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Thread: Got Arrested for OC...

  1. #1
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    So, I did it. I OC'd down to the beach to enjoy the Fourth of July, and, I got arrested. The Charge is Carrying a Loaded Firearm in Public, and it wasn't loaded. The magazine wasfull,in a Magazine pouch, attached to the holster, and the officer told me that that was considered loaded. As I understood it, it was not considered loaded unless it was ready to fire, meaning Magazine in the weapon. Any help I can get on this is hugely appreciated, and any Gun Lawyers out there, if you're interested in this, gimme a PM and lemme know. A Marine is Arrested on the 4th of July for Exercising his rights to carry a gun. Poetic freakin justice, huh?

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    If I were to find myself in a similar situation, I would GET A GOOD LAWYER and follow his/her advice. I'm imagining it might start with "shut up and DON'T post any further details on this forum". But, since I am not an attorney(IANAL), don't take this as legal advice, it is not intended to be. I'm just imagining what might be a prudent course of action. After the incident is settled and done, I'm sure all of us will want to know more. Only add further info on this forum upon the advice of your attorney.

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    Sound advice, and I'll take it. I just wanted to get some advice and info about the law mainly, working on finding an attorney right now.

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    Regular Member Gunslinger's Avatar
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    If the mag was kept separate from the pistol, under CA statute, it was not loaded. There are many postings on this site about that, and I am relying on their accuracy. The reasonable man would certainly agree. If you were arrested unlawfully, as it appears you were, and are active duty in the Corps, contact your JAG office. They will advise you of the law and you will be better prepared to seek a lawyer for the initial consultation. Good luck! If these are the facts in the case, you have standing for a suit, at tort, for malicious prosecution and false arrest. I'm no expert in CA law, but your local JAG office will be.
    "For any man who sheds his blood with me this day shall be my brother...And gentlemen now abed shall think themselves accursed, they were not here, and hold their manhoods cheap whilst any speaks who fought with us on Crispin's day." Henry V

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    Accomplished Advocate BB62's Avatar
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    Look up Jim March on The High Road (.org).

    He is not an attorney, but I'm sure he has plenty of California RKBA connections.

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    Regular Member Gunslinger's Avatar
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    Here you go: If the facts are as you stated, you did not carry a loaded firearm. CA RS 12031 section as noted below.



    (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.


    "For any man who sheds his blood with me this day shall be my brother...And gentlemen now abed shall think themselves accursed, they were not here, and hold their manhoods cheap whilst any speaks who fought with us on Crispin's day." Henry V

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    Regular Member Decoligny's Avatar
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    http://trutanichmichel.com/

    Looks like he has already been referred to the "Right People" on a couple other boards. Trutanich Michel is a great law firm. The represent Calguns.net and the NRA.



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    This sounds like a pure case of law enforcement intimidation through false arrest. It is the LEO's responsibility to have knowledge of the definition of "loaded" under CA statute. It is ironic - if you had carried concealedwithout a permit, that WOULD have been a criminal offense but you could not have been targeted for intimidation- because the odds are you would not have been "made" unless you were disorderly. The beach (on the 4th of July) probably wouldn't have been my choice for an OC "test". I have my own perspective on OC. Even though OC is legal in Colorado Springs, I go to a great deal of trouble preparing for an OC"Out & About".I make a concerted effort to present myself in a manner thatconforms with people's expectations and perceptions.If you make someone "uncomfortable", while wearing a side-arm openly ( a citizen or LEO)-maybe you should consider "re-packaging the product" ( YOU & your side-arm).We should be focused upon "selling our product" ( the principle that people should be able to responsibly open carry a side-arm).I realize there exists a wide spectrum of attitudes on "packaging" OC..... but... is it productive to be butting heads with LEO's when we could be winning the "hearts & minds" of LEO's and other citizens? It's "legal" for me to OC in Colorado, but if I "push the envelope" to extremes - I risk alienating other folks, LEO's,and endangering the effort to gain greater acceptace for OC. I don't live in California anymore - formally a San Bernardino resident - so I know your situation is peculiar to CA. I have a feeling though , if you folks in Californian push the issue too hard , it may backfire in Sacramento - with stricter statute on "unloaded" definition. Sad thing is the criminals out there laugh at California law anyway. They don't have any "issues" over whether or not to arm themselves. OC will make California a safer place.

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    Decoligny wrote:
    http://trutanichmichel.com/

    Looks like he has already been referred to the "Right People" on a couple other boards. Trutanich Michel is a great law firm. The represent Calguns.net and the NRA.

    Do they strictly do criminal defense, or do they also handle civil rights violations (not resulting in prosecution)? I have a good referral, but it doesn't hurt to shop around.
    Participant in the Free State Project - "Liberty in Our Lifetime" - www.freestateproject.org
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  10. #10
    Regular Member Decoligny's Avatar
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    I believe they do civil also, call them, it couldn't hurt.And they might have a good reference for you if they don't. Definitely pursue this legally.

    If they think you are playing a game, show them you play with the big boys.

  11. #11
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    I did a quick search of Google and didn't find them. Can someone post or PM me their contact info?
    Participant in the Free State Project - "Liberty in Our Lifetime" - www.freestateproject.org
    Supporter of the CalGuns Foundation - http://www.calgunsfoundation.org/
    Supporter of the Madison Society - www.madison-society.org


    Don't Tread On Me.

