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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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Old 05-30-2008, 10:32 PM
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Default Less common usages of "loaded"

Less common usages of loaded and problems with possession of ammunition.

Post 2 of 3.

12001(j) only applies to 12023 (carry with intent to commit a felony).
Quote:
12001 (j) For purposes of Section 12023, a firearm shall be deemed to be "loaded" whenever both the firearm and the unexpended ammunition capable of being discharged from the firearm are in the immediate possession of the same person.

12023. (a) Every person who carries a loaded firearm with the intent to commit a felony is guilty of armed criminal action.

171e only applies inside the State Capitol, legislative offices, office of the Governor, Governor’s residence, etc.
Quote:
171c. Any person, except…, or a person holding a valid license to carry the firearm pursuant to Article 3 (commencing with Section 12050) of Chapter 1 of Title 2 of Part 4, who brings a loaded firearm into, or possesses a loaded firearm within, the State Capitol, any legislative office, any office of the Governor or other constitutional officer, or any hearing room in which any committee of the Senate or Assembly is conducting a hearing, or upon the grounds of the State Capitol, which is bounded by 10th, L, 15th, and N Streets in the City of Sacramento,

171d. Any person, … shall be punished by imprisonment in a county jail for not more than one year, by fine of not more than one thousand dollars ($1,000), or by both the fine and imprisonment, or by imprisonment in the state prison, if he or she does any of the following:
(a) Brings a loaded firearm into, or possesses a loaded firearm within, the Governor's Mansion, or any other residence of the Governor, the residence of any other constitutional officer, or the residence of any Member of the Legislature.
(b) Brings a loaded firearm upon, or possesses a loaded firearm upon, the grounds of the Governor's Mansion or any other residence of the Governor, the residence of any other constitutional officer, or the residence of any Member of the Legislature.

171e. A firearm shall be deemed loaded for the purposes of Sections 171c and 171d whenever both the firearm and unexpended ammunition capable of being discharged from such firearm are in the immediate possession of the same person.
Note that these definitions say nothing about magazines, only firearm and ammunition.


Fish and Game Code has a different definition:
Quote:
2006. It is unlawful to possess a loaded rifle or shotgun in any vehicle or conveyance or its attachments which is standing on or along or is being driven on or along any public highway or other way open to the public.
A rifle or shotgun shall be deemed to be loaded for the purposes of this section when there is an unexpended cartridge or shell in the firing chamber but not when the only cartridges or shells are in the magazine.

More obscure usages of loaded

There is a sentence enhancement for carrying concealed in PC 12025(b)(6)
Quote:
12025. (a) A person is guilty of carrying a concealed firearm when
he or she does any of the following:
(1) Carries concealed within any vehicle which is under his or her control or direction any pistol, revolver, or other firearm capable of being concealed upon the person.
(2) Carries concealed upon his or her person any pistol, revolver, or other firearm capable of being concealed upon the person.
(3) Causes to be carried concealed within any vehicle in which he or she is an occupant any pistol, revolver, or other firearm capable of being concealed upon the person.
(b) Carrying a concealed firearm in violation of this section is punishable, as follows:

(6) By imprisonment in the state prison, or by imprisonment in a county jail not to exceed one year, by a fine not to exceed one thousand dollars ($1,000), or by both that fine and imprisonment if both of the following conditions are met:
(A) Both the pistol, revolver, or other firearm capable of being concealed upon the person and the unexpended ammunition capable of being discharged from that firearm are either in the immediate possession of the person or readily accessible to that person, or the pistol, revolver, or other firearm capable of being concealed upon the person is loaded as defined in subdivision (g) of Section 12031.
(B) The person is not listed with the Department of Justice pursuant to paragraph (1) of subdivision (c) of Section 11106, as the registered owner of that pistol, revolver, or other firearm capable of being concealed upon the person.
(7) In all cases other than those specified in paragraphs (1) to (6), inclusive, by imprisonment in a county jail not to exceed one year, by a fine not to exceed one thousand dollars ($1,000), or by both that imprisonment and fine.
So, if you either have a conventionally ‘loaded’ concealed weapon, or have the concealed weapon and ammunition for it, AND the weapon is not registered to you, you may get state prison instead of county jail.


