PDA

View Full Version : So what's the final word regarding the term "loaded"


TacFan
07-30-2007, 8:19 PM
I would like to start carrying my pistol gripped shotgun in the car with me. If I just load the magazine tube and not the chamber, is it still "considered loaded firearm" ? What about having the shells in a side saddle ?

Any input will be appreciated. Thanks

hoffmang
07-30-2007, 8:22 PM
I think you would lose the "loaded" argument in court if there were rounds in the tube magazine. However, having rounds in a side saddle is clearly legal. Read People v. Clark (http://www.hoffmang.com/firearms/People-v-Clark-(1996).pdf).

-Gene

TacFan
07-30-2007, 8:24 PM
I think you would lose the "loaded" argument in court if there were rounds in the tube magazine. However, having rounds in a side saddle is clearly legal. Read People v. Clark (http://www.hoffmang.com/firearms/People-v-Clark-(1996).pdf).

-Gene


thanks Gene

TacFan
07-30-2007, 8:27 PM
"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 which 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." (Italics added.)
Using this definition, the court told the jury "A shotgun is deemed to be 'loaded' when there is an unexpended shell ... in, or attached in any manner to, the shotgun."

Actually, it doesn't seem like the side saddle attached to the shotgun would fly either :(

hoffmang
07-30-2007, 8:53 PM
Uhh.. Tac - did you read the case?


When the police seized the shotgun, it did not have a shell in the firing chamber. There were, however, three shells located in a covered compartment at the rear of the shotgun's stock. It is not possible to fire a shell from that location; a shell would have to be removed from the compartment and placed by hand in the chamber before it could be fired. A sheriff's deputy testified the shells were located in a "storage area."

...

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.

TacFan
07-30-2007, 8:57 PM
Uhh.. Tac - did you read the case?

Yes but the part that mentioned the shell is attached to the gun in any way, it is considered loaded. So like always, I'm confused about the Cali laws :cool:
But it seems like if it cannot be fired with the shells being attached, it is legit. I just don't know if I want to push it

tango-52
07-30-2007, 9:00 PM
Yes but the part that mentioned the shell is attached to the gun in any way, it is considered loaded. So like always, I'm confused about the Cali laws :cool:
Just ask someone at DOJ/BOF. I'm sure they would be happy to clear it right up. Probably even write you a letter! :p

hoffmang
07-30-2007, 9:02 PM
The court case controls. It was an appelate case. Their interpretation is binding on what defines loaded. They say a shotgun with rounds in the stock is not loaded. That means that a shotgun with rounds attached to the stock is not loaded. The AG was trying to posit their definition which you quoted. The court said, "no, the ammo has to be in a place where it is ready to fire to be considered loaded." Having to use your hands to move the shells from a side saddle to the chamber or tube magazine is exactly analogous to the Clark case.

-Gene

Solidmch
07-30-2007, 9:06 PM
Just ask someone at DOJ/BOF. I'm sure they would be happy to clear it right up. Probably even write you a letter! :p

Will the letter leave it up to 58 DA's:rolleyes:???

hoffmang
07-30-2007, 9:09 PM
Luckily this one is settled jurisprudence.

-Gene

artherd
07-30-2007, 9:09 PM
Statute law over-reached, the court found in People V. Clark that side-saddles (specifically) are not-loaded.

Consult your attorney, but in my non lawyer opinion People V. Clark is the current law of the land. (generally) Case Law trumps statute law when the two conflict. http://en.wikipedia.org/wiki/Case_law

Edited to add: YES, you practically have to be an attorney to own a gun in CA these days. And NO most cops are not attorneys, and under mistaken impression about, well, most laws. Period.

TacFan
07-30-2007, 9:52 PM
The court case controls. It was an appelate case. Their interpretation is binding on what defines loaded. They say a shotgun with rounds in the stock is not loaded. That means that a shotgun with rounds attached to the stock is not loaded. The AG was trying to posit their definition which you quoted. The court said, "no, the ammo has to be in a place where it is ready to fire to be considered loaded." Having to use your hands to move the shells from a side saddle to the chamber or tube magazine is exactly analogous to the Clark case.

