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Considering OC (unloaded) in CA

cato

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CA_Libertarian wrote:
cato wrote:
I also recommend carrying a tape recorder and if possible have a friend or two along as friendly witnesses.
Gotta be careful with this one. CA PC Section 632(c) relies on what the jury thinks should be reasonably expected to be overheard or recorded. Probably safe out on the sidewalk, but may be a gray area in some other "public" places (e.g. a bank).

Code:
632. (a) Every person who, intentionally and without the consent of all parties to a confidential communication, by means of any electronic amplifying or recording device, eavesdrops upon or records the confidential communication, whether the communication is carried on among the parties in the presence of one another or by means of a telegraph, telephone, or other device, except a radio, shall be punished by a fine not exceeding two thousand five hundred dollars ($2,500), or imprisonment in the county jail not exceeding one year, or in the state prison, or by both that fine and imprisonment. If the person has previously been convicted of a violation of this section or Section 631, 632.5, 632.6, 632.7, or 636, the person shall be punished by a fine not exceeding ten thousand dollars ($10,000), by imprisonment in the county jail not exceeding one year, or in the state prison, or by both that fine and imprisonment.
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(c) The term "confidential communication" includes any communication carried on in circumstances as may reasonably indicate that any party to the communication desires it to be confined to the parties thereto, but excludes a communication made in a public gathering or in any legislative, judicial, executive or administrative proceeding open to the public, or in any other circumstance in which the parties to the communication may reasonably expect that the communication may be overheard or recorded.

Police officers have no expectation of privacy when on duty and a citizen has no expectation of privacy when talking to a police officer actingwithin thescope of their duties. I can't site code, but that is what is being taught by CA POST (Peace Officer Standard Training).

Please do tape any encounters with LEO.
 

CA_Libertarian

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cato wrote:
Police officers have no expectation of privacy when on duty and a citizen has no expectation of privacy when talking to a police officer actingwithin thescope of their duties. I can't site code, but that is what is being taught by CA POST (Peace Officer Standard Training).

Please do tape any encounters with LEO.
Yes, since LEOs, almost without exception, will be recording you, the statute exception would be met. Since they're already recording, it's logical fact that they reasonably expect that they're going to be recorded.

My concern would be in businesses or on private property, where a person may expect some reasonable level of privacy. I used the example of a bank, where you probably don't want someone recording as you discuss account numbers and balances with the teller.

I hope I didn't confuse anyone. I just want to warn people they gotta be careful when and where they record.
 

CA_Libertarian

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CA_Libertarian wrote:
Just received verification from the city of Turlock:

Per Lorraine @ the city attorney's office:

"I checked with the Sargeant. Our rules are the same as the state: open and unloaded.
I was on my way out of the office when I posted this, and wanted to elaborate on an interesting conversation:

In my initial call, the following exchange took place:

CA_Libertarian - "I'm interested in finding out if there are any city ordinances prohibiting the carry of firearms."

Lorraine - "You want information on a weapon permit?"

C- "Not really, I just want to know if the city prohibits carrying a firearm."

L- "I know you can't carry one without a permit."

C- (as casually as possible) "Well, I read in Penal Code sections 12025 and 12031 that I can't carry a weapon concealed or loaded... is that what you mean?"

L- (obviously flustered) "Yeah..."

C- "Sorry I wasn't clear, I'm just interested in any local laws about carrying an unloaded firearm. The city website is down (which it was), and I was hoping you could verify this for me."

L- "Let me search our offline copy of the Municipal Code..." (puts me on hold)

L- (now friendly, no longer sounding flustered) "Well, there's none that I could find, but I'll ask one of the Sargeants to give you a call."

She was the one that called me back (not a Sargeant), which disappointed me, as I was going to ask them some questions about their guidelines for deciding to issue CCWs. (I'm interested in one for the purpose of exempting myself from 12031.)


