Condition 3 open carry?

[Hanniballs]

I haven't open carried in a while and I'm planning a trip tomorrow. I was reviewing the PC and a couple of gears started turning. Please keep in mind that this will most likely result in your detention and I'm not yet willing to attempt it at the moment. I would also like to review the full case ruling (People vs. Clark). Please see my thoughts below.

PC12031(g) - Loaded firearm is defined as when there is an unexpended cartridge or shell in, or attached in any manny to, the firearm, including, but not limited to, in the firing chamber, magazine, or clip thereof attached to the firearm.

noted in People vs. Clark - "for a firearm to be loaded it must have ammunition "placed into a position from which it can be fired."

Open carry in condition 3 is considered loaded in regards to PC12031(g). Then there is case law stating that a firearm is not loaded unless the ammunition is placed into a position from which it can be fired. Last I checked if a round isn't chambered it's not in a position to be fired.

So.. What are your thoughts on this line of thinking? I've just thrown this together fairy quickly and would have to review the complete ruling and get legal counsel before attempting it. I just thought I'd throw it out there to see what you all have to say.

[CSDGuy]

Ammunition in a magazine that's attached to the firearm is in a position from which it can be fired. We're not talking F&G rules... that's more like what you're describing. Loading Shotgun shells into the magazine of a shotgun but leaving the chamber empty constitutes "loaded" whereas putting shotgun shells on a shell carrier that's attached to the body of that shotgun doesn't make it "loaded".

That's basically People v. Clark.

IOW: Carrying in Condition 3 would be considered carrying a loaded weapon. Rack the slide and you're ready to go.

[CitaDeL]

Condition Three legal OC?

I concur on only the issue of the case law cited.

I had the same notions myself, however you have to keep this in the context of the police encounters we have seen in the past year and the three memos that have been issued.

Officers are making the mistake of condsidering possession of a weapon and ammunition by the same person as a loaded firearm. And the memos are relying exclusively on the text of 12031.

We also know that case law is not law itself- and a ruling would be based on a reading of 12031, and filtered through 'Clark'...

So for now, loaded open carry is limited to unicorporated territory, in places where discharge is not prohibited. Unless you are willing to fall on your sword as a 'test case'.

[FreedomIsNotFree]

I believe this is a contradiction found within the Clark decision. On one hand its said that a firearm is not loaded unless there is a round in a position to be fired....ie, actually in the chamber.

I'm too lazy to look it up now, but I believe within the same decision, they use the example of a loaded magazine in the well of the gun as loaded, without making the distinction of a round placed specifically in the chamber.

[Librarian]

I believe this is a contradiction found within the Clark decision. On one hand its said that a firearm is not loaded unless there is a round in a position to be fired....ie, actually in the chamber.

I'm too lazy to look it up now, but I believe within the same decision, they use the example of a loaded magazine in the well of the gun as loaded, without making the distinction of a round placed specifically in the chamber.

The distinction from Clark appears to be here:

The shotgun here is a single-shot shotgun. When the police seized the shotgun, it did not
have a shell in the firing chamber. There were, however, three shells located in a covered
compartment at the rear of the shotgun's stock. It is not possible to fire a shell from that
location; a shell would have to be removed from the compartment and placed by hand in
the chamber before it could be fired. A sheriff's deputy testified the shells were located in
a "storage area."

and

The Legislature in Penal Code section 12031, subdivision (g), provided some examples
of how a shell would be "attached" to a firearm so that the firearm is loaded, i.e., in the
firing chamber, magazine or clip; situations in which the firearm would be "loaded" in the
usual meaning of the word, i.e., the shell is placed in a position from which it can be fired.

As the court was not intending to cover all of the detail of the process of loading a firearm, I think that's all we're going to get - but as I read that, the decision agrees with 12031 that ammunition in a magazine in a gun makes the gun 'loaded'.

[thatrogue]

I believe Librarian's interpratation on clark is very accurate... Can some one help me understand how Nordyke will effect this... and other related issues like ccw if at all..... it seems that alot of us on Calguns are very excited for the ruling and for good reason Im just looking for a connection.

