Loaded Mags and Empty Rifles are AOK in CA

[AJAX22]

This comes up now and then on here, so I figured I'd post this e-mail that I received from the CADOJ for y'all. I didn't word my questions in the best possible way, but it does contain usefull information. note that not having them in the same container is 'above and beyond what is required'



Dear Mr. *********,

Your request for information has been received and reviewed. Pursuant to
subsection (g) of section 12031 of the California Penal Code a firearm
shall be deemed to be loaded for the purposes of this section when there
is an unexpended cartridge or shell, consisting of a case that holds a
charge of powder and a bullet or shot, in, or attached in any manner to,
the firearm, including, but not limited to, in the firing chamber,
magazine, or clip thereof attached to the firearm; except that a
muzzle-loader firearm shall be deemed to be loaded when it is capped or
primed and has a powder charge and ball or shot in the barrel or
cylinder.

Q: Is it ok to transport a loaded magazine in conjunction with a
unloaded firearm. provided that the magazine is not attached to the
firearm at the time of transport?
A: Yes, so long as the magazine is not attached to the firearm in any
manner, above and beyond that it would be wise to not store the loaded
magazine within the same locked container as the unloaded firearm. The
same would apply to the loaded speedloader and revolver.

Q: Is it ok to keep a rifle in the trunk of your car along with a
seperate locked container that contains a loaded magazine?
A: In actuality unloaded long guns are not required to be transported
within a locked container inside of a vehicle as unloaded handguns are.
So the answer to your question is, Yes.

Q: Do stripper clips constitute a loaded magazine? as the clip does not
at any time attach to the rifle during function. (the specific example
would be that of the SKS)
A: Yes, as do belt-fed ammunition links.

Q: On a second debate that is going on is whether or not a legal
firearm, properly stored has to be disclosed during a traffic stop.

(1.) Is refusal to answer grounds for a probable cause search of the
vehicle?
A: We are not qualified to answer legal questions such as this, please
consult an attorney.

(2.) Are CCW permit holders required to reveal that they have a firearm
in the vehicle?
A: We are not qualified to answer legal questions such as this, please
consult an attorney as this seems to deal with Search & Seizure laws.

Sincerely,

Nate Barrell, Analyst
Firearms Division


>>> <********@hotmail.com> 06/15/06 5:08 PM >>>
Below is the result of your feedback form. It was submitted by
(********@hotmail.com) on Friday, June 16, 2006 at 00:08:01
---------------------------------------------------------------------------
Name: **** *********
Telephone: ***-***-****
feedback: Hello,

Some friends and I are engaged in an accademic debate over what
constitutes a 'Loaded Firearm' for the purpouse of penal code Penal Code
12031(g)

Is it ok to transport a loaded magazine in conjunction with a unloaded
firearm. provided that the magazine is not attached to the firearm at
the time of transport.

Likewise is it alright to transport a full speedloader in conjunction
with a revolver.


Is it ok to keep a rifle in the trunk of your car along with a seperate
locked container that contains a loaded magazine?

Do stripper clips constitute a loaded magazine? as the clip does not at
any time attach to the rifle during function. (the specific example
would be that of the SKS)


on a second debate that is going on is whether or not a legal firearm,
properly stored has to be disclosed during a traffic stop.

Is refusal to answer grounds for a probable cause search of the vehicle?


Are CCW permit holders required to reveal that they have a firearm in
the vehicle?

We appriciate the help, it will be nice to resolve this debate.


Thank you,

we look forward to your answer
---------------------------------------------------------------------------



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confidential and/or legally privileged information. It is solely for the
use of the intended recipient(s). Unauthorized interception, review, use
or disclosure is prohibited and may violate applicable laws including
the Electronic Communications Privacy Act. If you are not the intended
recipient, please contact the sender and destroy all copies of the
communication.

[Blackwater OPS]

Oh, well since the DOJ says it's legal, lets all drive around with OLLs and loaded mags! It's not like the DOJ would ever send out misleading or flat out wrong information! :rolleyes: Carry a loaded mag at your own risk.

[AJAX22]

I intend to, it was one of the primary motivations for buying an OLL and doing a gripless build.

Remember, those OLL's started coming into this state because we finally forced the DOJ to admit it was legal.

[grammaton76]

The DOJ has now contradicted itself by saying that a loaded stripper clip is a loaded magazine, as it's a reversal of previously held positions.

However, the most important thing is that law enforcement officers frequently believe that a loaded magazine is a loaded weapon. If your goal is to avoid being hassled, a loaded mag is not a good idea.