-Gene

Yes but hypothetically speaking, if I was pulled over for a traffic stop and the officer spotted the shotgun on the passenger seat with the shells in the side saddle (attached to not the stock but the actual receiver), wouldn't the officer most likely take me in ? Or would they already know about the Clark case. It would most likely cost me some lawyer fees wouldn't you agree ?

JALLEN
07-30-2007, 9:53 PM
Be careful. It is only settled in the Fourth District, i.e. San Diego. It is not binding precedence in the rest of the state. Other courts of appeal may disagree, and sometimes do. It is very persuasive, as a prior holding of an appellate court, but not controlling. When district courts of appeal disagree, the Supreme Court has to settle it.

Also, your case will not be EXACTLY the same, in all likelihood, or different issues and/or arguments arise, giving rise to the possibility of a different result. OR, the court of appeal may decide that this prior case was decided in error and reverse its own precedence. You end up in jail in all events.

hoffmang
07-30-2007, 10:05 PM
Having an unloaded shotgun in the seat next to you will get you taken in regardless of whether you have shells.

They are your rights. Exercise them if you wish as they are not without risk.

-Gene

artherd
07-30-2007, 11:08 PM
Step off your porch in the morning, and you're mixed up in something. From there, it's all a matter of degrees.

Best!
-Ben.

Liberty1
07-30-2007, 11:57 PM
Be careful. It is only settled in the Fourth District, i.e. San Diego. It is not binding precedence in the rest of the state.

I'm sure you're correct, but my academy (a good bit North of there) was teaching it as the governing case for loaded in public. The standard, until the next case, is ammo that is attached to the firearm but it must also be in a position to fire. Separate loaded mags or shotgun shells in a holder on the butt stock are not at this time a loaded firearm.

All this talk of ammo touching the gun in any manner or it can't be in the same case as the unloaded gun or that ammo must be locked separately, or the gun must be out of reach or two steps away from firing etc... is just scuttlebutt and wives tales. Exceeding the laws requirements will distance you from the chance of becoming a test case or from a false arrest but it also distances you from having a legally functional firearm in public per the letter of the law if you need or want one.

CalNRA
07-31-2007, 12:45 AM
I'm sure you're correct, but my academy (a good bit North of there) was teaching it as the governing case for loaded in public. The standard, until the next case, is ammo that is attached to the firearm but it must also be in a position to fire. Separate loaded mags or shotgun shells in a holder on the but stock are not at this time a loaded firearm.


that's interesting, because I remember that there were LEOs on this very board who said that they will arrest someone if they found a magzine with rounds in it, but outside the locked in which the unloaded pistol lies.

I have called 5 different police agencies and the CHP said loaded mags outside the locked case=okay, consistent with their website, while the rest 4(2 county, 2 city) said they will arrest and let the court system sort it out. Since I am a full time college student who works 25 hours aweek to pay school costs and other bills, I have err on the safe side so I don't get expelled and lose my job.

JawBone
07-31-2007, 9:59 AM
Be careful. It is only settled in the Fourth District, i.e. San Diego. It is not binding precedence in the rest of the state. Other courts of appeal may disagree, and sometimes do. It is very persuasive, as a prior holding of an appellate court, but not controlling. When district courts of appeal disagree, the Supreme Court has to settle it.

Also, your case will not be EXACTLY the same, in all likelihood, or different issues and/or arguments arise, giving rise to the possibility of a different result. OR, the court of appeal may decide that this prior case was decided in error and reverse its own precedence. You end up in jail in all events.

In California Clark will be persuasive precedent in any other district. The goal of the Courts (unlike the DOJ/BOF) is to have State Laws apply consistently to all Californians.

artherd
07-31-2007, 12:08 PM
Liberty1, you're probally the most educated LEO on this subject I have ever met. Good work, could use more out there like you.

Best!
Ben.
I'm sure you're correct, but my academy (a good bit North of there) was teaching it as the governing case for loaded in public. The standard, until the next case, is ammo that is attached to the firearm but it must also be in a position to fire. Separate loaded mags or shotgun shells in a holder on the butt stock are not at this time a loaded firearm.

