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View Full Version : 12026.1 vs. 12026.2


MudCamper
09-17-2007, 8:23 PM
I'm creating another single sheet (2-page) flyer. This one will cover most of the issues that come up in regard to Open Carry. I've got most of it sorted out, but I am having trouble with 12026.1 and 12026.2. Yeah, those sections aren't really about open carry, but inbetween instances of open carry, circumstances would arise that would require following 12025 in forms other than 12025(f), and therefore you'd have to understand 12026.

There has been a lot of debate, and even more misreading of 12026, but there's not a lot of fact, and I don't know of any case law yet.

First, most people mistakingly assume that 12026.1 and 12026.2 are restrictions on transporting firearms. They are not. They are exceptions to 12025. That's the opposite meaning there.

Now, 12025 prohibits carrying a concealed firearm. 12026.1 states, simply, that 12025 does not apply if the firearm is in a locked container. It also defines locked container.

12026.2 lists a large number of additional exceptions to 12025, but then, near the very end (b) it states that all of these exceptions require that the firearm be in a locked container. It then goes on to define the container again, same wording as in 12026.1.

So why is 12026.2 even there? 12026.1 already stated that 12025 does not apply when the firearm is in a locked container. 12026.2 defines all kinds of places you can go to/from but it does not reference 12026.1. They both stand separate. They both offer exceptions to 12025. It is as though, and it seems many people have assumed, that 12026.2 was supposed to superscede 12026.1, but it does not implicitly state that anywhere. So why don't we all just ignore 12026.2 and carry handguns in our cars in lock boxes all the time. And like another old post stated (while I was searching for answers on this) what code are you actually violating if you carry a handgun (unloaded) in your car in a lock box all the time? Not 12025, because 12026.1 states it does not apply. Not 12026.2 - it's not a crime - not something you can't do - it's only a list of things you can do.

I guess what I'm asking for here is does anybody know of any case law about these sections, or any other clarifying information?

Thanks.

PS: Here's the draft of my document: http://www.paul.net/guns/CaliforniaOpenCarry.pdf

And I don't know if these urls work, but here's the PC: http://www.leginfo.ca.gov/cgi-bin/waisgate?WAISdocID=0853796541+3+0+0&WAISaction=retrieve

Liberty1
09-17-2007, 8:50 PM
I'll have to punt to an attorney. I'll call an Asst. DA I know but it will be off the record. But he is pro carrying and his opinion will only help if your case is assigned to him and he declines prosecution citing 12026.1a.

MudCamper
09-19-2007, 10:24 AM
I think I've figured it out.

12026.1 only applies to transporting in your vehicle and to/from your vehicle.

12026.2 applies to transporting to/from various places, but never mentions a vehicle. So if you are walking to/from the exempted places (like home/business) you are legal because 12026.2 applies then. Also a side note, 12026.2(b) only applies to travel exemptions. So the motion picture excemption does not require a locked container, but all the rest do require it.

So, you can carry a handgun in your vehicle in a locked box, all the time. The restrictions about deviations from your destination are only in 12026.2, not in 12026.1.

I'm positive this is correct. But I'm also pretty sure that 99% of all cops don't understand this code correctly.

Librarian
09-19-2007, 12:26 PM
I think you're trying too hard.

As a preface, I can't find any case law on the point, and I've seen no legal opinion on it. Several posters over the years have indicated they were going to seek legal advice about this, but have never come back and shared the result.

You clearly have part of this right. The crime of carrying a concealed firearm is defined in 12025, and 12026ff are exceptions.

12026.1 is clearly an exception for vehicle transport, to/from [(a)(2)] and in [(a)(1)].

But your interpretation of 12026.2, in my opinion, is wishful thinking. The Legislature clearly does not want us to do what you suggest 12026.1 empowers.

Look at 12026.1(b) (b) The provisions of this section do not prohibit or limit the
otherwise lawful carrying or transportation of any pistol, revolver,
or other firearm capable of being concealed upon the person in
accordance with this chapter.

12026.1 is a section. 12000-12999.x is the chapter. In this language, I believe the legislature has applied 12026.2 against 12026.1.