Stripper clips, stored seperately, are a safer route than magazines - but, as the DOJ response here shows, they may be viewed as the same thing.

If I had a trunk in my vehicle, though, I would have a gripless AK in the trunk, with loaded mags in my center console, if the loaded, seperate magazine thing were clearly something that LEOs agree is all right in CA.

[RANGER295]

Since you used the term “firearm” and they specifically mentioned “speed loaders” for revolvers, I read that to mean that this does not only apply to rifles. This is interesting given the discussions we were having on this issue the other day. After that thread I was a little worried about having hand gun mags in the cab of my truck even though the hand gun was in a separate locked container. Thanks for posting this.

[pnkssbtz]

This reminds me of when I tried to ask the Board of Eqaulization a question on sales and use tax.

I called, emailed and wrote a letter. And got back 3 different responses, two of which were from the same person.


Good going gubment!

[anotherone]

Someday I'll figure out why so many of you guys like to live dangerously...

[Dont Tread on Me]

Good stuff. I'm actually going to say something positive about the DOJ. I'm glad that they answered the questions.

[Blackwater OPS]

Good stuff. I'm actually going to say something positive about the DOJ. I'm glad that they answered the questions.

It's not like they do it out of the goodness of their hearts....

[edwardm]

In regards to the question about refusal to answer giving the police probable cause to search your automobile, the short answer is "no".

Remember, you have a 5th Amendment right to be silent when questioned by the government. Exercise of one right (5th) cannot lead to the exclusion of another right (4th). In California criminal practice, for example, there are special hearings for a defendant to contest admission of evidence taken in alleged violation of 4th Amendment protections. In these hearings, generally, statements made by the defendant cannot then be used against him in later proceedings. This allows the defendant to exercise both his 4th and 5th Amendment rights without jeopardizing either.

To put the icing on the cake, in both State v. Wise, 72 Or. App. 58, 695 P.2d 68 (1985) and U.S. v. Alexander, 835 F.2d 1406 (11th Cir. 1988), the courts held that refusing consent to an automobile search does not, itself, give probable cause for a search.

The courts will look at whether or not probable cause existed at the time of the search as a totality of the circumstances surrounding the search, and rarely take any single factor as controlling.

[Dont Tread on Me]

It's not like they do it out of the goodness of their hearts....

They've just set the bar so low lately with regards to performing their role that I'm surprised the questions were not just blown off with a "58 DAs" smoke bomb.

[artherd]

People v. Clark has confirmed this in case law years ago.

Ammunition must be in a position ready for firing. Ie a loaded mag IN THE MAGWELL is loaded.

However, a shell holder on the back of a bolt gun full of rounds is NOT LOADED!

The test is "attached in any way to" AND "In a position ready for firing" Both elements must be present.

All the idoit cops out there parroting 'loaded mag = loaded gun' are flat out hard core ****ing wrong.

[FreedomIsNotFree]

People v. Clark has confirmed this in case law years ago.

Ammunition must be in a position ready for firing. Ie a loaded mag IN THE MAGWELL is loaded.

However, a shell holder on the back of a bolt gun full of rounds is NOT LOADED!

The test is "attached in any way to" AND "In a position ready for firing" Both elements must be present.

All the idoit cops out there parroting 'loaded mag = loaded gun' are flat out hard core ****ing wrong.


What do you mean Artherd? You mean no matter how many times we go over this and cite the law some continue to incorrectly claim loaded mags = loaded gun? Astonishing I say....

[JOEKILLA]

Always travel with the magazine empty and separated from the rifle. Better to be safe than sorry in Kali.:D

[Blackwater OPS]

All the idoit cops out there parroting 'loaded mag = loaded gun' are flat out hard core ****ing wrong.

Heheh, that one made me laugh.

Always travel with the magazine empty and separated from the rifle. Better to be safe than sorry in Kali.:D

Which has always been my point. Honestly, I just don't want people to think they should tell every cop they meet hey, I have loaded mags in here but it's legal cause' the internet said so.

[hoffmang]

I spent a good 30 minutes trying to answer this in another thread today.

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

This case shows that DOJ is trying to put forward an interpretation of the "loaded" gun that the California courts do not agree with. As long as a loaded magazine is not in the magazine well and there is no round in the chamber, the gun is not loaded - even if loaded clips are attached to other parts of the firearm.

This is not to say that LEO understands this, but beyond the hassle, you will win. You are not at all at risk if you just have loaded magazines that are not attached to the firearm.

