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View Full Version : Misdemeanor Dry Firing of a Flare Gun???


choprzrul
06-13-2011, 5:12 PM
San Luis Obispo County sheriff's deputies arrested two people Friday night after receiving reports that a woman was “dry firing” a flare gun at an Avila Beach bar.

Deputies arrested Carey Jay Johnson, 44, of Boulder Creek, Calif., on suspicion of threatening a public official, a felony. A 25-year-old woman from Aptos was arrested on suspicion of displaying a firearm in a threatening manner, a misdemeanor.

Full Story Here (http://www.sanluisobispo.com/2011/06/13/1640809/dry-firing-of-flare-gun-at-avila.html)

A flare gun is considered a firearm? It would have to be a handgun, serial number, DROS to purchase, etc would it not? Something seems fishy here.

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Burbur
06-13-2011, 5:22 PM
Caution, assumptions ahead:

Dry firing = pulling the trigger when unloaded
In a threatening manner = at somebody

Guns are not toys children, even flare guns

bigcalidave
06-13-2011, 5:40 PM
They are just finding whatever they can to charge her with, although she is lucky to not have been shot instead. You could stuff a 12ga into a flare gun and fire it... once.

It would be considered a firearm like a black powder handgun. Anyone can buy one, no dros etc, but loaded it becomes a firearm.

socalblue
06-13-2011, 6:02 PM
They are just finding whatever they can to charge her with, although she is lucky to not have been shot instead. You could stuff a 12ga into a flare gun and fire it... once.

It would be considered a firearm like a black powder handgun. Anyone can buy one, no dros etc, but loaded it becomes a firearm.

Not only that but a flare at close range is deadly, both from impact & fire (material is similar to a phosphorus grenade).

unusedusername
06-13-2011, 6:03 PM
You could stuff a 12ga into a flare gun and fire it... once.

Only if you don't want to keep your hand. Sounds like a case of "hold my beer and watch this!".

Flare guns can be quite dangerous, they will find something to charge that person with, but the charges will probably change between now and the court date..

luckystrike
06-13-2011, 6:05 PM
so a flair pistol needs to be transported in a locked container? lol

gun toting monkeyboy
06-13-2011, 6:07 PM
Not only that but a flare at close range is deadly, both from impact & fire (material is similar to a phosphorus grenade).

I dunno about deadly. There are videos on youtube of some drunken moron shooting himself in the head with one and surviving. I wouldn't recommend it, but it isn't like a 12 ga. slug hitting you.

bigcalidave
06-13-2011, 6:07 PM
I did say ONCE... :)

bigcalidave
06-13-2011, 6:09 PM
Flare:
http://4.bp.blogspot.com/_UeNcHOvqQ1A/SqM5Wqx0u9I/AAAAAAAABAU/df1zfAnwm_E/s400/flare_gun.jpg

Flair:
http://3.bp.blogspot.com/_axeScVj_ges/S8d-04k2R6I/AAAAAAAAAqw/MIUkqfl4aJM/s1600/jennifer-aniston-flair-office-space.jpg

choprzrul
06-13-2011, 6:16 PM
2 things:

1: So, when carried in your boat, they have to be in a locked container?

2: If I am carrying one in my back pocket, with a long tailed shirt hiding it, I could be busted for concealed carry?

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CHS
06-13-2011, 8:03 PM
1: So, when carried in your boat, they have to be in a locked container?


No.

In fact I'm pretty sure you're allowed to have LOADED firearms on a boat without being locked up.


2: If I am carrying one in my back pocket, with a long tailed shirt hiding it, I could be busted for concealed carry?


Only if it's loaded. Otherwise the law does not consider it a firearm.

However, the law very well may consider a flare gun a "firearm" or "handgun" if you're brandishing it (i.e. flaunting it in a threatening manner), in which case you could end up with charges similar to this womans.

jwkincal
06-13-2011, 8:58 PM
PC12001 (d) For the purposes of Sections 12025 and 12031, the term "firearm" also shall include any rocket, rocket propelled projectile launcher, or similar device containing any explosive or incendiary material whether or not the device is designed for emergency or distress signaling purposes.

It is a firearm for 12025 (concealed carry) and 12031 (loaded carry). Not sure that being unloaded would save you from 12025.

CHS
06-13-2011, 10:01 PM
PC12001 (d) For the purposes of Sections 12025 and 12031, the term "firearm" also shall include any rocket, rocket propelled projectile launcher, or similar device containing any explosive or incendiary material whether or not the device is designed for emergency or distress signaling purposes.
It is a firearm for 12025 (concealed carry) and 12031 (loaded carry). Not sure that being unloaded would save you from 12025.