There is a sentence enhancement for having a weapon and having armor-piercing ammunition:
Quote:
12022.2. (a) Any person who, while armed with a firearm in the commission or attempted commission of any felony, has in his or her immediate possession ammunition for the firearm designed primarily to penetrate metal or armor, shall upon conviction of that felony or attempted felony, in addition and consecutive to the punishment prescribed for the felony or attempted felony, be punished by an additional term of 3, 4, or 10 years.
This is not quite ‘loaded’, but it is a case where possession of a kind of ammunition, without regard to whether it is actually in a weapon, is additionally a ‘bad thing’.


There is a sentence enhancement for those who commit defined street gang crimes and have both a weapon and a detachable magazine for it – whether or not there is ammunition and whether the weapon is loaded or unloaded (apparently in the 12031(g) sense):
Quote:
12021.5. (a) Every person who carries a loaded or unloaded firearm on his or her person, or in a vehicle, during the commission or attempted commission of any street gang crimes described in subdivision (a) or (b) of Section 186.22, shall, upon conviction of the felony or attempted felony, be punished by an additional term of imprisonment in the state prison for one, two, or three years in the court's discretion. The court shall impose the middle term unless there are circumstances in aggravation or mitigation. The court shall state the reasons for its enhancement choice on the record at the time of sentence.
(b) Every person who carries a loaded or unloaded firearm together with a detachable shotgun magazine, a detachable pistol magazine, a detachable magazine, or a belt-feeding device on his or her person, or in a vehicle, during the commission or attempted commission of any street gang crimes described in subdivision (a) or (b) of Section 186.22, shall, upon conviction of the felony or attempted felony, be punished by an additional term of imprisonment in the state prison for two, three, or four years in the court's discretion. The court shall impose the middle term unless there are circumstances in aggravation or mitigation. The court shall state the reasons for its enhancement choice on the record at the time of sentence.

Health and Safety Code 11370 and 11550 refer to a loaded firearm, but do not define loaded (see People v Clark notes, prior post).
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Last edited by Librarian; 06-01-2008 at 4:12 PM..
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Old 05-30-2008, 10:33 PM
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Default More concerns with ammunition

Post 3 of 3

More concerns with ammunition:

Liberty1 points out that possession of a firearm and the ammunition for it at a gun show is illegal, unless LEO, guard, or vendor
Quote:
12071.4. (a) This section shall be known, and may be cited as, the
Gun Show Enforcement and Security Act of 2000.

(g) No person at a gun show or event, other than security
personnel or sworn peace officers, shall possess at the same time
both a firearm and ammunition that is designed to be fired in the
firearm.
Vendors having those items at the show for sale or
exhibition are exempt from this prohibition...

(l) Unless otherwise specified, a first violation of this section
is an infraction. Any second or subsequent violation is a
misdemeanor. Any person who commits an act which he or she knows to
be a violation of this section is guilty of a misdemeanor for a first
offense.
uclaplinker found another one I missed (that's why group efforts are so useful!): Penal Code 12316(c) prohibits bringing ammunition onto school grounds:
Quote:
12316.
(c) Unless it is with the written permission of the school
district superintendent, his or her designee, or equivalent school
authority, no person shall carry ammunition or reloaded ammunition
onto school grounds, except sworn law enforcement officers acting
within the scope of their duties or persons exempted under
subparagraph (A) of paragraph (1) of subdivision (a) of Section
12027.

This subdivision shall not apply to a duly appointed peace
officer as defined in Chapter 4.5 (commencing with Section 830) of
Title 3 of Part 2, ... , a person holding a valid license to carry the
firearm
pursuant to Article 3 (commencing with Section 12050) of
Chapter 1 of Title 2 of Part 4, or an armored vehicle guard, who is
engaged in the performance of his or her duties, as defined in
subdivision (e) of Section 7521 of the Business and Professions Code.
A violation of this subdivision is punishable by imprisonment in a
county jail for a term not to exceed six months, a fine not to exceed
one thousand dollars ($1,000), or both the imprisonment and fine.
"district superintendent" seems to indicate K-12, but "equivalent school authority" might include colleges and universities as well.
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Last edited by Librarian; 09-24-2008 at 9:57 AM..
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Old 05-30-2008, 10:52 PM
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"What is 'loaded' in California?"