Anyhow, just thought it was interesting how she immediately and confidently stated, "I know you can't carry [a firearm] without a permit," and how flustered she was when I demonstrated some knowledge of the law. Hopefully she appreciates that I put on my happy, carefree voice and didn't grill her for providing misleading information.
 

cato

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CA_Libertarian wrote:
Just received verification from the city of Turlock:

Per Lorraine @ the city attorney's office:

"I checked with the Sargent. Our rules are the same as the state: open and unloaded.
Many cities and PD tape all their phone conversations (non-emergency business line too). Keep note of the date and time of your call for future reference if needed as well as all names.
 

Mike

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CA_Libertarian wrote:
Unicorporated areas:

- Legal to carry a loaded firearm UNLESS the county has a statute prohibiting such.

- May be illegal to carry a loaded weapon on a public road in an unincorporated area.


What is the basis for the 2d bullet? You can OC in a vehicle in unincorp. areas just as you can OC on foot.
 

CA_Libertarian

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Mike wrote:
CA_Libertarian wrote:
Unicorporated areas:

- Legal to carry a loaded firearm UNLESS the county has a statute prohibiting such.

- May be illegal to carry a loaded weapon on a public road in an unincorporated area.


What is the basis for the 2d bullet? You can OC in a vehicle in unincorp. areas just as you can OC on foot.
The source was misinformation from the office of our attorney general. Notice i said "may;" goes to show you how much misinformation I already had found in there. Sorry I failed to go back and clarify this point, as I had intended to.

Here's a link to the pamphlet in question. The statement that required some debunking, on page 31 (36/55 on the PDF file) is:
It is unlawful to carry a loaded firearm on one’s person or in a vehicle while in any public place, on any public street, or in any place where it is unlawful to discharge a firearm.(Penal Code § 12031(a)(1).)
Any public street? Not according to 12031. You are correct that 12031 does not apply to unicorporated areas there is a specific prohibition in that county.
 

CA_Libertarian

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Finally got a reply from Gail Smith the city of Modesto:

[align=left]4-2.03.1 of the municipal code covers dangerous weapons, stating (a) Definition. As used in this section “dangerous weapon” shall mean and include, but is not limited to:
(1) Any knife having a blade three inches or more in length, or any snap-blade or spring-blade knife regardless of the length of the blade;
(2) Any ice pick or similar sharp stabbing tool;
(3) Any straight-edge razor or any razor blade fitted to a handle;
(4) Any cutting, stabbing or bludgeoning weapon or device capable of inflicting grievous bodily harm; or
(5) Any dirk or dagger or bludgeon.
(b) Carrying Dangerous Weapon. It shall be unlawful for any person to carry upon his person or to have in his possession or under his control any dangerous weapon; provided that it shall be a defense to any prosecution for a violation of this section, if, at the time of the alleged violation, the instrument or device alleged to be a dangerous weapon was in good faith carried upon the person of the accused or was in good faith in his possession or control for use in his lawful occupation or employment or for the purpose of lawful recreation; and provided, further, that the provisions of this section shall not apply to the commission of any act which is made a public offense by any law of this State.
(c) Disorderly Conduct. It shall be unlawful for any person who has upon his person or in his possession or control any dangerous weapon to engage in any fight or participate in any rough or disorderly conduct upon any public place or way or upon the premises of another.
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[/align] [align=left] [/align] [align=left]4-1.1114 covers firearms specifically, stating (a) It shall be unlawful for any person to fire or discharge any pistol, gun, rifle, firearm, cannon, anvil loaded with powder, bow, air gun or any other device whereby shot, bullets or other dangerous missiles are discharged or projected, within the City of Modesto. Provided, however, that any person may, in or upon his own premises, shoot dangerous animals where necessary for the protection of life or property. And further provided, that cannon or anvils may be discharged pursuant to the written permission of the Chief of Police.
(b) Provided, however, that nothing herein contained shall prohibit or prevent maintaining, operating and/or carrying on a pistol and/or rifle range where firing devices and cartridges are of a character and caliber approved by the Chief of Police and for which a permit has been issued pursuant to the provisions of this article.
[/align] [align=left] [/align] [align=left]If you need a concealed weapons permit, you would have to apply here at the Police Department. There is a detailed application that must be filled out, a $100 fee, prints and a background check. I have included a copy of our general order showing what conditions must be met in order to qualify for a CCW here in the City of Modesto. The "Good Cause" information is particularly important. And, of course, you have to live within the city limits of Modesto.[/align] [align=left] [/align] [align=left]Feel free to ask for me if you decide to come in to get the application. We are on the 2nd floor in Investigations. [/align]
 