All this talk of ammo touching the gun in any manner or it can't be in the same case as the unloaded gun or that ammo must be locked separately, or the gun must be out of reach or two steps away from firing etc... is just scuttlebutt and wives tales. Exceeding the laws requirements will distance you from the chance of becoming a test case or from a false arrest but it also distances you from having a legally functional firearm in public per the letter of the law if you need or want one.

simonov
07-31-2007, 12:28 PM
Yes but hypothetically speaking, if I was pulled over for a traffic stop and the officer spotted the shotgun on the passenger seat with the shells in the side saddle (attached to not the stock but the actual receiver), wouldn't the officer most likely take me in ? Or would they already know about the Clark case. It would most likely cost me some lawyer fees wouldn't you agree ?

Well, sure. But what's the point of bringing up all these edge cases if you are worried about stuff like that?

If you want to stay completely out of trouble, why not leave the gun unambiguously unloaded, no side saddle, no butt cuff, no nothing? Better yet, leave it in the trunk where no one can see it.

The fact is you can get arrested for almost anything. As I tell my shooting partners when we are shooting my bullet button AR-15, "Sure, I can get arrested for this, but either the charges will be dropped or I'll win in court."

If that's a problem for you (and I don't blame you if it is, when there's no compelling need to invite trouble), then don't fool around with edge cases.

Every week there's a new thread about shipping high capacity magazines into California, and everyone dances around how they should be disassembled, yadda yadda, when we all know the very simple truth: it is illegal to ship high capacity magazines into California, and meanwhile magazines are pretty simple, reliable devices that sure don't break often enough to justify all these threads about importing them as parts.

I will disagree with some of the posters in this thread and suggest the California laws are really not that confusing if you intend to behave in what almost any of us would consider a reasonably normal manner. Read the law, it tells you what is and isn't permitted. It only gets fuzzy as you move into these edge cases and guess what? All law is like that, which is why my attorney gets $400 per hour interpreting it or me.

Liberty1
07-31-2007, 12:54 PM
Liberty1, you're probally the most educated LEO on this subject I have ever met. Good work, could use more out there like you.

Best!
Ben.

I've made pistol / revolver possession, and loaded in public laws and their resulting case law my personal specialty. Others make drugs or traffic their's. I knew nothing about the AW, high cap, or even the federal school zone BS until I was drawn here by BWO's case other then what impressions were left out of half a year of exhausting cramming in the academy (some years ago now). Memorize for and forget after the test was SOP. There is too much info to learn effectively which is why they stress reading the PC on your own. Most officers just learn on the job and that means making mistakes. Hopefully none are so grievous as to cost one their job or land in prison or cause an innocent to have their rights and lives uprooted and violated! But it happens. The actions of DOJ documented here just make me ashamed. :(

All the firearms I've taken off the street have been stolen and or in the possessin of a felon. Bad guys don't lock up or open carry in holsters so there is no good reason to harass people who do.

Now I'm building an OLL but can't decide on an upper. Would like a chrome lined POF but can't afford it and also the cost of .223 (will get a reloading press). I'm going to use a MMG and just bought some 30rds (sorry to the law abiding, I don't like the law). But most of my expendable cash for this summer went to Matt C's defense! And I'm glad for it.

Cheers!

Librarian
07-31-2007, 1:33 PM
Every week there's a new thread about shipping high capacity magazines into California, and everyone dances around how they should be disassembled, yadda yadda, when we all know the very simple truth: it is illegal to ship high capacity magazines into California, and meanwhile magazines are pretty simple, reliable devices that sure don't break often enough to justify all these threads about importing them as parts.

I will disagree with some of the posters in this thread and suggest the California laws are really not that confusing if you intend to behave in what almost any of us would consider a reasonably normal manner. Read the law, it tells you what is and isn't permitted. It only gets fuzzy as you move into these edge cases and guess what? All law is like that, which is why my attorney gets $400 per hour interpreting it or me.
Hear, hear! Well said.

Possibly shorter - if you think you need - or have found - a loophole, it's time to run it past your lawyer; assume or avoid risk after you have full knowledge.

LECTRIKHED
07-31-2007, 9:31 PM
I think this question calls for a DOJ letter. Someone from another board asked this question earlier this year. Here is the response they came up with. The question specifically asked if it was legal to transport a shotgun with shells attached to the outside of the buttstock, with the magazine and chamber empty.