I can afford to defend myself from bogus charges so my SU-16 will have loaded magazines in its stock. Others may wish to be a touch more conservative.

-Gene

[Jarhead4]

I spent a good 30 minutes trying to answer this in another thread today.

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

This case shows that DOJ is trying to put forward an interpretation of the "loaded" gun that the California courts do not agree with. As long as a loaded magazine is not in the magazine well and there is no round in the chamber, the gun is not loaded - even if loaded clips are attached to other parts of the firearm.

This is not to say that LEO understands this, but beyond the hassle, you will win. You are not at all at risk if you just have loaded magazines that are not attached to the firearm.

I can afford to defend myself from bogus charges so my SU-16 will have loaded magazines in its stock. Others may wish to be a touch more conservative.

-Gene


If you really want to push it to the limit, the magazine can be in the magazine well as long as it is not latched. Until it is latched, it is not attached. But you better have a very good attorney. A San Diego County Sheriff Commander told me about this 14 years ago. I have had other LEO tell me that as long as the magazine is not in the magazine well you're good to go.

[rorschach]

All the idoit cops out there parroting 'loaded mag = loaded gun' are flat out hard core ****ing wrong.

Back in the day, I made a few good pinches and took some righteous scumbags off the streets for having a loaded pistol (loaded mag in very close proximity of a semi-auto pistol) tacked on to concealed weapons charges.

Does that mean I'm an idiot??? It's a bigtime judgement call on the officers part.

Hmmm...

[hoffmang]

rorschach,

Did your busts predate 1996? Also, you were quite likely to have charges stick if the weapon itself was being transported unlawfully.

-Gene

[Librarian]

Back in the day, I made a few good pinches and took some righteous scumbags off the streets for having a loaded pistol (loaded mag in very close proximity of a semi-auto pistol) tacked on to concealed weapons charges.

Does that mean I'm an idiot??? It's a bigtime judgement call on the officers part.

Hmmm...
I doubt it means you're an idiot. It probably means you followed your training, and nuance of law is usually not what I expect from cops - if it isn't obviously bogus, let the lawyers sort it out.

And there are places in the PC where possession of the weapon and ammunition for it DO mean 'loaded gun' - 171e. A firearm shall be deemed loaded for the purposes of Sections
171c and 171d whenever both the firearm and unexpended ammunition
capable of being discharged from such firearm are in the immediate
possession of the same person. - that's possession at the state Capitol, legislative offices or the Governor's mansion, and
12001(j) For purposes of Section 12023, a firearm shall be deemed to be
"loaded" whenever both the firearm and the unexpended ammunition
capable of being discharged from the firearm are in the immediate
possession of the same person.

12023. (a) Every person who carries a loaded firearm with the
intent to commit a felony is guilty of armed criminal action.
(b) Armed criminal action is punishable by imprisonment in a
county jail not exceeding one year, or in the state prison.
So, if your collar was associated with a Bad Guy "who carries a loaded firearm with the intent to commit a felony", or you could reasonably have thought so, then the 'loaded weapon' charge seems like it might have been appropriate.

[Dont Tread on Me]

I spent a good 30 minutes trying to answer this in another thread today.

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

...


thanks for posting! Good information.

[rorschach]

rorschach,

Did your busts predate 1996? Also, you were quite likely to have charges stick if the weapon itself was being transported unlawfully.

-Gene

Mmm, had to have been about 99-2001, I left in early 2002. Actually one guy had a 380 concealed in his crotch with a loaded mag in his jacket pocket. The other was a biker with both pistol and mag duct taped to the bike. Believe it or not, in both of those cases, the def's plead guilty.

Put it this way, I was not making pinches on otherwise law-abiding citizens. All my gun beefs were always in conjunction with other charges. Not all LEO are out to get you, only bad guys. Lord knows I had let a few otherwise good, honest folks go for stuff when the law said otherwise.

And yes people, CHP doesnt just change tires and write speeding tickets on the freeway, I worked surface streets in unincorporated East L.A. for a good part of my 3 year career before going back to work in the family biz. Lots of "real crime" in addition to traffic copper duties.

[artherd]

Hey, I'm not saying they didn't deserve it, but those charges were unlawful if you made them after 1996.

You tell me, what do we call cops who lock people up for things that are not infact crimes? I am not saying it wasn't morally proper to stick it to these dirtbags any way you could, only you can answer that. But it was probally factually improper! Idoit may be too kind of a word if you try to do it to me.