cato

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CA_Libertarian wrote:
Finally got a reply from Gail Smith the city of Modesto:



[align=left]4-2.03.1 of the municipal code covers dangerous weapons, stating (a) Definition. As used in this section “dangerous weapon” shall mean and include, but is not limited to:[/align]

So are unloaded firearms openly carriedcovered? If you were carrying concealed claiming 12026.1a this wouldn't apply as it would be preempted by the states concealed laws.

I bet they have had swords, daggers andunloaded exposed arms carried in parades. And I see no exemption in their law for parades so how could they unfairly apply this to peaceful non-parade open carry?
 

CA_Libertarian

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cato wrote:
CA_Libertarian wrote:
[align=left]4-2.03.1 of the municipal code covers dangerous weapons, stating (a) Definition. As used in this section “dangerous weapon” shall mean and include, but is not limited to:[/align]

So are unloaded firearms openly carriedcovered? If you were carrying concealed claiming 12026.1a this wouldn't apply as it would be preempted by the states concealed laws.

I bet they have had swords, daggers andunloaded exposed arms carried in parades. And I see no exemption in their law for parades so how could they unfairly apply this to peaceful non-parade open carry?

That's what I'm trying to figure out. The way this is written, any object "capable of inflicting grievous bodily harm" cannot be carried.

I responded to the e-mail from Gail.
I pointed out that CA PC 12020 clearly defines 'dangerous weapons,' and asked for clarification if, in the city of Modesto, an unloaded firearm is considered a 'dangerous weapon.' I also asked if this law allows for interpretation by the police and courts.

I'm not sure the response will even matter. Either the section does not prohibit firearm possession, or it leaves the section open to interpretation. If it is open to interpretation, then I believe it would be easy to make a case that the law in unconstitutionally vague, and therefor invalid. As much as I would hate to be a test case...

Connally v. General Const. Co. (269 U.S. 385(1026))
The dividing line between what is lawful and unlawful cannot be left to conjecture.
 

CA_Libertarian

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I happened upon a pamphlet produced by the NRA Feb2007. I was reading through the pamphlet, and noticed there was no mention of CA PC 12031. Someone reading this pamphlet would probably think you can carry loaded anywhere in the state. Aside from this omission, the information was fairly good and complete.

One claim, at the bottom of page 4, caught my attention:

The state legislature also has expressed its intention to occupy the whole field of the regulation and licensing of firearms, thus precluding cities and other localities from enacting firearms laws.
As of right now, the most difficult thing is knowing if cities can/do have laws banning OC. For example, I plan on driving from Central CA to Mesa, AZ. On the trip, I'll be passing through at least 20 incorperated areas. Am I required to know and abide by each city's special rules as I drive through on the freeway? How about if I stop for gas?

Logically, it seems to me that Due Process is not served if a reasonable person can't easily know all these laws, so I'm thinking state law would HAVE to pre-empt.

I'll definitely be e-mailing to try to get some legal citation of this claim.
 

CA_Libertarian

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Finally got a reply from Gail Smith at Modesto Police Department:

...[The city attorney's office] stated that they were not able to assist me and that you should consult with private counsel as to the meaning of the ordinance. Sorry I couldn't be of more assistance.
Here's my reply:
Gail,

I'm disappointed that the city attorney's office is not interested in assisting us in defining the law. I think I understand why they wish to avoid the issue.

