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Thread: DOJ still putting out bad information

  1. #1
    Regular Member Decoligny's Avatar
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    Here is an e-mail question that I sent to DOJ Firearms division along with their response

    From: ME

    It is my understanding that currently there is nothing in the Penal Code that prohibits a law abiding citizen from carrying an unloaded firearm in a belt holster and carrying a full magazine in a belt holder, while traveling in a motor vehicle (except within 1000 feet of a school zone), as long as the ammunition is in no way attached to the firearm.

    It has been brought to my attention that Kern County Sheriff's Deputies are being trained that anyone, including law abiding citizens who are carrying both an unloaded firearm and ammunition for that firearm are to be considered as carrying a loaded firearm.

    Which is the correct definition? If I were to drive with a firearm and ammunition outside of any prohibited areas (schools or state capital area), would I be violating the law?

    FUD RESPONSE FROM DOJ:

    Mr. XXXXX,

    This is in response to your recent correspondence to the Bureau of Firearms, regarding driving in a motor vehicle with an exposed firearm and ammunition on your person. Many jurisdictions in California are beginning to interpret the term "loaded firearm" to include a loaded magazine, or a person with ammunition on his or her person, in the same vehicle as an otherwise legally transported firearm for which that ammunition is designed. This is a matter of interpretation of state law by local jurisdictions, and as such a matter most appropriately addressed with the local district attorney's office.

    That said, you may want to refer to Section 12026.1 of the California Penal Code, regarding the transportation of a concealable firearm in a motor vehicle:

    " 12026.1. (a) Section 12025 shall not be construed to prohibit any citizen of the United States over the age of 18 years who resides or is temporarily within this state, and who is not within the excepted classes prescribed by Section 12021 or 12021.1 of this code or Section 8100 or 8103 of the Welfare and Institutions Code, from transporting or carrying any pistol, revolver, or other firearm capable of being concealed upon the person, provided that the following applies to the firearm: (1) The firearm is within a motor vehicle and it is locked in the vehicle's trunk or in a locked container in the vehicle other than the utility or glove compartment. (2) The firearm is carried by the person directly to or from any motor vehicle for any lawful purpose and, while carrying the firearm, the firearm is contained within a locked container. (b) The provisions of this section do not prohibit or limit the otherwise lawful carrying or transportation of any pistol, revolver, or other firearm capable of being concealed upon the person in accordance with this chapter. (c) As used in this section, "locked container" means a secure container which is fully enclosed and locked by a padlock, key lock, combination lock, or similar locking device."


    I hope this information is helpful to you. If you have any further questions or need further assistance, please contact the Bureau of Firearms at (916) 263 - 4887, or via e-mail.

    Sincerely,

    Brent George
    Staff Services Analyst
    California Department of Justice
    Bureau of Firearms
    Training, Information, and Compliance Section

    (916) 263 - 4868

  2. #2
    Regular Member Decoligny's Avatar
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    Here is the reply that I will be sending out this evening.



    Mr. George

    I found the information you provided to be quite interesting. You stated “Many jurisdictions in California are beginning to interpret the term "loaded firearm" to include a loaded magazine, or a person with ammunition on his or her person, in the same vehicle as an otherwise legally transported firearm for which that ammunition is designed.”

    Is the California Penal Code so amorphous that its meaning can change from one jurisdiction to the next? I thought it was the job of the DOJ and the Attorney General’s Office to determine for the ENTIRE State what the proper interpretation of the law is.

    From your own mission statement: “Bureau of Firearms staff will be leaders in providing firearms expertise and information to law enforcement, legislators, and the general public in a comprehensive program to promote legitimate and responsible firearms possession and use by California residents.”

    Could you please enlighten me as to why DOJ Bureau of Firearms has not provided information to the various jurisdictions that the California Penal Code in fact has specific definitions of when a firearm is considered loaded?