It's the same 58 DA bullsh1t as usual. If any attorneys are interested, I can put you in contact with someone who has the original.



This is in response to your recent correspondence to the Bureau of Firearms, regarding the transportation of firearms with loaded magazines. The California Penal Code states simply that firearms must be transported in an unloaded condition, with the additional requirement for concealable handguns of a fully enclosed, secure locked container.

There are 58 district attorneys offices in California, one for each of the 58 counties. Each county seat has a presiding superior court that, among other duties, is charged with the reasonable and accurate interpretation of existing law as it applies to that jurisdiction. Several superior courts in California have to date ruled that loaded magazines or clips stored directly with a firearm does in fact constitute a loaded firearm in those jurisdictions. From this, it seems clear that a legal precedent has been set on the issue you are asking for clarification on. Specifically, anyone transporting loaded magazines directly with (or in) a firearm in California arguably does so at his or her own legal peril.

I hope this information is helpful to you. If you have any further questions or need further assistance, please contact the Bureau of Firearms at (916) 263-4887, or via e-mail.

hoffmang
07-31-2007, 11:39 PM
There is no need for a BoF letter. Clark is more definitive than any BoF opinion. If you don't understand why, I'd suggest reading the link Artherd posted above and researching how case law works.

-Gene

FreedomIsNotFree
07-31-2007, 11:47 PM
I think this question calls for a DOJ letter. Someone from another board asked this question earlier this year. Here is the response they came up with. The question specifically asked if it was legal to transport a shotgun with shells attached to the outside of the buttstock, with the magazine and chamber empty.

It's the same 58 DA bullsh1t as usual. If any attorneys are interested, I can put you in contact with someone who has the original.



This is in response to your recent correspondence to the Bureau of Firearms, regarding the transportation of firearms with loaded magazines. The California Penal Code states simply that firearms must be transported in an unloaded condition, with the additional requirement for concealable handguns of a fully enclosed, secure locked container.

There are 58 district attorneys offices in California, one for each of the 58 counties. Each county seat has a presiding superior court that, among other duties, is charged with the reasonable and accurate interpretation of existing law as it applies to that jurisdiction. Several superior courts in California have to date ruled that loaded magazines or clips stored directly with a firearm does in fact constitute a loaded firearm in those jurisdictions. From this, it seems clear that a legal precedent has been set on the issue you are asking for clarification on. Specifically, anyone transporting loaded magazines directly with (or in) a firearm in California arguably does so at his or her own legal peril.

I hope this information is helpful to you. If you have any further questions or need further assistance, please contact the Bureau of Firearms at (916) 263-4887, or via e-mail.

What the questions posed to the CADOJ failed to do was clarify that we are talking about an otherwise law abiding citizen and NOT a gang member. I believe there is some distinction in the penal code.

brownie
08-01-2007, 10:36 AM
So, if a loaded magazine is in close proximity to an unloaded pistol--say in the same bag--is the pistol considered unloaded or loaded?

Librarian
08-01-2007, 11:23 AM
So, if a loaded magazine is in close proximity to an unloaded pistol--say in the same bag--is the pistol considered unloaded or loaded?

Not chambered, not in the mag well = unloaded.

A less-than-up-to-date LEO might disagree. For that to be an issue, one would need to come to the attention of an LEO in his/her official capacity.

LECTRIKHED
08-01-2007, 11:45 AM
So, if a loaded magazine is in close proximity to an unloaded pistol--say in the same bag--is the pistol considered unloaded or loaded?

No, I provided the DOJ response just because it is useless. If you read it, it actually does not answer anything. If anything it implies incorrect legal interpretations.

Zhukov
08-01-2007, 10:58 PM
I know this may be getting repetitive, but I would like to be 100% sure of this.

If I transport a handgun in a locked container and have a loaded mag in the container but NOT in the gun, that is legal?

hoffmang
08-01-2007, 11:00 PM
I know this may be getting repetitive, but I would like to be 100% sure of this.

If I transport a handgun in a locked container and have a loaded mag in the container but NOT in the gun, that is legal?

