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Old 06-04-2008, 1:19 PM
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Decoligny Decoligny is online now
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I'll be sending a copy to all 58 California DAs with the following letter:

Dear Sir/Ma'am

I recently contacted the DOJ, Bureau of Firearms with a question, and was advised that this matter would be most appropriately addressed by the DA’s Office.

Question: If a law abiding citizen were to be legally driving a motor vehicle, with a firearm for which they are the registered owner, openly carried in a belt holster (not concealed per PC12025(f)), and had a magazine with ammunition for that firearm in immediate possession, but didn't have the magazine attached to the firearm in any way (not loaded per PC 12031(g)), and wasn't driving within 1,000 feet of a K-12 school (PC 626.9), and wasn't driving within the State Capitol area (PC 171c), would they be in violation of California Penal Code?

My concern is: I don't want to misinterpret the Penal Codes. The DOJ won't answer my specific question. The attorneys I contacted won't answer my specific question, but are willing to take my money should I have to defend against criminal charges. If you, as my last resort, can't answer my specific question, how am I as a reasonable law abiding citizen supposed to completely and legally exercise my rights to the fullest extent possible within the law, and avoid arrest and prosecution?

If “Many jurisdictions in California are beginning to interpret the term "loaded firearm" to include a loaded magazine, or a person with ammunition on his or her person, in the same vehicle as an otherwise legally transported firearm for which that ammunition is designed”, and no crime has occurred, and the appropriate definition of “loaded firearm” (Penal Code 12031(g)) should be used, it appears to me that the “jurisdictions” aren't trying to enforce the law, but could be trying to impose their own viewpoint that only Law Enforcement Officers should be allowed to carry firearms by “discouraging” the carry of firearms through the implied threat of arrest/prosecution and associated legal expenses/time expenditure to defend one’s self.

I am aware that PC 12026.1 explains carrying a firearm, unloaded, in a locked container or vehicle trunk exempts a person from PC 12025. However, that's the extreme of compliance, like saying “To guarantee a child doesn’t drown, never let them get within 15 miles of any water more than 1/8” deep, or asking “How do I find where the Mexican border is so I don’t accidentally cross into Mexico?” and being told, “Don’t go south of Sacramento, you'll be fine.” It doesn’t answer the question asked.

I patiently await your reply


Decoligny




Atch: 1. E-mail to/from DOJ
2. “Is It Loaded?” Pamphlet


E-MAIL TO/FROM DOJ

From: Decoligny

It is my understanding that currently there is nothing in the Penal Code that prohibits a law abiding citizen from carrying an unloaded firearm in a belt holster and carrying a full magazine in a belt holder, while traveling in a motor vehicle (except within 1000 feet of a school zone), as long as the ammunition is in no way attached to the firearm.

It has been brought to my attention that Kern County Sheriff's Deputies are being trained that anyone, including law abiding citizens who are carrying both an unloaded firearm and ammunition for that firearm are to be considered as carrying a loaded firearm.

Which is the correct definition? If I were to drive with a firearm and ammunition outside of any prohibited areas (schools or state capital area), would I be violating the law?

DOJ RESPONSE:

Decoligny,

This is in response to your recent correspondence to the Bureau of Firearms, regarding driving in a motor vehicle with an exposed firearm and ammunition on your person. Many jurisdictions in California are beginning to interpret the term "loaded firearm" to include a loaded magazine, or a person with ammunition on his or her person, in the same vehicle as an otherwise legally transported firearm for which that ammunition is designed. This is a matter of interpretation of state law by local jurisdictions, and as such a matter most appropriately addressed with the local district attorney's office.

That said, you may want to refer to Section 12026.1 of the California Penal Code, regarding the transportation of a concealable firearm in a motor vehicle:

"12026.1. (a) Section 12025 shall not be construed to prohibit any citizen of the United States over the age of 18 years who resides or is temporarily within this state, and who is not within the excepted classes prescribed by Section 12021 or 12021.1 of this code or Section 8100 or 8103 of the Welfare and Institutions Code, from transporting or carrying any pistol, revolver, or other firearm capable of being concealed upon the person, provided that the following applies to the firearm: (1) The firearm is within a motor vehicle and it is locked in the vehicle's trunk or in a locked container in the vehicle other than the utility or glove compartment. (2) The firearm is carried by the person directly to or from any motor vehicle for any lawful purpose and, while carrying the firearm, the firearm is contained within a locked container. (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. (c) As used in this section, "locked container" means a secure container which is fully enclosed and locked by a padlock, key lock, combination lock, or similar locking device."

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.

Sincerely,

Brent George
Staff Services Analyst
California Department of Justice
Bureau of Firearms
Training, Information, and Compliance Section
(916) 263 – 4868

MY REPLY:

Mr. George

I found the information you provided to be quite interesting. You stated “Many jurisdictions in California are beginning to interpret the term "loaded firearm" to include a loaded magazine, or a person with ammunition on his or her person, in the same vehicle as an otherwise legally transported firearm for which that ammunition is designed.”

Is the California Penal Code so amorphous that its meaning can change from one jurisdiction to the next? I thought it was the job of the DOJ and the Attorney General’s Office to determine for the ENTIRE State what the proper interpretation of the law is.

From your own mission statement: “Bureau of Firearms staff will be leaders in providing firearms expertise and information to law enforcement, legislators, and the general public in a comprehensive program to promote legitimate and responsible firearms possession and use by California residents.”

Could you please enlighten me as to why DOJ Bureau of Firearms has not provided information to the various jurisdictions that the California Penal Code in fact has specific definitions of when a firearm is considered loaded?

Having a firearm and ammunition for that firearm in the possession of the same person only makes the firearm loaded in two specific circumstances.

Circumstance One: When a person is carrying a firearm that is loaded per the definition in PC 12001(j) and has the intent to commit a felony per PC 12023(a).

Circumstance Two: When the person is in any of the areas listed in PC 171c or PC 171d.

Could you explain to me why it is acceptable for "many jurisdictions" to treat law abiding citizens with the automatic assumption that they are "intent on committing a felony" when they have no reason to believe that they are criminals other than the lawful possession of an unloaded firearm?

The definition of “loaded firearm” in relation to a law abiding citizen is to be found in California Penal Code 12031(g):

“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.”

The definition of “concealed firearm” in relation to a law abiding citizen is to be found in California Penal Code 12025, and in subsection (f) it clearly states “Firearms carried openly in belt holsters are not concealed within the meaning of this section.

So, if a person were to be driving with a firearm in a belt holster (not concealed per PC12025(f)), and did not have ammunition attached to the firearm in any manner (not loaded per PC 120239(a)), and was not within 1,000 feet of a K-12 school or on the grounds of a University (PC 626.9) and was not driving within the State Capitol area (PC 171c), could you please tell me exactly how would they be violating ANY provision of the California Penal Code?

DOJ RESPONSE:

Decoligny,

This is in response to your recent correspondence to the Bureau of Firearms, regarding your follow-up e-mail concerning the transportation of a concealable handgun in a motor vehicle. Bear in mind that I can only advise you of applicable Penal Code sections, and of how laws have been applied in the past (left up to District Attorneys to prosecute individual cases). Beyond this, I cannot engage in legal debate with you, nor can I offer you legal advice.

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.

Sincerely,

Brent George
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