How does the police department interpret the law? For purposes of enforcing the law uniformly across the department, I expect there would be some common procedure in place. If there is no common procedure, perhaps there should be. What should one expect the police departments response to be when openly carrying an unloaded firearm.

I'm not asking for legal advice, I'm just asking what to expect.

I would like to thank you again for your assistance on this matter.

Regards,
~David
 

CA_Libertarian

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Final reply from Gail Smith at Modesto PD:

Although carrying an unloaded firearm in plain view is not a violation of Penal Code, a police officer responding will consider the firearm as loaded until confirmed otherwise.
So, it is the policy of Modesto police to presume guilt until proven innocent.
 

CA_Libertarian

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And, my final reply to Gail at MPD:

Gail,

I understand the need to exercise caution for the safety of the officers involved. However, there should be an expectation to be treated with the respect due any law abiding citizen. I hope it is not the department's policy to treat law-abiding citizens like criminals; to presume guilt until innocence is proven.

In a recent FBI report on assaults on police officers the FBI found that almost 100% of the firearms used were obtained illegally. The report further states that offenders "eschew holsters" and carry concealed to avoid detection. Please refer to Force Science News for more information on the FBI report. The officers can rest assured that the "bad guys" will not be carrying their firearms openly in holsters. Thus, anyone openly carrying is probably a law-abiding citizen.

I hope that you will pass this information along for distribution within the police department. I have had extensive interaction with officers from the Modesto PD in the past, and have been impressed with the level of service and professionalism. It encourages me to trust I will continue to see this continue while exercising this nearly forgotten right.

Thank you again for your assistance. Please express my commendation to your supervisor, and keep up the good work.
 

CA_Libertarian

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CA_Libertarian wrote:
I happened upon a pamphlet produced by the NRA Feb2007. I was reading through the pamphlet, and noticed there was no mention of CA PC 12031. Someone reading this pamphlet would probably think you can carry loaded anywhere in the state. Aside from this omission, the information was fairly good and complete.

One claim, at the bottom of page 4, caught my attention:

The state legislature also has expressed its intention to occupy the whole field of the regulation and licensing of firearms, thus precluding cities and other localities from enacting firearms laws.
As of right now, the most difficult thing is knowing if cities can/do have laws banning OC. For example, I plan on driving from Central CA to Mesa, AZ. On the trip, I'll be passing through at least 20 incorperated areas. Am I required to know and abide by each city's special rules as I drive through on the freeway? How about if I stop for gas?

Logically, it seems to me that Due Process is not served if a reasonable person can't easily know all these laws, so I'm thinking state law would HAVE to pre-empt.

I'll definitely be e-mailing to try to get some legal citation of this claim.
No response from the NRA, but I did happen accross something on the AG's website:



GOVERNMENT CODE SECTION

State Preemption of Firearm Regulation

53071. It is the intention of the Legislature to occupy the whole field of regulation of the registration or licensing of commercially manufactured firearms as encompassed by the provisions of the Penal Code, and such provisions shall be exclusive of all local regulations, relating to registration or licensing of commercially manufactured firearms, by any political subdivision as defined in Section 1721 of the Labor Code.

53071.5 By the enforcement of this section, the Legislature occupies the whole field of regulation of the manufacture, sale, or possession of imitation firearms, as defined in Section 12250 of the Penal Code, and that section shall preempt and be exclusive of all regulations relating to the manufacture, sale, or possession of imitation firearms, including regulations governing the manufacture, sale, or possession of BB devices and air rifles described in subdivision (g) of Section 12001 of the Penal Code.
So, looks like the law does leave the door open for municipal codes to regulate everything except registration & licensing of firearms.

So, the only legally safe way to travel through CA is to keep it locked up, or contact every municipality to verify their laws.
 
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