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    http://trutanichmichel.com/

    It's up in one of the previous posts.

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    Have you seen a Magistrate yet? If so, what did she say?

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    Founder's Club Member MudCamper's Avatar
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    You clearly were not violating 12031. Hopefully the charges will be dropped before it even sees a DA.

    You already have been advised in several post of the best firearms attorney in SoCal.

    After the charges are dropped (or you win in court) you should definately file a suit for false arrest. This one is just flagrant beyond belief. And per a recent 9th Circuit Court ruling, LEO are liable for false arrest when they don't know the law.





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    This is really offensive. If there is an OC/gun friendly media outlet in your area (radio/network tv/paper), I would maybe pitch the story to them, unless you get a lawyer, who can do that for you. Being in the Core, the 4th, an illegal arest, all make for a great story, and some real ink (publicity) on the OC rights.

    Ditto X 10 when these illegal "charges" are dropped, make them $P$A$Y$ for it with a civil action.

    Good luck! (you won't need it, but just being kind)

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    State Researcher Kevin Jensen's Avatar
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    bobbarker wrote:
    The magazine wasfull,in a Magazine pouch, attached to the holster, and the officer told me that that was considered loaded.
    I assume this is how you were carrying, like this photo?



    (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.
    If this the type of holster you used, maybe the LEO thought that the magazine was attached to the firearm via the holster. Kind of a stretch, I know, but the part I highlighted in red leaves the door open to this possibility.

    Fight this charge with all of your might! Send a message to them that following the law, is not unlawful. (Duh!)
    "An armed society is a polite society. Manners are good when one may have to back up his acts with his life." Robert A. Heinlein

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    Great pic! I respectfully submit that the magazine is attached to the holster, not in any way the weapon. The firearm is attached to the holster, and not in any way to the mag. The holster is not an attaching device of any kind between the two separate pieces.

    In fact, and to the contrary, the holster is specifically created to physically segregate the firearm away from the mag.

    In no way could this be construed as a loaded fireman since one would have to detach the mag from the holster, and then secondly attach it to the firearm, to be considered "loaded."

    To be validly analogous, this is no different than a set of keys, not in a lock, but connected to a device that holds the keys, and separately holds the lock. Without attaching the keys to the lock, the lock cannot be possibly be opened.

    This was pure, flagrant intimidation and a crime committed by some rogue cop who needs to lose his tarnished badge ASAP.

    The rogue with a badge was an LHO who did this, not an LEO. LHO = "Law Harassing Official"

    THIS ASSUMES ALL INFO IS REAL!!

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    Founder's Club Member MudCamper's Avatar
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    12031 was clarified by People v Clark. The ammunition can even be attached and still not be "loaded". It must be "placed into a position from which it can be fired".

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    I've always thought "but not limited to" was vague on purpose, basically waiting to be tried in court. If you've got the stomach for it, the fight that is - I'd like to thank you. I'm sure the LEO in question was instructed that the meaning of "loaded" was rounds in the magazine. I curious if the magazine were on your weak side independent of the holster in every way, if the same arrest would of occured. Good luck, and if any more details are given on an open forum they should be "hypothetical". - JB

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    Founder's Club Member MudCamper's Avatar
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    JB-Norcal wrote:
    I've always thought "but not limited to" was vague on purpose, basically waiting to be tried in court. If you've got the stomach for it, the fight that is - I'd like to thank you.
    It has been tested in court. And settled. Read People v Clark.



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    This is the holster, or, dang near. It holds the magazine the same as mine. A little closer, but still not ready to fire. And I ask this. If the Magazine is in some way attached to the pistol, wouldn'tthe magazine come out of the pouch when the pistol is drawn? Wouldn't the pistol come out if the magazine was removed?The answer to those, is yes, and since they must be removed independently, they are in NO way attached.



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    Just remember that just because you were arrested for it does NOT mean you will be charged with it. Odds are the cop has NO CLUE as to the law and assumed he was correct. Bring the open carry flyer to court and state the codes BUT odds are the judge will know and throw this out as well.

    If you get a lawyer make sure that your fees are paid for by the p.d. in a false arrest/civil or whatever case you can get out of them.

    I didn't see a mag + pistol in any of the pics shown so far to be labeled loaded. We need to keep at this if anything just to educate the local p.d. as to WHAT our rights are and what they are doing WRONG.

    Keep us updated BUT make sure that the court costs will be paid for by the p.d.

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    Every thought of going to the p.d. and bringing the LAW with you and seeing if they will drop the charges BEFORE it goes anywhere? Talk with the top dog and see if he realizes what is LAW and what is simple police intimidation and inability to know the REAL law.

    I think it would be worth a shot talking with the arresting officers boss FIRST before going for the lawyer route just to see if the BOSS there will say "he was doing it legally and we don't want to get sued"....

    Just a thought.

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    I am also interested in this case and how this turns out. Based on the help I have found on this site I too started open carry just yesterday!

    I ran into a set of sheriff deputies in Rowland Heights at the In-n-out and nota single issue from them. They looked, nodded their heads and turned back to talk to each other.

    I can't contribute to a defense fund only because I am saving for mine if I need it, but I have decided to spend my no unemployed butt to lobbying for loaded open carry.

    I don't need CCW. . . Or the bill that comes with getting it. . I would rather spend it on more ammo or another weapon.

    Good luck and keep us posted.

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