    Having a firearm and ammunition for that firearm in the possession of the same person only makes the firearm loaded in two specific circumstances.

    Circumstance One: When a person is carrying a firearm that is loaded per the definition in PC 12001(j) and has the intent to commit a felony per PC 12023(a).

    Circumstance Two: When the person is in any of the areas listed in PC 171c or PC 171d.

    Could you explain to me why it is acceptable for "many jurisdictions" to treat law abiding citizens with the automatic assumtion that they are "intent on committing a felony" when they have no reason to believe that they are criminals other than the lawful posession of an unloaded firearm?

    The definition of “loaded firearm” in relation to a law abiding citizen is to be found in California Penal Code 12031(g):

    “A firearm shall be deemed to be loaded for the purposes of this section when there is an unexpended cartridge or shell, consisting of a case that holds a charge of powder and a bullet or shot, in, or attached in any manner to, the firearm, including, but not limited to, in the firing chamber, magazine, or clip thereof attached to the firearm; except that a muzzle-loader firearm shall be deemed to be loaded when it is capped or primed and has a powder charge and ball or shot in the barrel or cylinder.”

    The definition of “concealed firearm” in relation to a law abiding citizen is to be found in California Penal Code 12025, and in subsection (f) it clearly states “Firearms carried openly in belt holsters are not concealed within the meaning of this section.

    So, if a person were to be driving with a firearm in a belt holster (not concealed per PC12025(f)), and did not have ammunition attached to the firearm in any manner (not loaded per PC 120239(a)), and was not within 1,000 feet of a K-12 school or on the grounds of a University (PC 626.9) and was not driving within the State Capitol area (PC 171c), could you please tell me exactly how would they be violating ANY provision of the California Penal Code?

  3. #3
    Campaign Veteran marshaul's Avatar
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    I enjoyed your response. I look forward to any updates.

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    I will be looking foward totheir response.

  5. #5
    Regular Member Decoligny's Avatar
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    Well, here's the exact response that I expected from DOJ, or should I say lack of response.


    Mr. _________,

    This is in response to your recent correspondence to the Bureau of Firearms, regarding your follow-up e-mail concerning the transportation of a concealable handgun in a motor vehicle. Bear in mind that I can only advise you of applicable Penal Code sections, and of how laws have been applied in the past (left up to District Attorneys to prosecute individual cases). Beyond this, I cannot engage in legal debate with you, nor can I offer you legal advice.

    I hope this information is helpful to you. If you have any further questions or need further assistance, please contact the Bureau of Firearms at (916) 263 - 4887, or via e-mail.

    Sincerely,

    Brent George
    Staff Services Analyst
    California Department of Justice
    Bureau of Firearms
    Training, Information, and Compliance Section

    (916) 263 - 4868

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    What a crock. As soon as code is cited they run and hide.

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    Regular Member Decoligny's Avatar
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    Well, Since the Department of Justice, Bureau of Firearms feels that this matter is most appropriately addressed by the local Distric Attorney's Office, and since I may be faced with this situation in any of the counties that I might happen to find myself, then I must address the following to each of the 58 DAs in California.

    This is draft #1. Any comments or corrections/additions would be greatly appreciated.



    To __________County District Attorney:

    I recently contacted the Department of Justice, Bureau of Firearms with a question, and was advised that this matter would be most appropriately addressed by the District Attorney’s Office.

    Question: If an otherwise law abiding citizen[/b] were to be legally driving a motor vehicle, with a firearm for which they are the registered owner, openly carried in a belt holster (not concealed per PC12025(f)), and had the ammunition for that firearm in his/her immediate possession, but did not have said ammunition attached to the firearm in any manner (not loaded per PC 12023(g)), and was not knowingly driving within 1,000 feet of a K-12 school (PC 626.9), and was not driving within the State Capitol area (PC 171c), would that person be committing any violation of California Penal Code?

