16, 1996.]

http://www.hoffmang.com/firearms/People-v-Clark-(1996).pdf

[Cardinal Sin]

Ok, I read the article/link . . . but can someone decipher it in plain english, lol:p

[blackrazor]

Oh well, it turns out the law is, in fact, very clear on this issue.

I was wondering if it might be possible, in light of this court case, to carry an SU-16CA with a loaded mag in the stock area while in your vehicle.

After reading this case, it turns out this is almost certainly illegal. The penal code clearly states that, when travelling, a firearm is considered loaded if any unexpended shells/cartridges are attached to any part of the firearm.

The reason the guy in this case got off was that he was arrested under a different section of the penal code; a section wherein the defintion of a loaded firearm is not provided. The prosection deferred to the definition of loaded according to a different section of the penal code (the ammunition attached anywhere to the gun definition), the appelate judge reversed this because that definition was essentially not the commonly understood definition (the judge claimed that in the absence of further legal defining terms, a loaded gun is only one that has a round in the chamber).

Bottom line? When you are driving in your car or in public, loaded means having ammo touching any part of the gun. In any other part of the penal code where the word "loaded" is not defined, "loaded" means having a round in the chamber.

[hoffmang]

blackrazor,

I beg to differ. Though you can argue this is dicta, this line of reasoning goes on for a while:


We note Penal Code section 12031 states it is defining the term "loaded" "for the purposes of this section" (Pen. Code, § 12031, subd. (g)); it does not state it is applicable to a Health and Safety Code offense nor does Health and Safety Code section 11370.1 refer to the Penal Code definition. Second, even if we were to accept the Attorney General's assertion that the definition of "loaded" contained in Penal Code section 12031, subdivision (g) applies to Health and Safety Code section 11370.1, subdivision (a), we would still conclude the shotgun here was not loaded.

And:

Our conclusion that the Legislature intended "loaded" as used in Penal Code section 12031 to reflect the common definition is supported by the court in People v. Heffner (1977) 70 Cal.App.3d 643, 650 [139 Cal.Rptr. 45], which reached the same conclusion
("the apparent purpose [of the 'loaded' definition] is to make it clear that for purpose of section 12031 the usual meaning of 'loaded firearm' is to apply."). In Heffner, the court noted when the Legislature adopted Penal Code section 12031, it also adopted another Penal Code statute which contained a special definition of "loaded," i.e., that a firearm was loaded if the firearm and unexpended ammunition were in the immediate possession of the same person. This definition applied to the offenses of bringing a "loaded" firearm into certain state governmental offices and residences of certain state officers and legislators. (People v. Heffner, supra, 70 Cal.App.3d at p. 650; Pen. Code, § 171e.) Since Heffner, the Legislature has adopted this special definition of "loaded" for the offense of carrying a loaded firearm with an intent to commit a felony. (Pen. Code, [45 Cal.App.4th 1155] §§ 12001, subd. (j); 12023.) fn. 1 Significantly, the Legislature has not amended the common definition of "loaded" as used in section 12031 nor elected to provide a specialized definition of "loaded" for Health and Safety Code section 11370.1.

Bottom line is that the Court of Appeals things loaded takes on the usual definition we all expect. The SU-16 stock held magazines are not a loaded firearm as long as there is no magazine in the magazine well nor no round in the chamber.

That doesn't mean you wouldn't catch initial grief from LEO or the DA.

-Gene

[Cardinal Sin]

Sooooo . . . A shotgun with shells in the side-saddle, buttstock or sling is legal:confused:, But if there are shell in the mag and or chamber it is loaded?

[hoffmang]

What People v. Clark looks to say is this:

1. A shotgun is not loaded if there aren't rounds in its magazine or its chamber.

2. A shotgun is loaded if there are shells in the magazine or its chamber.

The same would apply to rifles.

-Gene

[Librarian]

Sooooo . . . A shotgun with shells in the side-saddle, buttstock or sling is legal:confused:, But if there are shell in the mag and or chamber it is loaded?
According to Clark, yes. Note the magazine is not relevant if it is both removable and removed from the magazine well (not usually possible with shotguns, but applicable to other weapons).