Anything over .08 B.A.C.





LOL
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Old 05-31-2008, 7:33 AM
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Very nice summary. Thanks
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Old 05-31-2008, 7:39 AM
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Excellent easy to understand guide. Please sticky this to alleviate threads asking these same questions where they get 50 different answers.

One central post.

Again, excellent
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Old 05-31-2008, 8:30 AM
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Yes, please sticky any and all Open Carry, CCW sans LTC, and Loaded Penal Code relevent posts by Librarian (he's a jolly good fellow!).

Sometimes carry advocates here feel we're the redheaded step children when compared to our well endowed OLL cousins!
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Old 05-31-2008, 8:50 AM
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Quote:
Originally Posted by blackedoutharley View Post
"What is 'loaded' in California?"
When I lived in Sac, I met a few legislators who fit that description. Funny watching them swing the martini glasses behind their backs when a photo op happened. Must be a trained mannerism that's covered in freshman initiation.
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Old 05-31-2008, 10:00 AM
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Someone needs to make this into a pretty printable PDF like the OC flyer.
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Old 05-31-2008, 4:25 PM
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Could somebody please get the guys at Targetmasters to read this thread. I had some clowns their crap their pants over load mags. Their Website continues the FUD.

http://targetmasterswest.com/_wsn/page10.html
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Old 05-31-2008, 4:46 PM
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You need to talk to an attorney and get a copy of the police report ASAP!

Write down everything you remember from start to finish.

PM sent
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Last edited by Liberty1; 05-31-2008 at 6:00 PM..
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Old 05-31-2008, 4:55 PM
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I commend you for OC. now contact T&M or a lawler of your own right away. Also, I think it's best you not discuss it here on the open forum.

BTW, great post Librarian.

Last edited by Saigon1965; 05-31-2008 at 6:15 PM..
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Old 05-31-2008, 5:33 PM
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Look you need top start getting used to the fact that this will cost you at least $5k. I said it over and over that someone needs to be video taping when you OC, but it's too late now. HOPEFULLY they will write the report the way it happened and not the way it supports their case. You should talk to Gene, (think someone is getting you his number) and call TMLLP on Monday. Maybe the Foundation can help you with bills, maybe not. Make SURE your house is very clean, you may be getting a visit with a warrant. It would be very easy for the DA to decide to charge this as a felony just so they can raid your house. If you are VERY lucky this won't cost you anything other than the LEGR fee and losing your gun for 30 days. If you are not lucky, it's going to cost you much more.

BTW, inform your CoC of the incident, better that they know now from you and you have a chance to tell them it's BS than they find out another way and no one believes a word you say.

Good luck, and if there is anything I can do to help let me know.

PEOPLE LET ME FRICKIN FILM IT OR GET SOMEBODY TO IF YOU ARE GOING TO OPEN CARRY!!!!!

Quote:
Originally Posted by Glin1216 View Post
For me.. this is kind of a big deal
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Old 05-31-2008, 5:41 PM
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Quote:
Originally Posted by Librarian View Post

What is "loaded" in California?
$987,000 in personal salary per year, minimum. Everything else is just peanuts.
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Old 05-31-2008, 5:46 PM
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Quote:
Originally Posted by Blackwater OPS View Post
Look you need top start getting used to the fact that this will cost you at least $5k. I said it over and over that someone needs to be video taping when you OC, but it's too late now. HOPEFULLY they will write the report the way it happened and not the way it supports their case. You should talk to Gene, (think someone is getting you his number) and call TMLLP on Monday. Maybe the Foundation can help you with bills, maybe not. Make SURE your house is very clean, you may be getting a visit with a warrant. It would be very easy for the DA to decide to charge this as a felony just so they can raid your house. If you are VERY lucky this won't cost you anything other than the LEGR fee and losing your gun for 30 days. If you are not lucky, it's going to cost you much more.

BTW, inform your CoC of the incident, better that they know now from you and you have a chance to tell them it's BS than they find out another way and no one believes a word you say.

Good luck, and if there is anything I can do to help let me know.