    My concern is this, I do not want to misinterpret the Penal Codes. The DOJ Bureau of Firearms will not answer my specific questions. The attorneys I have contacted are not willing to answer the questions, but are more than willing to take my money should I have to defend against actual criminal charges. If you cannot answer my specific question, then how is an average law abiding citizen supposed to completely and legally exercise his 2nd Amendment rights to the fullest extent possible within the law, and avoid being arrested and prosecuted?

    If as noted in the attached reply from DOJ Bureau of Firearms, “Many jurisdictions in California are beginning to interpret the term "loaded firearm" to include a loaded magazine, or a person with ammunition on his or her person, in the same vehicle as an otherwise legally transported firearm for which that ammunition is designed”, and no criminal activity has occurred, when the appropriate definition of “loaded firearm” (Penal Code 12031(g)) should be used, it would appear to me that the “many jurisdictions” are not trying to enforce the law, but are rather imposing their own view that no one but Law Enforcement should be allowed to carry a firearm, thus “discouraging” law abiding citizen’s from carrying firearms by the implied consequence of having to expend time and money to defend one’s self from criminal prosecution for charges that fall under “the color of law”.

    Attached: E-mails to and from DOJ:



    INSERT E-MAIL TRAFFIC HERE



    Various Definitions of Loaded Firearm from California Penal Code:

    Penal Code 171e. A firearm shall be deemed loaded for the purposes of Sections 171c and 171d whenever both the firearm and unexpended ammunition capable of being discharged from such firearm are in the immediate possession of the same person.

    Penal Code 626.9(j) For purposes of this section, a firearm shall be deemed to be loaded when there is an unexpended cartridge or shell, consisting of a case that holds a charge of powder and a bullet or shot, in, or attached in any manner to, the firearm, including, but not limited to, in the firing chamber, magazine, or clip thereof attached to the firearm. A muzzle-loader firearm shall be deemed to be loaded when it is capped or primed and has a powder charge and ball or shot in the barrel or cylinder.

    Penal Code 12001(j) defines a loaded firearm as: For Section 12023, a firearm shall be deemed to be "loaded" whenever both the firearm and the unexpended ammunition capable of being discharged from the firearm are in the immediate possession of the same person. Penal Code 12023. (a) Every person who carries a loaded firearm with the intent to commit a felony is guilty of armed criminal action. (b) Armed criminal action is punishable by imprisonment in a county jail not exceeding one year, or in the state prison.

    Penal Code 12025. (a) A person is guilty of carrying a concealed firearm when he or she does any of the following:
    (6) By imprisonment in the state prison, or by imprisonment in a county jail not to exceed one year, by a fine not to exceed one thousand dollars ($1,000), or by both that fine and imprisonment if both of the following conditions are met[/b]:
    (A) Both the pistol, revolver, or other firearm capable of being concealed upon the person and the unexpended ammunition capable of being discharged from that firearm are either in the immediate possession of the person or readily accessible to that person, or the pistol, revolver, or other firearm capable of being concealed upon the person is loaded as defined in subdivision (g) of Section 12031.
    (B) The person is not listed with the Department of Justice pursuant to paragraph (1) of subdivision (c) of Section 11106, as the registered owner of that pistol, revolver, or other firearm capable of being concealed upon the person.

    Penal Code 12031(g) A firearm shall be deemed to be loaded for the purposes of this section when there is an unexpended cartridge or shell, consisting of a case that holds a charge of powder and a bullet or shot, in, or attached in any manner to, the firearm, including, but not limited to, in the firing chamber, magazine, or clip thereof attached to the firearm; except that a muzzle-loader firearm shall be deemed to be loaded when it is capped or primed and has a powder charge and ball or shot in the barrel or cylinder.

    Penal Code 12031(g) is the definition that most aptly applies to law abiding citizens. This is the definition for someone who is not intent upon committing a felony, not involved in street gang crimes, not in a school zone, and not on the Capitol grounds.