The effect of Clark is to narrow that 'attached in any manner' to something approaching sensible.

hoffmang, isn't dicta sort of 'writings by the court that are not needed to get to the ruling it makes'? Could the court have gotten to the Clark ruling without defining 'loaded' the way it did?

[blackrazor]

I think the problem here is that there is more than one definition of the word "loaded", and the definition depends on which part of the penal code you are citing.

The case of the People v. Clark seems to apply to the definition of loaded with regards to Health & Safety Code, Section 11370.1 subdivision a.

I don't know if you can safely say that the "loaded" definition provided in Clark applies to the other definition of "loaded" defined in Penal Code Section 12031, which prohibits the possession of a loaded rifle/shotgun in a vehicle or public place.

Not saying I can't be wrong, hell, PROVE ME WRONG! Please! :)

[hoffmang]

Ok blackrazor, let me try to explain what People v. Clark says.

I'm going to paraphrase my first quote above. "Loaded" isn't defined in the Health and Safety Code and CA DOJ would like the court to use the definition in 12031. The court finds that loaded has its plain meaning, and even if the court applied the definition in 12031, the court would find that having shells in the stock does not even meet the 12031 definition.

The basic principal in a criminal context is that when there are two arguable interpretations, the accused gets the benefit of the best interpretation, especially if that goes along with the common understanding.

Here is the long quote:

We note Penal Code section 12031 states it is defining the term "loaded" "for the purposes of this section" (Pen. Code, § 12031, subd. (g)); it does not state it is applicable to a Health and Safety Code offense nor does Health and Safety Code section 11370.1 refer to the Penal Code definition.

Second, even if we were to accept the Attorney General's assertion that the definition of "loaded" contained in Penal Code section 12031, subdivision (g) applies to Health and Safety Code section 11370.1, subdivision (a), we would still conclude the shotgun here was not loaded.

[2] A statute "must be given a reasonable and commonsense interpretation consistent with the apparent purpose and intention of the Legislature, practical rather than technical in nature, and which, when applied, will result in wise policy rather than mischief or absurdity. [Citations.]" (Beaty v. Imperial Irrigation Dist. (1986) 186 Cal.App.3d 897, 902 [231 Cal.Rptr. 128].) "The words must be construed in context in light of the nature and obvious purpose of the statute where they appear. [Citation.]" (Decker v. City of Imperial Beach (1989) 209 Cal.App.3d 349, 354 [257 Cal.Rptr. 356]; Lakin v. Watkins Associated Industries (1993) 6 Cal.4th 644, 659 [25 Cal.Rptr.2d 109, 863 P.2d 179].)

[1b] The Attorney General urges a literal interpretation should be adopted, i.e., that if an unexpended shell is "attached in any manner" to a [45 Cal.App.4th 1154] firearm, then the firearm is loaded, regardless of whether the shell has been attached in a manner in which it can be fired from the firearm. This literal interpretation, while supported by words contained in the statute, does not appear to comport with the legislative intent.

The Legislature in Penal Code section 12031, subdivision (g), provided some examples of how a shell would be "attached" to a firearm so that the firearm is loaded, i.e., in the firing chamber, magazine or clip; situations in which the firearm would be "loaded" in the usual meaning of the word, i.e., the shell is placed in a position from which it can be fired. Significantly, the Legislature also provided that a muzzle-loader firearm must be capped or primed, have a powder charge and ball in the barrel or cylinder before it is deemed "loaded," again a definition which is consistent with the common meaning of the term "loaded," i.e., ready for firing.

Given the examples are all consistent with an intent to use the common meaning of "loaded," it follows the Legislature's use of the phrase "attached in any manner" to the firearm was intended to encompass a situation where a shell or cartridge might be attached to a firearm or "loaded" for firing by some unconventional method. The phrase does not demonstrate a clear Legislative intent to deem a firearm loaded no matter how a shell is attached to a firearm; in particular, it does not indicate a clear intent to deem a gun "loaded" when the ammunition, as here, is in a storage compartment which is not equivalent to either a magazine or clip and from which the ammunition cannot be fired.

