what difference does it make. It still can't be seen. They are splitting hairs. Arbitrary changes in meanings of words are used to limit RKBA and criminalize you. This happens all the time in the legal world.My website has literally received more than 50,000 hits on my Peruta v. San Diego page but less than a 1,000 on my People v. Wade page even though a decision in the Wade case could have a greater and earlier impact on carrying a loaded gun in California.
If you are unfamiliar with the Peruta v. San Diego/Richards v. Prieto concealed carry cases then click on their links above. There is also a link about to the Wade case. For the rest of you, here is the nickel tour:
1. The case is Fully Briefed.
2. Oral Arguments Scheduled for April 7, 2016, at 1:30 p.m., in Los Angeles California.
3. The California Supreme Court Will Issue Its Decision Within 90 Days after Oral Arguments.
This is an important case for a number of reasons in addition to this case providing a current example of some of the procedural differences between the California courts and the Federal courts.
In the 9th Circuit Court of Appeals, a three judge panel decision is binding throughout the 9th Circuit Court of Appeals unless it is overruled by a 9th Circuit en banc court or the US Supreme Court. The original three judge panel decision, known as a “prior opinion” is binding on all subsequent three judge panels unless overruled by a 9th Circuit en banc court or the US Supreme Court.
In California, appellate courts are free to disregard prior panel decisions. The judges in People v. Wade did just that. They explicitly refused to follow the logic of the prior decision in People v. Pellecer. Theoretically, trial courts within an administrative district of a California appellate court are required to follow the appellate decisions published in their district but when there is a split, as we have now with Wade and Pellecer, judges outside the appellate district are free to pick and choose which precedent they will follow. I say “theoretically” because unless you are very young or have not lived very much then you already know that trial court judges do what they damn well please.
Once a decision is published it remains binding forever unless it is overruled by a subsequent court or unless the decision is subsequently unpublished in which case the decision is binding only upon the parties in the case. This is true of both the Federal and State courts.
People v. Wade – Case No.: S224599 is a case which disregarded the decision in People v. Pellecer, 215 Cal. App. 4th 508 – Cal: Court of Appeal, 2nd Appellate Dist., 1st Div. 2013. Pellecer had held that for a weapon to be concealed under California’s statutory definition of “concealed” the weapon must be concealed beneath or within the clothing one is wearing and a weapon carried in a backpack (or other container such as a suitcase) is not concealed. The language used in the statute at issue (carrying knives) is the same language used in the statute prohibiting the carrying of concealed handguns (regardless of whether or not the handgun is loaded) and is used in the statute prohibiting the carrying of loaded firearms regardless of whether or not the firearm is concealable or concealed.
Attorney General Harris could have, but did not, appeal the Pellecer decision. The attorney for Wade has appealed to the California Supreme Court and his petition to hear his appeal was granted. AG Harris must now take a position on the Wade case which is probably one of the last things she wants to do given a dozen or so concealed carry cases either pending before the 9th Circuit Court of Appeals. If the California Supreme Court concludes that a handgun is not concealed unless it is concealed beneath or within the clothing a person is wearing then its decision, if it comes before the Peruta/Richards decision, would likely render those two cases moot.
Here is a link to the Wade California Supreme court docket.
If the Pellecer decision is held to be controlling and the Wade decision reversed by the California Supreme Court then it will likely become legal to carry loaded handguns in a variety of different containers so long as they are not concealed within or beneath the clothing one is wearing and to do so without a government issued permission slip.
Note that under current California law it is illegal to carry even an unloaded handgun concealed on one’s person or in a container without a permit with few exceptions.
It is important to note that the California Supreme Court will not be deciding whether or not the law is unconstitutional under the Second Amendment or the First Amendment of the California Constitution. The question before the California Supreme Court is one of statutory construction. Specifically, what is the meaning of “on his person”? Is a loaded handgun concealed within a back pack and carried within a public place carried on your person in violation of California Penal Code section 25850?