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Thread: Is Carrying a Loaded Handgun in a Backpack in a City a Crime in California?

  1. #1
    Regular Member California Right To Carry's Avatar
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    Is Carrying a Loaded Handgun in a Backpack in a City a Crime in California?

    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it remains binding forever unless it is overruled by a subsequent court or unless the decision is subsequently unpublished in which case the decision is binding only upon the parties in the case.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?
    Last edited by Grapeshot; 05-15-2016 at 08:08 PM. Reason: delete exclamation mark
    Concealed carry is of no use to me, I don't carry a purse.

    Charles Nichols – President of California Right To Carry
    http://CaliforniaRightToCarry.org

  2. #2
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    Quote Originally Posted by California Right To Carry View Post
    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?
    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.
    Last edited by Grapeshot; 05-08-2016 at 10:09 AM. Reason: rule #19 in quote

  3. #3
    Regular Member California Right To Carry's Avatar
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    The decision in People v. Wade will be issued on May 9th at 10:00 am.

    Update by Charles Nichols, President of California Right To Carry – May 6, 2015 – The opinion will be filed on Monday, May 9, 2016 at 10:00 a.m. Although the California Supreme Court is required to issue a decision within 90 days after taking the case under submission for a decision, I did not expect the decision to come quite this soon. What the Court has to say in this decision could have a major impact on my California Open Carry case as well as the concealed carry cases currently pending before the 9th Circuit Court of Appeals. Most notably, the Peruta v. San Diego/Richards v. Prieto cases which were heard before an en banc panel of 11 judges last June. The question before the court is what does it mean for a person to be carrying a loaded firearm “on his person”? In this particular case the defendant was carrying a loaded handgun in a backpack. The court of appeals rejected a prior decision which held that “on/upon” meant beneath or within the clothing a person is wearing as applied to knives. If the California Supreme Court upholds the appellate court ruling in this case (Wade) then it will have no impact on my case or any of the other concealed carry cases. If the California Supreme Court follows the reasoning in the prior case (Pellecer) then those who seek to carry handguns loaded and concealed will be able to do so without a permit so long as they do not carry them within or beneath the clothing they are wearing.

    Yes, there are many places that they will still be unable to carry a loaded, concealed handgun (such as within the prohibited areas pursuant to California’s Gun-Free School Zone Act of 1995) but none of the Plaintiffs in either the Peruta or Richards cases sought to carry a loaded, concealed handgun in any particular place. Nor did they challenge the authority of the Sheriff to restrict when and where their permits would be valid. If the California Supreme Court follows the reasoning in the Pellecer decision then the Peruta/Richards concealed carry cases become moot. The en banc court does not have to issue a decision. By the same token, the defendants in my California Open Carry case can hardly put forth even a “rational basis” defense of my challenge to the statute which seeks to openly carry loaded firearms for the purpose of self-defense if people are allowed to run around with loaded concealed handguns, which the California courts have always held to be a danger to public safety. A danger not present in the carrying of firearms openly.

    I have a dedicated page for this case at my website here -> http://blog.californiarighttocarry.org/?page_id=2712
    Last edited by Grapeshot; 05-07-2016 at 01:00 PM. Reason: rule #19
    Concealed carry is of no use to me, I don't carry a purse.

    Charles Nichols – President of California Right To Carry
    http://CaliforniaRightToCarry.org

  4. #4
    Regular Member California Right To Carry's Avatar
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    The California Supreme Court says "Yes, it is a crime!"

    Update by Charles Nichols, President of California Right To Carry – May 9, 2016 – The California Supreme Court asked itself – Is a person wearing a backpack that contains a loaded revolver carrying a loaded firearm on the person? The California Supreme Court said in a published opinion “We conclude the answer is yes.” Therefore, the decision in this case does not affect my California Open Carry lawsuit or any of the concealed carry lawsuits in the 9th Circuit. Here is a link to the decision.

    The prior decision in People v. Pellecer is disapproved as to its reasoning, apparently because the carrying of a firearm has no usefulness:

    "But we need not consider the significance, if any, of the rejected bill, because whatever significance it might have is limited to knives. Second, the court stated that not “outlaw[ing] carrying a dirk or dagger in a backpack is understandable, given the utility of a knife in such lawful pursuits as fishing, hunting, camping, picknicking and the like.” (Pellecer, at p. 517.) This rationale also does not apply to firearms... For these reasons, we disapprove People v. Pellecer, supra, 215 Cal.App.4th 508, to the extent its analysis is inconsistent with this opinion, although not necessarily its holding." (emphasis added) Slip Op at pg 11.

    This case was supposed to be limited to the meaning of the phrase "on/upon a person." As such, it should not have mattered what a person carries as the "what" does not determine the "where."
    All seven members of the California Supreme Court have demonstrated that they haven't a clue as to how the canons of statutory construction work.
    I guess they never read Scalia's book.

    A link to the Pellecer decision (as well as this decision) can be found at my website -> http://blog.californiarighttocarry.org/?page_id=2712
    Last edited by California Right To Carry; 05-09-2016 at 02:00 PM.
    Concealed carry is of no use to me, I don't carry a purse.

    Charles Nichols – President of California Right To Carry
    http://CaliforniaRightToCarry.org

  5. #5
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    This decision seems consistent with other jurisdictions...

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