[FreedomIsNotFree]

The distinction from Clark appears to be here: As the court was not intending to cover all of the detail of the process of loading a firearm, I think that's all we're going to get - but as I read that, the decision agrees with 12031 that ammunition in a magazine in a gun makes the gun 'loaded'.

Thanks Librarian...I was too lazy to pull it up.

[Librarian]

I believe Librarian's interpratation on clark is very accurate... Can some one help me understand how Nordyke will effect this... and other related issues like ccw if at all..... it seems that alot of us on Calguns are very excited for the ruling and for good reason Im just looking for a connection.

Speaking in generalities...

(A) Heller (at 64) says the Second Amendment applies to self-defense

In sum, we hold that the District's ban on handgun possession in the home violates the Second Amendment, as does its prohibition against rendering any lawful firearm in the home operable for the purpose of immediate self-defense.

(B) The Second Amendment, today, is a restraint on action only against the Federal government.

(C) Nordyke may get the Second Amendment applied against the states, and by extension, against inferior governmental bodies such as counties, cities and districts. (That's not being skeptical, that's not counting chickens...)

(D) A handgun without ammunition is not "operable for the purpose of immediate self-defense". Heller implies that is a bad thing.

(E) A prohibition on carrying a firearm in public means a gun is not available "for the purpose of immediate self-defense". By extension of Heller, that may be ruled a bad thing.

Putting all of these textual elements together, we find that they guarantee the individual right to possess and carry weapons in case of confrontation.

Heller, at 19.

Heller (at 54, 55) does allow restrictions on carry in public.

(F) Heller explicitly covers "in the home"; we need to establish a broader application of that.

(G) If we get C (incorporation) and F (out of the home), then because of D (prohibition of loaded is bad) and E (prohibition of carry is bad) we may get loaded open carry.

(H) Because G (open carry) tends to frighten a lot of the public, we may get more liberal concealed carry.

[Steve O]

So is a loaded mag not in the gun considered a loaded gun?
If it is not in the mag well then the gun is not in a position to be fired.

[Ironchef]

So is a loaded mag not in the gun considered a loaded gun?
If it is not in the mag well then the gun is not in a position to be fired.

A loaded magazine NOT in the gun is considered a loaded gun ONLY if you're a gang member if I'm not mistaken. Otherwise, for normal people not affiliated with gangs, a loaded magazine in a magazine pouch on your belt, next to your unloaded and holstered handgun is perfectly legal as confirmed by police memos circulated by Sacramento.

[DRM6000]

correct. it's a gang abatement law. one guy would hold the gun and the other would hold the mag so as to not get busted for carrying a loaded firearm.

A loaded magazine NOT in the gun is considered a loaded gun ONLY if you're a gang member if I'm not mistaken. Otherwise, for normal people not affiliated with gangs, a loaded magazine in a magazine pouch on your belt, next to your unloaded and holstered handgun is perfectly legal as confirmed by police memos circulated by Sacramento.

[Librarian]

So is a loaded mag not in the gun considered a loaded gun?
If it is not in the mag well then the gun is not in a position to be fired.

2 correct answers already - see also

http://www.calguns.net/calgunforum/showthread.php?t=103660

[Decoligny]

A loaded magazine NOT in the gun is considered a loaded gun ONLY if you're a gang member if I'm not mistaken. Otherwise, for normal people not affiliated with gangs, a loaded magazine in a magazine pouch on your belt, next to your unloaded and holstered handgun is perfectly legal as confirmed by police memos circulated by Sacramento.

Or by the CA PC 171e definition, if you are a law abiding citizen and have a gun and the ammo for that gun in the immediate possession of the same person, on the capitol grounds, or in the Governor's or legislature's residences.

See my "Is It Loaded" pamphlet below:

[Bizob]

Shamwow, Hi Hanniballs



Lots of good info on OC guys

[JDay]

Speaking in generalities...

(H) Because G (open carry) tends to frighten a lot of the public, we may get more liberal concealed carry.

It would be nice if we got $10 for 4 years CCW like in NH. Yes I know, wishful thinking.