I don't see how that would include a normal flare launcher.

Flare pistols don't fire rockets or rocket-propelled projectiles.

It would only be a firearm while it's a "similar device containing any explosive or incendiary material". If it's empty, it doesn't contain any explosive or incendiary material and is therefore not a firearm. If it's loaded, it's a firearm.

The only exception would be if it was SPECIFICALLY a "rocket propelled projectile launcher".

I've never seen any 12ga, 26.5mm, or 37mm flares that were rocket propelled.

Decoligny
06-13-2011, 10:06 PM
Only if you don't want to keep your hand. Sounds like a case of "hold my beer and watch this!".

Flare guns can be quite dangerous, they will find something to charge that person with, but the charges will probably change between now and the court date..

They actually make a metal tube insert in various calibers that willl turn a flare gun into a single shot handgun.

jwkincal
06-13-2011, 10:09 PM
I don't see how that would include a normal flare launcher.

Flare pistols don't fire rockets or rocket-propelled projectiles.

It would only be a firearm while it's a "similar device containing any explosive or incendiary material". If it's empty, it doesn't contain any explosive or incendiary material and is therefore not a firearm. If it's loaded, it's a firearm.

The only exception would be if it was SPECIFICALLY a "rocket propelled projectile launcher".

I've never seen any 12ga, 26.5mm, or 37mm flares that were rocket propelled.

Right. "containing" requires that it actually be loaded... makes sense in that context, I suppose.

CHS
06-13-2011, 11:02 PM
They actually make a metal tube insert in various calibers that willl turn a flare gun into a single shot handgun.

I have one. The BATFE (as well as CA law) declares that when the insert it in the flare pistol, it becomes a normal title 1 handgun, and all rules pertaining to handguns would then apply to it. With the insert removed, it is no longer a handgun.

dantodd
06-13-2011, 11:19 PM
I have one. The BATFE (as well as CA law) declares that when the insert it in the flare pistol, it becomes a normal title 1 handgun, and all rules pertaining to handguns would then apply to it. With the insert removed, it is no longer a handgun.

So, when UOC is outlawed people will be carrying a flare gun in one pocket, a barrel liner in another pocket and one round in their hat?

choprzrul
06-14-2011, 6:29 AM
I have one. The BATFE (as well as CA law) declares that when the insert it in the flare pistol, it becomes a normal title 1 handgun, and all rules pertaining to handguns would then apply to it. With the insert removed, it is no longer a handgun.

So, back to my question #1: If I have a flare gun in my boat (with a round chambered), and I am towing my boat through a school zone, then said flare gun must be in a locked case?

So, hypothetically, back to the original story: If they had loaded an INERT round into the flare gun, pointed it at the officer, and pulled the trigger; there would not be any firearms charges that could be brought since it is only considered a firearm if a live round is actually loaded. **GRANTED** this would be very dumb and most likely get you shot, but like I said 'hypothetically'.

Are there any other instances of devices that are chameleon in nature? In other words, a gun one second and not a gun the next second? How can the sale and possession of a flare gun be completely unregulated while a stripped AR15 lower is highly regulated. Put those two items on a table and ask 100 people which one is a gun; you know what the answers will be.

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randian
06-14-2011, 7:57 AM
So actually using a flare gun is illegal in California? Loading it would be unlicensed open carry of a loaded firearm, and firing it could either be (a) unlawful use of an incendiary device, or (b) unlawful discharge of a firearm.

CHS
06-14-2011, 8:48 AM
So, back to my question #1: If I have a flare gun in my boat (with a round chambered), and I am towing my boat through a school zone, then said flare gun must be in a locked case?


Since it's illegal to transport a loaded firearm, even in a locked container, no you could not do that. You would have to transport the flare gun unloaded. But then you wouldn't have to lock it up.


So, hypothetically, back to the original story: If they had loaded an INERT round into the flare gun, pointed it at the officer, and pulled the trigger; there would not be any firearms charges that could be brought since it is only considered a firearm if a live round is actually loaded. **GRANTED** this would be very dumb and most likely get you shot, but like I said 'hypothetically'.


I would be willing to bet that the law doesn't distinguish between live rounds and dummy/inert rounds. And I believe "brandishing" still applies even if it's not a real gun.


Are there any other instances of devices that are chameleon in nature? In other words, a gun one second and not a gun the next second? How can the sale and possession of a flare gun be completely unregulated while a stripped AR15 lower is highly regulated. Put those two items on a table and ask 100 people which one is a gun; you know what the answers will be.


