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Old 05-30-2008, 10:30 PM
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Default What is "loaded" in California?

What is “loaded”?


As much as effort has been made to be accurate,

This is not legal advice!

This is a layperson’s summary of written law, with sufficient references that anyone could research the content.

For actual legal advice, consult YOUR attorney, whom you will PAY for an opinion.

Use your best judgement, including getting competent legal advice, before you act.



Note: ‘concealed’ and ‘how to transport’ are NOT included here.

FAQ first:
Yes, ammunition may be carried in the same container as the gun – loose ammunition or ammunition in ammo boxes does not make a gun loaded, because the ammunition is NOT “placed into a position from which it can be fired”.

Yes, you may transport loaded magazines and speed loaders, so long as they are not inserted into the magazine well or cylinder of the firearm. That does not make a gun loaded, because the ammunition carried that way is NOT “placed into a position from which it can be fired”.

No, a loaded magazine is not the same as a loaded weapon, and possession of a weapon and a loaded magazine for that weapon does not, necessarily, mean you have a loaded weapon.
Anyone who asserts something contrary to the above 3 points is simply wrong. That does not mean you cannot be arrested by uninformed or badly trained law enforcement, or charged with the crime of carrying a loaded weapon by an uninformed or politically motivated prosecutor. It does mean that, if it goes to court and you have good representation, the prosecution should lose on the law.

Your comfort level may lead you to do more than the law requires.

EXPLANATION:
California law has several usages of the term loaded in the Penal code and elsewhere.

The most common definition of loaded is from Penal Code 12031
Quote:
12031. (a) (1) A person is guilty of carrying a loaded firearm when he or she carries a loaded firearm on his or her person or in a vehicle while in any public place or on any public street in an incorporated city or in any public place or on any public street in a prohibited area of unincorporated territory.

[Since this post concentrates on loaded, other parts of 12031 are omitted, including the definitions of other terms in (a)(1).]

(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.
THIS 12031(g) DEFINITION HAS BEEN MODIFIED BY CASE LAW!!!

The case is People v. Clark (1996) 45 Cal.App.4th 1147 , 53 Cal.Rptr.2d 99 available at this link.

The key paragraphs of the decision are these:
Quote:
The term "loaded" has a commonly understood meaning: "to put a load or charge in (a device or piece of equipment) a gun" or "to put a load on or in a carrier, device, or container; esp: to insert the charge or cartridge into the chamber of a firearm." (Webster's New Collegiate Dict. (1976) p. 674.) Under the commonly understood meaning of the term "loaded," a firearm is "loaded" when a shell or cartridge has been placed into a position from which it can be fired; the shotgun is not "loaded" if the shell or cartridge is stored elsewhere and not yet placed in a firing position. The shells here were placed in a separate storage compartment of the shotgun and were not yet "loaded" as the term is commonly understood.

There is nothing in Health and Safety Code section 11370.1 which indicates the Legislature did not intend to use the term "loaded" in its commonly understood meaning.

We note Penal Code section 12031 states it is defining the term "loaded" "for the purposes of this section" (Pen. Code, § 12031, subd. (g)); it does not state it is applicable to a Health and Safety Code offense nor does Health and Safety Code section 11370.1 refer to the Penal Code definition.

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.

[2] A statute "must be given a reasonable and commonsense interpretation consistent with the apparent purpose and intention of the Legislature, practical rather than technical in nature, and which, when applied, will result in wise policy rather than mischief or absurdity. [Citations.]" (Beaty v. Imperial Irrigation Dist. (1986) 186 Cal.App.3d 897, 902 [231 Cal.Rptr. 128].) "The words must be construed in context in light of the nature and obvious purpose of the statute where they appear. [Citation.]" (Decker v. City of Imperial Beach (1989) 209 Cal.App.3d 349, 354 [257 Cal.Rptr. 356]; Lakin v. Watkins Associated Industries (1993) 6 Cal.4th 644, 659 [25 Cal.Rptr.2d 109, 863 P.2d 179].)

Given the examples are all consistent with an intent to use the common meaning of "loaded," it follows the Legislature's use of the phrase "attached in any manner" to the firearm was intended to encompass a situation where a shell or cartridge might be attached to a firearm or "loaded" for firing by some unconventional method. The phrase does not demonstrate a clear Legislative intent to deem a firearm loaded no matter how a shell is attached to a firearm; in particular, it does not indicate a clear intent to deem a gun "loaded" when the ammunition, as here, is in a storage compartment which is not equivalent to either a magazine or clip and from which the ammunition cannot be fired. Our conclusion that the Legislature intended "loaded" as used in Penal Code section 12031 to reflect the common definition is supported by the court in People v. Heffner (1977) 70 Cal.App.3d 643, 650 [139 Cal.Rptr. 45], which reached the same conclusion …
So, following Clark, loaded means “a firearm is "loaded" when a shell or cartridge has been placed into a position from which it can be fired”. This is NOT restricted to shotguns.

NEW CASE LAW COULD CHANGE THIS – again, consult your own paid attorney for specifics regarding any legal action.


There are, however, MORE definitions of loaded for other circumstances. See next post.
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Last edited by Librarian; 06-03-2008 at 8:54 AM..
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