    I anticipate your prompt reply

    Decoligny

  8. #8
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    Decoligny wrote:
    ...

    This is draft #1. Any comments or corrections/additions would be greatly appreciated.



    To __________County District Attorney:

    I recently contacted the Department of Justice, Bureau of Firearms with a question, and was advised that this matter would be most appropriately addressed by the District Attorney’s Office.

    Question: If an otherwise law abiding citizen
    ...
    I would omit the word "otherwise" as it implies that the action in question is not law-abiding. Also, I would drop the words "law abiding" as this should be presumed. I would instead write it as follows:

    "If a citizen not exempt from CA PC 12031..."

    It may also be useful to add that you are not interested in applying for a LTC (which is probably the first thing they'll tell you to do to avoid being unlawfully detained, arrested, assaulted, or murdered by local LE).

    ETA:

    My concern is this, I do not want to misinterpret the Penal Codes. The DOJ Bureau of Firearms will not answer my specific questions. The attorneys I have contacted are not willing to answer the questions, but are more than willing to take my money should I have to defend against actual criminal charges. If you cannot answer my specific question, then how is an average law abiding citizen supposed to completely and legally exercise his 2nd Amendment rights to the fullest extent possible within the law, and avoid being arrested and prosecuted?
    By the way, this is an excellent point to include. This demonstrates that you are seeking equal protection under the law by asking for a clearly defined line before you accidently cross it. I'm certain that most (maybe all) of the DA's won't respond in any certian terms. However, if you do get more than one clear response, they probably will be different.

    This would be great evidence that there is no 'equal protection' under this statute, meaning there is no way a reasonable person could know exactly what is being prohibited and meaning that LE/DAs/courts could potentially apply it more severely out of bias. This, of course, is unconstitutional and an honest court would have to declare the statute null and void.


    (I'm on my lunch break, so I can't look up the case law on 'equal protection,' but it should be easy to find. The language the court used in that decision makes it very clear that for a statute to be enforceable it must be very clear in defining the prohibited activity.)
    Participant in the Free State Project - "Liberty in Our Lifetime" - www.freestateproject.org
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    Decoligny wrote:
    Well, Since the Department of Justice, Bureau of Firearms feels that this matter is most appropriately addressed by the local Distric Attorney's Office, and since I may be faced with this situation in any of the counties that I might happen to find myself, then I must address the following to each of the 58 DAs in California.

    This is draft #1. Any comments or corrections/additions would be greatly appreciated.



    To __________County District Attorney:


    seems to be a much better letter than mine was and hope to hear the response you get.

  10. #10
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    I sent an email which i thought they ignored a few weeks ago and i just got a response.

    MR....

    This is in response to your recent correspondence to the Bureau of Firearms, regarding open carry of an unloaded firearms. Bear in mind that some superior courts have ruled that readily accessible ammunition and / or loaded magazines inclose proximity tothe correspondingfirearm for that ammunition may constitute a loaded firearm.


    Aside from that, you should familiarize yourself withSections 12020 through 12054 of the California Penal Code, which address firearms carry and possession, and concealed vs. unconcealed carry, and transportation of firearms in a motor vehicle in California.

    ThesePenal Code sectionsare available on the Bureau of Firearms website, at www.ag.ca.gov/firearms, under Dangerous Weapons Control Laws.

    I hope this information is helpful to you. If you have any further questions or need further assistance, please contact the Bureau of Firearms at (916) 263 - 4887, or via e-mail.

    Sincerely,

    Brent George
    Staff Services Analyst
    California Department of Justice
    Bureau of Firearms
    Training, Information, and Compliance Section

    (916) 263 - 4868

  11. #11
    Regular Member Decoligny's Avatar
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    awesomeness wrote:
    I sent an email which i thought they ignored a few weeks ago and i just got a response.

    MR....

