12031(e) hijinks and question.

[dantodd]

Let's just say that I am transporting 40 gun rags in my car and 39 of them have an airsoft pistol or similarly weighted/shaped item and only one has a firearm.

Now, let's say that I am detained for a traffic violation and the officer sees a gun rag and asks if I have any firearms in the car. I give an honest answer and he demands to do an (e) check.

I know that 12031(e) prevents me from refusing the (e) check but does it compel me to identify WHICH bag has an actual gun in it? Does it give the officer the right to go though every bag and unlock/inspect each bag?

Are each of the bags searched getting to the magic bag a separate 42 U.S.C. 1983 violation?

[Gray Peterson]

Let's just say that I am transporting 40 gun rags in my car and 39 of them have an airsoft pistol or similarly weighted/shaped item and only one has a firearm.

Now, let's say that I am detained for a traffic violation and the officer sees a gun rag and asks if I have any firearms in the car. I give an honest answer and he demands to do an (e) check.

I know that 12031(e) prevents me from refusing the (e) check but does it compel me to identify WHICH bag has an actual gun in it? Does it give the officer the right to go though every bag and unlock/inspect each bag?

Are each of the bags searched getting to the magic bag a separate 42 U.S.C. 1983 violation?

No, and the underlined above is the problem. Don't answer the question, or use a Jason Davis card.

[The Director]

What kind of retarded scenario is this.....just curious.

[dantodd]

Obviously the correct answer is to not say you have a gun but the more general issue is if not telling the officer where the gun is would be a violation of 12031(e) and if that is not a violation and he searches places where the gun isn't does he open himself up for a lawsuit by searching without probable cause of any crime.

12031(e) only permits him to check the firearm for loaded status it does not permit him to search for the gun. If the gun is not in plain site can the officer search any place the firearm MIGHT be to find it?

[taperxz]

Dan, it would seem to me that in your EXACT situation since you told the LEO you had a firearm, it would be incumbent upon you to find the weapon and make it available to the officer for inspection. He may very well have to sit and wait while you go through your inventory to get that one firearm. YES/NO?? This is what would seem logical anyway.

[dantodd]

Dan, it would seem to me that in your EXACT situation since you told the LEO you had a firearm, it would be incumbent upon you to find the weapon and make it available to the officer for inspection. He may very well have to sit and wait while you go through your inventory to get that one firearm. YES/NO?? This is what would seem logical anyway.

I don't know. The statute says:

12031(e) In order to determine whether or not a firearm is loaded for the purpose of enforcing this section, peace officers are authorized to examine any firearm carried by anyone on his or her person or in a vehicle while in any public place or on any public street in an incorporated city or prohibited area of an unincorporated territory. Refusal to allow a peace officer to inspect a firearm pursuant to this section constitutes probable cause for arrest for violation of this section.

So, as long as you don't refuse you aren't violating the law. There doesn't seem to be a requirement that you assist the officer nor does it say the officer may search beyond checking to see if the firearm is loaded.

While I know this is no more than a mental exercise I am interested to know just how far "refusal" goes. Do you have to instruct an officer in how to remove a firearm from a retention holster? Can the officer search the entire contents of a moving truck if you say that you have a weapon the vehicle?

[taperxz]

I think i will stand with what i said earlier that in your exact situation. The officer would ask you to produce the firearm. Lets just say if the opposite of you situation were to be that you had only one gun rag and one gun in the car, the LEO would ask you to take it out for inspection. Remember, they have no idea what is in that gun rug. You did not have to tell the LEO what was in the rug or rugs. You do not have to give him permission to search so i would still think you would have to produce the weapon that you volunteered information on. Just my guessing, idea.

[taperxz]

Forget that you have 40 gun rugs with air soft in them and one with a firearm. Lets say you have 40 one lb. bags of m&m's and one gun rag that looks like an m&M package ...... Whats the difference? The LEO would instruct you to produce the firearm for inspection. I would just produce it to prevent him from eating all the M&M's wouldn't you.

[N6ATF]

40 gun rags? American Rifleman?

[hoffmang]

There are about three answers to this question and they fall in the categories of state, federal, and 14A.

State Criminal: The cop has the statutory ability to inspect all of your gun cases and whatever he sees in that process is fair game to prosecute you.

Federal Criminal: Absent probable cause or reasonable suspicion that you are armed and dangerous (Terry), it is a 4A violation for him to search.

14A: The federal criminal ruling has never been used to narrow 12031(e) in state court (yet.)

I'm going to dig up the 9th Circuit case on the "gun case isn't probable cause" that I was talking about Federally.

-Gene

[dantodd]

I would just produce it to prevent him from eating all the M&M's wouldn't you.

Why produce the gun? That is not a requirement of 12031(e).

I also don't see anything (forgetting for the moment that 12031(e) is facially unconstitutional) in 12031(e) that says you have to assist, just that you cannot refuse. I also fail to see any exemption in 12031(e) for 4A violations beyond checking if the gun is loaded.

[dantodd]

There are about three answers to this question and they fall in the categories of state, federal, and 14A.

State Criminal: The cop has the statutory ability to inspect all of your gun cases and whatever he sees in that process is fair game to prosecute you.

This is sort of what I am getting at. Is it implied within the statute that the officer can perform any search he desires to find the firearm? I only see that he can inspect the firearm itself. If he can conduct a search for the firearm what prevents him from searching your entire car simply ignoring the gun rug until he has exhausted all other areas within the car?

As for federal and constitutional issues, I don't really see 12031(e) standing up to constitutional review so this is all likely irrelevant in the long run.

[taperxz]

Ok so there is a catch 22 here. Either let him go through the gun rags and find the firearm or produce the firearm for him to prevent him from going through all the gun rags. I would still have to think that because YOU told him you had a firearm YOU would have to make the firearm available for an e check. (not saying i am right!!) Just playin the brainstorm as you suggested.

[taperxz]

Of course it would always be better to remain silent on his inquiry and let him hang himself for an illegal search.

[dantodd]

Of course it would always be better to remain silent on his inquiry and let him hang himself for an illegal search.

I absolutely agree.