I'll happily accept case law or a legal opinion, but until then, 12026.2 exists, by its existence it must have an effect, and pending clarification, the plain language of a list of destinations seems to have the effect of limiting the places where those without CCW can carry a concealable handgun without violating 12025.

MudCamper
09-19-2007, 2:46 PM
...12026.1 is a section. 12000-12999.x is the chapter. In this language, I believe the legislature has applied 12026.2 against 12026.1.

...the plain language of a list of destinations seems to have the effect of limiting the places where ...

Well I disagree. It doesn't seem that way to me. Yeah, I'm not a cop or a DA, so my opinion means squat. I realize that. But if what you are saying ist true, then 12026.1 is completely useless wasted space in the PC. But the fact that it specifically is about vehicles, and 12026.2 is conspicuously missing any referece to vehicles, then why apply it any other way?

I am totally rewriting my carry document. When I have something half-decent I will post it. I will continue to solicit actual legal or authorative interpretations as well. The fact of the matter is there is no case law for this. Using only the intarweb I've found lots of cases that reference 12026, but all of those examples are talking about how 12026 was originally put in to prevent local governments from creating licensing requirements.

MudCamper
09-19-2007, 3:03 PM
(b) The provisions of this section do not prohibit or limit the
otherwise lawful carrying or transportation of any pistol, revolver,
or other firearm capable of being concealed upon the person in
accordance with this chapter.


Doesn't that say that this section does not limit the other lawful transportation in this chapter? Doesn't that specifically say it doesn't limit 12026.1 or any other part of the chapter? Does't this agree with my point? Or am I going blind from reading too many legal documents... :)

Librarian
09-19-2007, 3:27 PM
Doesn't that say that this section does not limit the other lawful transportation in this chapter? Doesn't that specifically say it doesn't limit 12026.1 or any other part of the chapter? Does't this agree with my point? Or am I going blind from reading too many legal documents... :)Well, at least you're going blind from that instead of other (in)famous things...

No, the exact language was that it doesn't limit ... carrying ... or transportation ... in accordance with this chapter. My non-legal-trained mind says that means you have to be doing everything else legal - which I think means following the restricted destination list - as well as carrying in a locked container.

Honestly, I don't think it's a high risk thing to do - if it were, we'd be able to find case law, I expect. Almost all the 12025 violations I can find are also 'felon in possession' violations. I did write the DOJ for stats on 12025 prosecutions, but they didn't feel like looking up that level of detail, or maybe it just wasn't there.

OTOH, carrying a long gun around in the car gives all the advantages of carrying a handgun except concealability and close-quarters mobility, and completely avoids 12025 problems.

I see that as a solution to the same problem, and if so, I have to ask why take any risk at all?

I guess I'm way more risk-averse than you are. And I assuredly will not carry a handgun around in my car outside of reasonable destination limitations (at least the spirit of 12026.2, which I think is from/to "someplace it is legal to have and use a concealable weapon").

That being said, advising other people to ignore 12026.2 without a solid legal opinion seems to me to be a bad idea, and I'll continue to say so, if only so readers of these discussions have enough information to make informed choices.

After that, well, people make choices based on incomplete or uncertain information all the time. It mostly seems to work out OK.

MudCamper
09-19-2007, 3:48 PM
Yes. Caution is good. Bad advice is, well, just that. You are correct and I will clearly state where what I am saying is only opinion. And I'm not a risk taker either. Because I'm a family man, I choose not to take most of these "risks". It's not fair to my baby girl to go crusading for my rights to the point where I end up in jail pending being The Test Case.

One thing I still strongly disagree on though, is that 12026 (.1 and .2) are not restrictions. They are exemptions on a restriction. They are exemptions on 12025 specifically.

At any rate, I've updated the latest incarnation of my document here:

http://www.paul.net/guns/CaliforniaOpenCarry.pdf

Librarian
09-19-2007, 4:39 PM
One thing I still strongly disagree on though, is that 12026 (.1 and .2) are not restrictions. They are exemptions on a restriction. They are exemptions on 12025 specifically.
I can go along with that distinction - even if my interpretation of 12026.2 were to be correct, if it were not there 12025 would seem to prohibit going anywhere. Now that's a restriction. I'll remember to change my phrasing.