People v. Clark turned this from a judgement call, to malicious prosecution, ignorance of the law on the part of the invididual is no excuse. This cuts both ways between police and non-LE. It is not that I expect every officer to know every law(actually I expect that no more laws will be written than the average person, let alone officer can fit in their head), rather when there is doubt I expect leiniency instead of handcuffs!



Loaded mag does NOT equal loaded firearm under normal circumstances*.

(*there is a seperate statute for Street Gang members that specifically re-defines loaded to included a loaded mag and loaded gun on the person, look it up, and look up People v Clark as they discussed the matter in detail.

Back in the day, I made a few good pinches and took some righteous scumbags off the streets for having a loaded pistol (loaded mag in very close proximity of a semi-auto pistol) tacked on to concealed weapons charges.

Does that mean I'm an idiot??? It's a bigtime judgement call on the officers part.

Hmmm...

[artherd]

Mmm, had to have been about 99-2001, I left in early 2002. Actually one guy had a 380 concealed in his crotch with a loaded mag in his jacket pocket. The other was a biker with both pistol and mag duct taped to the bike. Believe it or not, in both of those cases, the def's plead guilty.

Both of those were not loaded guns if the guy was otherwise clean. (see above for exemptions, street gang members, in commission of a felony, armed criminal action, etc.)

The sad part is, much training still teaches 'loaded mag = loaded gun' those who propogate this misinformation are mostly to blame in my opinion. Of course the officer swearing out under penalty of purjury in a court that he found a loaded gun is culpable as well.

And yes people, CHP doesnt just change tires and write speeding tickets on the freeway, I worked surface streets in unincorporated East L.A. for a good part of my 3 year career before going back to work in the family biz. Lots of "real crime" in addition to traffic copper duties.

One of my shooting buddies is CHP and worked UC auto theft, etc. Overall I think CHP does a very good job and holds themselves to a high standard.

[hoffmang]

Rorschach,

Both cases you're quoting are cases where the handgun was being transported illegally. You were quite correct that in both cases the perp was violating the penal code as to the concealing or transport of a handgun. Sadly their public defender wasn't smart enough to only plead to the illegally concealed or not in locked box misdemeanor/felony wobbler and object to the "loaded" charge.

If either of these guys got extra time for the "loaded" charge, they didn't deserve it.

-Gene

[artherd]

Gene is correct, illegal handgun transportation, but not a loaded weapon.

I am too tired to find the cite, but there is another case, that many often cite incorrectly as "loaded mag = loaded gun". In that case, a Concealed loaded mag witih gun in plain view was held to be a concealed firearm. Not a loaded firearm.

[Librarian]

In that case, a Concealed loaded mag with gun in plain view was held to be a concealed firearm. Not a loaded firearm. That's how I read it, too (well, more precisely, that the court ruled that concealed mag made the whole weapon concealed - edit for clarification). People v Hale, 43 Cal.App.3rd 353 - Findlaw link (http://login.findlaw.com/scripts/callaw?dest=ca/calapp3d/43/353.html).

Key paragraph, I think: [1a] On the facts of the case we conclude that Officer Price had reasonable cause to search the front seat of Hale's automobile and that consequently his discovery of contraband was an incident of a lawful search. [43 Cal.App.3d 356] The facts known to the officer at the time of the search gave him reasonable cause to suspect Hale was committing a crime, viz. unlicensed carrying of a firearm concealed in a vehicle (Pen. Code, § 12025 fn. 2). Only partial concealment of a firearm is required. (People v. Koehn, 25 Cal.App.3d 799, 802 [102 Cal.Rptr. 102]; People v. Tarkington, 273 Cal.App.2d 466, 469 [78 Cal.Rptr. 149]; People v. Linden, 185 Cal.App.2d 752, 757 [8 Cal.Rptr. 640].) One portion of the automatic pistol, the housing and barrel, was visible, and it was reasonable for the officer to suspect concealment nearby of the remaining portion of the firearm, the automatic clip and ammunition. (See Green v. State (Okla.Crim.) 489 P.2d 768.) A firearm disassembled into two or more parts, can nevertheless constitute an operable weapon within the meaning of the Dangerous Weapons Control Law. (People v. Ekberg, 94 Cal.App.2d 613, 616-617 [211 P.2d 316]; see also, State v. Ware (Fla.App.) 253 So.2d 145.)

[E Pluribus Unum]

Another note:

A licensed hunter, while hunting or traveling to/from a hunt can have a loaded magazine in a long gun (rifle or shotgun) and as long as there is not a round in the chamber, it is legal.

One can also have a fully loaded magazine with the bolt locked back... that is legal as well.