PEOPLE LET ME FRICKIN FILM IT OR GET SOMEBODY TO IF YOU ARE GOING TO OPEN CARRY!!!!!
I dont think filming open carry would have significantly altered the circumstances, other than draw the attention of onlookers with a camera person taping someone with a firearm on their hip. Yes- you should have recorders and cameras rolling when police arrive- but having someone shadow you with a camera rolling negates the 'non-event' that open carry usually is.

I have already pledged my support. I hope others are prepared to do the same, even if they dont fully endorse unloaded open carry in California.
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Old 05-31-2008, 5:53 PM
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Quote:
Originally Posted by Glin1216 View Post
removed
I've mentioned numerous times that LEOs (here in SD at least) might consider a unloaded gun and loaded mag a loaded gun. Usually I get people telling me I'm being a naysayer or whatever.

Im just trying to give you guys information so you know what you might experience. We all know what the law says, but the law isnt always black and white. If the law was as easy as "4 - 2 = 2", then we wouldnt need high priced lawyers to argue on our behalf.

I saw this post over over on the open-carry forums about a response from the DOJ about the unloaded gun and loaded mag issue. Sure it might be DOJ FUD, but it may explain why the Chino Hills Police seem to interepret Loaded in the same way as the San Diego Sherriff Dept.

http://opencarry.mywowbb.com/forum12/11082.html

Quote:
Mr. XXXXX,

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
Not every LEO or DA is going to interpret the law in the same way you do. You should be aware of that when you're dealing with stuff that is on the edge of being legal.
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Old 05-31-2008, 5:57 PM
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Originally Posted by CitaDeL View Post
I dont think filming open carry would have significantly altered the circumstances, other than draw the attention of onlookers with a camera person taping someone with a firearm on their hip. Yes- you should have recorders and cameras rolling when police arrive- but having someone shadow you with a camera rolling negates the 'non-event' that open carry usually is.
The camera person should be VERY discreet (no one should notice him) and only be filming if there is an incident and to document before starting what the purpose is of carrying and that the gun will be unloaded. I'm not saying make a E! reality show out of it, just have some video proving that the gun was unloaded in case the police report says otherwise or in case there are allegations of threats made.
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Old 05-31-2008, 5:59 PM
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"GLIN" is in touch with the "right people". If anyone has quoted GLIN please delete the qoute from your post.

Thanks
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Old 05-31-2008, 6:16 PM
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"GLIN" is in touch with the "right people". If anyone has quoted GLIN please delete the qoute from your post.

Thanks

Glad to hear.
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Old 05-31-2008, 6:20 PM
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Thanks for your support gents.
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Old 05-31-2008, 7:26 PM
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It's sometimes surprising how timing of one thing can coincide with other things...

An example or two of how the subject of this thread may be argued in practice would be a good addition.

In the meanwhile, does anyone see any substantive changes the first two posts should have? Changes in tone? More disclaimers?
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Old 05-31-2008, 7:35 PM
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Just remember that the law is never written in stone and is often only what the best lawyer in the court rooms says it is, or what the Judge happens to already believe.

Being right is not a bullet-proof vest, and it's not a get out of jail free card either.

That said, I encourage everyone to fully exercise all of their rights, publicly if you feel comfortable with the risk. And there WILL be risk anytime you publicly exercise your 2A rights, be it with open carry or posting pictures of your OLLs online. Just make sure you take every possible precaution if you do.
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Old 05-31-2008, 7:46 PM
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re the DOJ letter, saying in part
Quote:
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.
I guess those 'many jurisdictions' might be misinterpreting 12025(b)
Quote:
(b) Carrying a concealed firearm in violation of this section is punishable, as follows:
...
(6) By imprisonment in the state prison, or by imprisonment in a county jail not to exceed one year, by a fine not to exceed one thousand dollars ($1,000), or by both that fine and imprisonment if both of the following conditions are met:
(A) Both the pistol, revolver, or other firearm capable of being concealed upon the person and the unexpended ammunition capable of being discharged from that firearm are either in the immediate possession of the person or readily accessible to that person, or the pistol, revolver, or other firearm capable of being concealed upon the person is loaded as defined in subdivision (g) of Section 12031.