Our conclusion that the Legislature intended "loaded" as used in Penal Code section 12031 to reflect the common definition is supported by the court in People v. Heffner (1977) 70 Cal.App.3d 643, 650 [139 Cal.Rptr. 45], which reached the same conclusion ("the apparent purpose [of the 'loaded' definition] is to make it clear that for purpose of section 12031 the usual meaning of 'loaded firearm' is to apply."). In Heffner, the court noted when the Legislature adopted Penal Code section 12031, it also adopted another Penal Code statute which contained a special definition of "loaded," i.e., that a firearm was loaded if the firearm and unexpended ammunition were in the immediate possession of the same person. This definition applied to the offenses of bringing a "loaded" firearm into certain state governmental offices and residences of certain state officers and legislators. (People v. Heffner, supra, 70 Cal.App.3d at p. 650; Pen. Code, § 171e.) Since Heffner, the Legislature has adopted this special definition of "loaded" for the offense of carrying a loaded firearm with an intent to commit a felony. (Pen. Code, [45 Cal.App.4th 1155] §§ 12001, subd. (j); 12023.) fn. 1 Significantly, the Legislature has not amended the common definition of "loaded" as used in section 12031 nor elected to provide a specialized definition of "loaded" for Health and Safety Code section 11370.1.


Here is the whole case: http://www.hoffmang.com/firearms/People-v-Clark-(1996).pdf

I can't find People v. Heffner (1977) 70 Cal.App.3d 643 online and I don't have lexis, but it looks to add credence to this.

-Gene

[Librarian]

The lead to Heffner isPeople v. Heffner , 70 Cal.App.3d 643
[Crim. No. 30197. Court of Appeals of California, Second Appellate District, Division One. June 13, 1977.]

THE PEOPLE, Plaintiff and Respondent, v. DOUGLAS REED HEFFNER, Defendant and Appellant

(Opinion by Lillie, Acting P.J., with Thompson and Hanson, JJ., concurring.) [70 Cal.App.3d 644]

COUNSEL

Weinstein, Shelley & Proctor and Robert R. Shelley for Defendant and Appellant.

John K. Van de Kamp, District Attorney, Harry B. Sondheim and George M. Palmer, Deputy District Attorneys, for Plaintiff and Respondent.

Evelle J. Younger, Attorney General, Jack R. Winkler, Chief Assistant Attorney General, S. Clark Moore, Assistant Attorney General, and William R. Pounders, Deputy Attorney General, as Amici Curiae on behalf of Plaintiff and Respondent.

OPINION

LILLIE, Acting P. J.

Following certification by the appellate department of the superior court, and good cause appearing therefor, the within appeal was transferred from the municipal court to this court for determination of whether Penal Code section 12031, subdivision (a) fn. 1 applies to the weapon known as a "Taser."

Defendant's vehicle was stopped by police for investigation of a Vehicle Code violation; as defendant exited the vehicle, the officer observed a Taser in a holster on his belt, determined that it was "loaded" and arrested him. Defendant was convicted in the municipal court of violating section 12031, subdivision (a). The appellate department of the superior court (Judge Alarcon dissenting) reversed the judgment.

Whether section 12031, subdivision (a) applies to a Taser depends on whether the Taser is construed as a "firearm" within the meaning of the statute, and, if it is, whether it can be construed to be a "loaded firearm" as defined by section 12031, subdivision (e), Penal Code. [70 Cal.App.3d 647]
If you're a member at Findlaw, you can see the whole case here (http://login.findlaw.com/scripts/callaw?dest=ca/calapp3d/70/643.html).

[AJAX22]

I have an email from the CA DOJ which states that they do not consider a rifle with a loaded magazine which is not inserted into the rifle to be loaded.

They also noted that there is no requirement that a long gun be locked or secured in any way.

It would be legal for you to have a pile of loaded magazines on the seat next to you with your rifle laying next to it and you wouldn't be breaking the law.

but if a police officer wants to nab you all he has to do is slap a mag into the rifle.

[hoffmang]

I bow down to Librarian's superior Google/Findlaw fu.

-Gene