    This is in response to your recent correspondence to the Bureau of Firearms, regarding open carry of an unloaded firearms. Bear in mind that some superior courts have ruled that readily accessible ammunition and / or loaded magazines inclose proximity tothe correspondingfirearm for that ammunition may constitute a loaded firearm.


    Aside from that, you should familiarize yourself withSections 12020 through 12054 of the California Penal Code, which address firearms carry and possession, and concealed vs. unconcealed carry, and transportation of firearms in a motor vehicle in California.

    ThesePenal Code sectionsare available on the Bureau of Firearms website, at http://www.ag.ca.gov/firearms, under Dangerous Weapons Control Laws.

    I hope this information is helpful to you. If you have any further questions or need further assistance, please contact the Bureau of Firearms at (916) 263 - 4887, or via e-mail.

    Sincerely,

    Brent George
    Staff Services Analyst
    California Department of Justice
    Bureau of Firearms
    Training, Information, and Compliance Section

    (916) 263 - 4868
    So in other words, read the Penal Code for yourself is the best answer Bureau of Firearms has for the people who have already read the Penal Code and still have questions on what the Penal Code means.

    BRILLIANT, THE MAN IS A GENIUS. (NOT)

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    Decoligny wrote:

    So in other words, read the Penal Code for yourself is the best answer Bureau of Firearms has for the people who have already read the Penal Code and still have questions on what the Penal Code means.

    BRILLIANT, THE MAN IS A GENIUS. (NOT)
    And when i called them on the phone they said unloaded open carryis legal with the restrictions but localpolice deptcan detain and arrest you if they want. So far the DOJ has given me two different responses....

  13. #13
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    Document the responses best you can; get them in writing (with a signature on the letter). What they advise you is not legally binding - they can't give you permission to break any law. However, if there is ever a need for it, this sort of lack of clarity from the 'authorities' could help convice a jury that the law is unconstitutionally vague.

    Beyond this, I think you would be beating a dead horse.
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  14. #14
    Regular Member Decoligny's Avatar
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    CA_Libertarian wrote:
    Document the responses best you can; get them in writing (with a signature on the letter). What they advise you is not legally binding - they can't give you permission to break any law. However, if there is ever a need for it, this sort of lack of clarity from the 'authorities' could help convice a jury that the law is unconstitutionally vague.

    Beyond this, I think you would be beating a dead horse.
    That is exactly the reason I am requesting this information. And why I intend to make it available to everyone who might have a need for it.

    And you never know what the future might hold with the Heller case and what changes it might foster.

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    (for now regarding this issue i am only in the research phase....)

    before i contacted the local PD i emailed the CA BOF(bureau of firearms) awhile ago, they emailed me back a few days ago in writing explaining some of the gun laws backed up by the penal code, mostly saying its legal to open carry but with some restrictions.

    Just today at 5pm they called me on the phone to further discuss the matter and they were very nice saying its legal to walk down the street. They also referenced the exact penal code that explains the open carry, in incorperated areas the gun has to unloaded and unincorperated areas the gun can be loaded(ex-parts of northern CA)Asked them a bunch of stuff and i told them i contacted the local PD and the PD did not say its illegal but they were not friendly to the idea.

    The BOF told me the local cops will do what ever they can to stop people but as long as i am not violating the laws there is nothing they can do and the police are very well trained and are aware open carry is legal. The BOF said the worst the cops will do is search me and make sure the gun is unloaded and give me a lecture. They went on to say that the laws are so complex. Also told me open carry does not apply to cars(debateable but was not interested at the moment in OC in a car)

    I told them i was researching it to see if i could bring a gun to the range legally(since i would have to walk to my car with a gun), also told them studing the laws was part of my major and told them the laws are poorly written, controdicting itself and they agreed. I asked them if they would be willing to put the same things they told me into writing on a email and they said they might, need to check with their boss. Also said they would keep my info on fileand do some more research and contact me back.

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    Regular Member Decoligny's Avatar
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