Black powder firearms are not considered firearms for the purposes of transfer. Even one made yesterday. They are legal to transport concealed without having to be locked up. They are only considered firearms for the purposes of transfer and/or transport when they are loaded and primed.

CHS
06-14-2011, 8:49 AM
So actually using a flare gun is illegal in California? Loading it would be unlicensed open carry of a loaded firearm, and firing it could either be (a) unlawful use of an incendiary device, or (b) unlawful discharge of a firearm.

You realize that flare guns are made for use on the water, right, where none of this applies?

choprzrul
06-14-2011, 9:14 AM
You realize that flare guns are made for use on the water, right, where none of this applies?

Surely use would be authorized and expected on any of the state's inland water ways to include rivers and lakes. Those rivers and lakes are surely subject to CA PC, are they not?

.

choprzrul
06-14-2011, 9:34 AM
I would be willing to bet that the law doesn't distinguish between live rounds and dummy/inert rounds. And I believe "brandishing" still applies even if it's not a real gun.

Does this mean that I could get a 'Brandishing' charge for waiving an orange squirt gun around in public?

.

p_shooter
06-14-2011, 2:40 PM
IIRC, flare guns are required equipment on boats larger than a certain size, I want to say 26 feet. All my boats are under that limit, so it didn't apply to me, however I got one anyway. :D

There have been many instances of flare guns being used for self defense. The results are pretty underwhelming and, in every story, it just seem to piss the bad guys off even more.

loose_electron
06-14-2011, 4:18 PM
IIRC, flare guns are required equipment on boats larger than a certain size, I want to say 26 feet. All my boats are under that limit, so it didn't apply to me, however I got one anyway. :D

There have been many instances of flare guns being used for self defense. The results are pretty underwhelming and, in every story, it just seem to piss the bad guys off even more.

Flares are required as part of USCG mandated safety equipment, Flare Guns are not.

CHS
06-14-2011, 5:46 PM
Surely use would be authorized and expected on any of the state's inland water ways to include rivers and lakes. Those rivers and lakes are surely subject to CA PC, are they not?


Sure, but what does that have to do with this:

So actually using a flare gun is illegal in California? Loading it would be unlicensed open carry of a loaded firearm, and firing it could either be (a) unlawful use of an incendiary device, or (b) unlawful discharge of a firearm.


??

Quiet
06-14-2011, 8:37 PM
Does this mean that I could get a 'Brandishing' charge for waiving an orange squirt gun around in public?
No. Because an orange squirt gun is not a firearm or an imitation firearm.

If the squirt gun was painted black and looked like a real firearm...
... and you were waving it around in a threatening manner, then yes; you can be arrested for "brandishing a firearm" [PC 417(a)(2)].
... and you were displaying/exposing it in a public place in a non-threatening manner, then yes; you can be cited for "displaying an imitation firearm" [PC 12556(a)]



Penal Code 417
(a)(2) Every person who, except in self-defense, in the presence of any other person, draws or exhibits any firearm, whether loaded or unloaded, in a rude, angry, or threatening manner, or who in any manner, unlawfully uses a firearm in any fight or quarrel is punishable as follows:
(A) If the violation occurs in a public place and the firearm is a pistol, revolver, or other firearm capable of being concealed upon the person, by imprisonment in a county jail for not less than three months and not more than one year, by a fine not to exceed one thousand dollars ($1,000), or by both that fine and imprisonment.
(B) In all cases other than that set forth in subparagraph (A), a misdemeanor, punishable by imprisonment in a county jail for not less than three months.

Penal Code 12556
(a) No person may openly display or expose any imitation firearm, as defined in Section 12550, in a public place.
(d) Subdivision (a) shall not apply to the following, when the imitation firearm is:
(13) A device where the entire exterior surface of the device is white, bright red, bright orange, bright yellow, bright green, bright blue, bright pink, or bright purple, either singly or as the predominant color in combination with other colors in any pattern, or where the entire device is constructed of transparent or translucent materials which permits unmistakable observation of the device's complete contents. Merely having an orange tip as provided in federal law and regulations does not satisfy this requirement. The entire surface must be colored or transparent or translucent.
(e) For purposes of this section, the term "public place" means an area open to the public and includes streets, sidewalks, bridges, alleys, plazas, parks, driveways, front yards, parking lots, automobiles, whether moving or not, and buildings open to the general public, including those that serve food or drink, or provide entertainment, and the doorways and entrances to buildings or dwellings.

Penal Code 12550
As used in this article, the following definitions apply:
(c) "Imitation firearm" means any BB device, toy gun, replica of a firearm, or other device that is so substantially similar in coloration and overall appearance to an existing firearm as to lead a reasonable person to perceive that the device is a firearm.