Question about transporting ammo in car

[hoffmang]

The law only applies to loaded firearms. There is no place in the PC or the H&SC that prohibits loaded magazines unless you're a gang member. The fact that gang members are prohibited loaded magazines confirms that the rest of us are not so prohibited.

-Gene

[Outlaw Josey Wales]

For those that prefer revolvers I suppose a speed loader could be the equivalent to a magazine? Or since a speed loader is not part of a revovler, needed to make the revolver function the way a magazine does an autoloading pistol, would it be considered more like an ammo cuff that just holds ammo until needed?

[XDshooter]

The law only applies to loaded firearms. There is no place in the PC or the H&SC that prohibits loaded magazines unless you're a gang member. The fact that gang members are prohibited loaded magazines confirms that the rest of us are not so prohibited.

-Gene

That law says what IS considered a loaded firearm.

Gang members with ammo (doesn't matter if it's in a mag or not) is a different law.


Gene, can you please cite exactly where in Clark they conclude that loaded mags are not considered loaded firearms.

I can see that they say "not in a position to be fired" may allow loaded mags.

[Librarian]

Gene, can you please cite exactly where in Clark they conclude that loaded mags are not considered loaded firearms.

It isn't Clark, though it's possible it's in there, too. Back in post 40, you (XDShooter) posted the definition of a firearm.

Title 18 Section 921(a)
(3) The term ``firearm'' means (A) any weapon (including a starter
gun) which will or is designed to or may readily be converted to expel a
projectile by the action of an explosive; (B) the frame or receiver of
any such weapon; (C) any firearm muffler or firearm silencer; or (D) any
destructive device. Such term does not include an antique firearm.

A removable box magazine doesn't qualify. It's not a frame, it is not "designed to or may readily be converted to expel a projectile by the action of an explosive". Therefore, since a magazine cannot be a firearm, a loaded magazine cannot itself be a loaded firearm.

[hoffmang]

Librarian is correct, but I'll post a full explanation shortly.

-Gene

[XDshooter]

Librarian is correct, but I'll post a full explanation shortly.

-Gene

Nice explanation Librarian. Good thinking.

Okay, so regardless of Clark, the ambiguity of the law simply means that the loaded magazine would have to be in the magwell, but does it have to be just physically touching, or slightly in, or locked into place, etc.


What is either of your thoughts on that?

[hoffmang]

Let's walk through all the issues (which are all well explained in Clark, but people may not understand how rules of legal language construction work.)

1. There are two definitions of a loaded firearm that were passed into law in the same legislation in the 1960's. This was the reaction to the Black Panther march on Sacramento. Compare PC 12031's definition to PC 171e which controls carry loaded in state meetings and certain state buildings.

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.

2. The main issue that's confusing is that people are inferring constructive possession of a loaded firearm. Constructive possession is a concept that courts will not infer unless a statue specifically creates it.

3. Because the legislature knew how to create constructive possession of a loaded firearm and did implement that sort of definition in one place, the lack of the same definition in another place means that it means something different. If a DA wants to try to say that 12031 has the same meaning as 171e he's not going to succeed with that construction.

4. As I said above, don't confuse a loaded firearm with a loaded magazine. A firearm can certainly be loaded if a detachable magazine has rounds in it and is attached to the firearm. How is a magazine "loaded?" Further, you can see that the intent of the legislature isn't to make magazines with rounds in your pocket part of the firearm by considering the situation of having an AR on your back and 2 full magazines in your pockets. The word magazine in 12031 doesn't have an optional plural.

5. Finally, lets look at the grammar. Here is what it says:

(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.

What one would be proposing in saying that having a full magazine in your possession for an otherwise unloaded gun, you have to interpret the sentence as "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 [attached or not attached to the firearm and in the immediate possession of the same person], or clip thereof attached to the firearm." However, that's not what the sentence reads. It really reads, "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 [thereof attached to the firearm], or clip thereof attached to the firearm." Your construction requires a whole lot of words that are not in the law to be read in, where the construction I'm explaining simply requires taking note that "attached to the firearm" applies to both the magazine or clip (not magazines) that belongs to that firearm and is attached to that firearm.

6. This always lead to the question of the SU-16 and full magazines in the stock. Clark makes it pretty clear that the magazine or bullets need to be in the firing position to make it a loaded firearm.