(B) The person is not listed with the Department of Justice
pursuant to paragraph (1) of subdivision (c) of Section 11106, as the registered owner of that pistol, revolver, or other firearm capable of being concealed upon the person.
by reading 'concealed' as 'concealable'. I would like to think a court would find that incorrect. I certainly do not know of any other statute that could even be warped into what Brent suggests 'many jurisdictions' may be doing, but that's one of the reasons one hires an attorney instead of an internet board poster.
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Old 05-31-2008, 7:52 PM
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Quote:
Originally Posted by Librarian View Post
re the DOJ letter, saying in part I guess those 'many jurisdictions' might be misinterpreting 12025(b) by reading 'concealed' as 'concealable'. I would like to think a court would find that incorrect. I certainly do not know of any other statute that could even be warped into what Brent suggests 'many jurisdictions' may be doing, but that's one of the reasons one hires an attorney instead of an internet board poster.
Even if they were misreading it as concealable, it still uses states

(b) Carrying a concealed firearm in violation of this section is punishable, as follows:
...
(6) By imprisonment in the state prison, or by imprisonment in a county jail not to exceed one year, by a fine not to exceed one thousand dollars ($1,000), or by both that fine and imprisonment if both of the following conditions are met:
(A) Both the pistol, revolver, or other firearm capable of being concealed upon the person and the unexpended ammunition capable of being discharged from that firearm are either in the immediate possession of the person or readily accessible to that person, or the pistol, revolver, or other firearm capable of being concealed upon the person is loaded as defined in subdivision (g) of Section 12031.

(B) The person is not listed with the Department of Justice
pursuant to paragraph (1) of subdivision (c) of Section 11106, as the registered owner of that pistol, revolver, or other firearm capable of being concealed upon the person.
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Old 05-31-2008, 8:10 PM
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Quote:
Originally Posted by Decoligny View Post
Even if they were misreading it as concealable, it still states

(b) Carrying a concealed firearm in violation of this section is punishable, as follows:
...
The critical hurdle here is that the firearm must be concealed to invoke any part of 12025.

Even satisfying 12025(b)(6)(A) and (B), having a concealable weapon not registered to the bearer and also having ammunition for it, means nothing if that weapon were not concealed. Such unconcealed possession is not a crime (without the state Capitol or street gang crime or intent to commit a felony circumstances, all different sections from 12025).
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Old 05-31-2008, 11:55 PM
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Originally Posted by Blackwater OPS View Post
Just remember that the law is never written in stone and is often only what the best lawyer in the court rooms says it is, or what the Judge happens to already believe.

Being right is not a bullet-proof vest, and it's not a get out of jail free card either.
It is kind of funny to hear you talk about this. I remember before your "ordeal" your posts sounded like theirs. Dogmatic rantings about how the government has no right to infringe on rights and "if it were you" you would fight it until the end... bla bla...

It is interesting how life experience has changed your tone a bit. The song is the same, but it is down a few octaves...
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Ignorance of the law is no excuse……..except for police.
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Old 06-01-2008, 9:34 AM
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thanks librarian for the summary. from what I gather from subsequent posts something happened during an open carry outing. I hope all goes well and would very much like to hear the results when it is all over.

I copied the first two posts (Post incident deletetion) into a word file but if someone knows how to put that type of summary into a PDF file that would be great.

Carry On.
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Old 06-01-2008, 12:59 PM
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Librarian, all looks good.

Everyone else, this is not an Open Carry thread, or Concealed Carry thread, per se. Those topics often involve more gray area within the law. The definitions of loaded are very clear under the law. Thus, this separate thread.
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Old 06-01-2008, 1:02 PM
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Quote:
Originally Posted by E Pluribus Unum View Post
It is kind of funny to hear you talk about this. I remember before your "ordeal" your posts sounded like theirs. Dogmatic rantings about how the government has no right to infringe on rights and "if it were you" you would fight it until the end... bla bla...

It is interesting how life experience has changed your tone a bit. The song is the same, but it is down a few octaves...
I still feel the same way, I just don't want people heading down the road I went down without both eyes wide open.
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Old 06-01-2008, 1:50 PM
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Quote:
Originally Posted by Librarian View Post
Feedback, please!

Much appreciated!