The above is legal.

-Gene

Davidwhitewolf
08-02-2007, 11:10 AM
Might as well nail this down. Must a loaded magazine be in a locked container of some sort in order to be legally transported?

Example would be if I transport an unloaded handgun in a locked container, and have a loaded magazine outside that container and unconcealed (i.e., sitting openly in the cupholder of the car).

tonb
08-02-2007, 11:18 AM
Loaded magazines do not need to be locked up.

From the CHP website:
I will be traveling to California and want to carry my weapon. I currently have a concealed weapon permit. How can I legally transport my weapon while driving through the state?

California law does not recognize concealed weapon permits from other states; therefore, they would not be held valid. If you wish to transport a handgun during your California visit, it should be carried unloaded in a locked container. In the absence of a suitable container, you may secure the unloaded handgun in the locked trunk of a passenger car. Ammunition may be kept in the same container or trunk, but the handgun must remain unloaded with no rounds in the cylinder and no loaded magazines in the magazine well.

If you have additional questions, contact the California Department of Justice at 916-227-3703.



http://www.chp.ca.gov/html/answers.html

Davidwhitewolf
08-02-2007, 11:29 AM
Great, thank you!

tonb
08-02-2007, 11:48 AM
So to recap the laws as I understand them.

Automotive transportation
- Magazines: Can be loaded and do not need to be locked
- Handguns: Must be unloaded and in a locked case or compartment other than the glovebox or center console. OR they may be unconcealed and left in plain view. Unloaded means no rounds in the chamber, magwell or in the cylinder
- Long guns: Concealment and locking of them is a non-issue. They cannot have loaded magazines in the magwell and no rounds can be chambered, however the Parker case has defined shell holders legal.

Personal transportation of handguns
- Magazines: Can be loaded and carried openly or concealed.
- Handguns: Can be carried openly when unloaded in most places (except for the obvious, federal buildings, etc) Can be carried openly loaded in non-incorporated areas, more or less, backcountry.

hoffmang
08-02-2007, 6:06 PM
You are basically correct. However, the case about what is a loaded weapon in California is People v. Clark. Parker is the Supreme Court bound DC case that may or may not get renamed.

-Gene

Liberty1
08-05-2007, 12:36 AM
Personal transportation of handguns
- Magazines: Can be loaded and carried openly or concealed.
- Handguns: Can be carried openly when unloaded in most places (except for the obvious, federal buildings, etc) Can be carried openly loaded in non-incorporated areas, more or less, backcountry.

Spend some time at opencarry.org california forum for a better understanding of this. It can and is being done but one must be aware of how discharge prohibited ordinances effect being loaded in "back country" areas.

CitaDeL
08-05-2007, 10:13 AM
me and my friend was thinking about going up to big bear mtn in a few weeks. there's a range about 5 minutes away from a cabin he owns up there.

but im kind of confused about this whole Open carry Unloaded in unincorporated areas. what exactly is big bear designated as? incorporated, unincorporated, etc? on his property I realize we are entitled to open carry, but what about traveling to the general store? or to the range?

i wouldn't dare do this around the beach. but since we're going up into the mountains i feel people may have a more welcoming attitude toward open carried firearms. it would be nice to exersize my rights in a more accepting part of the state now and then

Incorporated areas most often refer to cities with incorporated city limits. A couple of clues that youre in an incorporated area is if the town has a city council, it's own police force or fire department and signs indicating "City of ______" and "city limits".

Big Bear Lake does have incorporated city limits. If you chose to open carry there, you would need to carry unloaded to comply with PC12031 and avoid any area where you should reasonably know there is a school (626.9). The regular no guns areas apply (State, Federal and public buildings as well as State and National parks.)

One of the prohibited areas in unincorporated territory is on a public road or highway- You could open carry (exposed in a belt holster) in your vehicle in unincorporated territory, but on the public road it would need to be unloaded to be in adherence to the law.

Assuming the "General Store" was in unincorporated territory, you could carry loaded and exposed, provided the owner or agent of the owner didnt ask you to leave.

I am not aware of any other restrictions that might apply locally. I recommend you seek out any local and county ordinances that might pertain to firearms before going.