7. The rule of lenity means that ambiguity is always construed in California to benefit the accused. The practical implication means that unless you are carrying a weapon and rounds for the weapon on certain state grounds, in process of committing a felony, or are a known street gang member, you will not be convicted of having a loaded weapon if you only have full magazines that are not in the magazine well of a firearm with detachable magazines.

-Gene

[XDshooter]

See, I read "thereof attached to the firearm" as

"concerning attached to the firearm" as thereof means "of or concerning this, that, or it"

This is saying that when a cartridge is in the magazine or clip it is considered attached to the magazine, thus loaded.

Is that not what is being said here?


Also, the laws which state that the ammunition and firearm are on the same person simply mean just the ammo, regardless of where or what it is in.

PC 12031 defines the where and what, which makes them different.

1 - Gang member with firearm and ammo regardless of where or what it is in - BUSTED
2 - Someone not engaged in illegal activity with ammo, but cartridges in the firing chamber, magazine, or clip - BUSTED

[hoffmang]

XD,

You keep trying to load magazines or clips. Loaded magazines or clips are not prohibited. Ammunition in the singular magazine (notice no plural) where the gun in question has either a non detachable magazine or has the detachable magazine actually attached is loaded. You could stretch the definition really far (and only maybe this would fly with a judge) to claim that SU-16 magazines in the stock are attached thereto, but Clark's core holding is that attached thereto has to be in firing position.

Seriously man, you seem to be grasping at straws. That you can be confused means at worst this argument falls into my #7 above which means its not prohibited conduct.

-Gene

[XDshooter]

Thanks for the help Gene.

It's just laws and the court try to push some serious crap sometimes. I always want to know EXACTLY what the law is. I don't ever like to not know what the law says regarding something.

[MrSigmaDOT40]

XD,

hoffmang,

Would you liek to take a swing at the notion tha it is LEGAL to Open Carry (In a holster) in a vehicle? I think somebody possible in this thread and/or in the forums somewhere said that it was legal becasue the pistol is still in the open air holster. Anything to back that up? That would really help out because loacking and unlocking, casing and uncasing everytime you have to get in or out of your car sounds like a HUGE pain.

[hoffmang]

hoffmang,

Would you liek to take a swing at the notion tha it is LEGAL to Open Carry (In a holster) in a vehicle? I think somebody possible in this thread and/or in the forums somewhere said that it was legal becasue the pistol is still in the open air holster. Anything to back that up? That would really help out because loacking and unlocking, casing and uncasing everytime you have to get in or out of your car sounds like a HUGE pain.

The penal code does have this:

12025. (a) A person is guilty of carrying a concealed firearm when he or she does any of the following:
........
........
(f) Firearms carried openly in belt holsters are not concealed within the meaning of this section.

I think that would make it hard for a prosecution to win. However, I do think its arguable enough that the case would go to trial.

-Gene

[MrSigmaDOT40]

The penal code does have this:


I think that would make it hard for a prosecution to win. However, I do think its arguable enough that the case would go to trial.

-Gene

Yea that's a hard nut to crack right there. i'll see about that after the local LEO's get use to me OC at all first. Thanks for the info!

[rayra]

CHP tends to know the law a bit better than the local PD's, unfortunately.

My point isn't that it's illegal to transport the ammo in clips/mags, but that a lot of LEOs take a differing view of the matter. And even if the phone clerk knows the law, you don't know for sure that the beat officers do.

Like I say, as wrong as it is, I've been told by LEOs that loaded mag = loaded weapon. Do they need to be corrected? Absolutely. But I'm not convinced that the cost/benefit analysis is worth it to save a few minutes' loading time.

That's what carrying a couple printouts of the applicable regs / penal code sections is good for. Educate the officer, demand his supervisor, follow up with a demand for training / counseling of their watch.
It's past time to make law-enforcement officers at least as cognizant of the law as we have to be.
I've encouraged an acquaintance with an OLL to learn teh regs inside and out and carry multiple copies of them with him, IN his rifle case if nowhere else, just to be sure to cover his *** when facing an ignorant public and ignorant law-enforcement personnel.

[rayra]

Cops don't have easy access to case law on the side of the road. DA's are a different animal and beyond the inconvenience, a DA is all that really matters.

-Gene

lol. Spoken like a lawyer. I'd prefer not to have a situation get to that point, even if it is certainly winnable. They'll have 'easy access' when I hand them the reg. on the side of the road.