There are some fantastic people on this site that help others out. A side effect of that helpfulness - it sorta makes some threads hard to follow.

Maybe a Locked sticky with the good info summarized? and a link to a discussion thread? Works on other forums fairly well, it has the added helpful side effect of people reading the first locked sticky more often than the first post in a open sticky - so people read changes to the info.

Just an idea.

.
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Old 06-01-2008, 2:26 PM
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Quote:
Originally Posted by Blackwater OPS View Post
I still feel the same way, I just don't want people heading down the road I went down without both eyes wide open.
I know bud; we all become wiser with age and experience. You probably aged 10 years in both during your situation.

I was just around before when you would argue with me about it. After I went through my ordeal with the CHP, we argued about the concept of behaving "cautiously". Now you are singing a tune similar to what I was a few years ago when you were basically telling me what you would do in the situation.
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Quote:
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12050[CCW] licenses will be shall issue soon.

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Ignorance of the law is no excuse……..except for police.
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Old 06-03-2008, 9:09 AM
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This will stay open for comments for another week or so - after that we will lock it and trim off the excess.
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Old 06-03-2008, 2:50 PM
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Quote:
Originally Posted by ViPER395 View Post
Someone needs to make this into a pretty printable PDF like the OC flyer.
It is now available as a word file at: http://opencarry.mywowbb.com/forum12/11495.html
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Old 06-03-2008, 3:24 PM
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Quote:
Originally Posted by Decoligny View Post
It is now available as a word file at: http://opencarry.mywowbb.com/forum12/11495.html
And if you have a modern-ish MS Office, the print function ought to have a 'save as PDF' option.

Nothing copyrightable there - all court case and snips of penal code plus a little informed speculation. Feel free...
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Old 06-03-2008, 7:23 PM
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Librarian,

Here's one for the overflow page.

Quote:
12071.4. (a) This section shall be known, and may be cited as, the
Gun Show Enforcement and Security Act of 2000.
(g) No person at a gun show or event, other than security
personnel or sworn peace officers, shall possess at the same time
both a firearm and ammunition that is designed to be fired in the
firearm.
Vendors having those items at the show for sale or
exhibition are exempt from this prohibition...

(k) All persons possessing firearms at the gun show or event shall
have in his or her immediate possession, government-issued photo
identification, and display it upon request, to any security officer,
or any peace officer.
(l) Unless otherwise specified, a first violation of this section
is an infraction. Any second or subsequent violation is a
misdemeanor. Any person who commits an act which he or she knows to
be a violation of this section is guilty of a misdemeanor for a first
offense.
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Old 06-03-2008, 7:50 PM
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Quote:
Originally Posted by Liberty1 View Post
Librarian,

Here's one for the overflow page.
Nice catch! Added, thank you.
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Old 06-03-2008, 9:40 PM
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Pamphlet has also been updated to add Liberty1's information.
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Last edited by Decoligny; 06-03-2008 at 9:43 PM..
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Old 06-04-2008, 12:57 PM
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Librarian,

Thank you for the post. After reading the PC a few times over the years, I've wondered how having a detached loaded magazine wasn't loaded (as stated on CG.net many times). Very nice to see it explained and the case law cited so clearly.

Decoligny,

Thanks for the link to your "formated" document. I'm still running MS 2003, so it doesn't all fit on two pages, but I'm pretty sure I can tweak it and make it look good for printing on my side.

Another good item to print out and keep in my range bag.

Dwarf
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Old 06-04-2008, 1:19 PM
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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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Old 06-04-2008, 2:34 PM
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That ought to be entertaining.

I'd guess you'll get maybe 20 responses, 18 of which will be variations on 'we cannot be your lawyer'.

But
Quote:
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?
is really the key question.

I think it's shameful that DOJ will not issue an advisory opinion to the DAs providing consistent guidance on state law. Claiming that state law must be interpreted separately in each county is contrary to the concept of having a state.
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Unless there is some way to amend a bill so you would support it,
the details do not matter until the Governor signs or allows the bill to become law.

Ask CA law questions in the How CA Laws Apply to/Affect Me Forum
- most questions that start 'Is it legal ...' go there.

Not a lawyer, just Some Guy On The Interwebs.


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