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Thread: Sacramento Police Department Internal Memo on Unloaded Open Carry

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    State Pioneer ConditionThree's Avatar
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    http://www.calguns.net/calgunforum/s...d.php?t=111324

    Special thanks to Bill Wiese on Cal Guns for the info.

    Subject: FW: Sgt's (sic) please review at roll calls
    Importance: High

    This email has been approved by Capt.

    ** High Priority **

    It has come to my attention that a gun rights group in the Sacramento area may attempt to test officers' knowledge on the firearms laws. Recently an individual called the Sacramento Police Department and inquired about carrying an unloaded handgun in a holster on his belt in public. The caller reported he was told it was illegal and could be arrested. Members of a group known as Open Carry have suggested going to a Sacramento restaurant wearing non-concealed pistols on their belts.

    They have indicated someone will call the police and report a subject is wearing a firearm. When police arrive someone from the group will be secretly videotaping the police contact with the armed subject. It seems the group's goal is to have an officer arrest the person for 12025 or seize their firearm and then use the video in a civil law suit against the police officer.

    The following are some firearms laws that may apply if confronted with a subject wearing a pistol in a belt holster:

    PC 12025 (f), unloaded firearms carried openly in belt holsters are not concealed within the meaning of section 12025.

    PC 12025 only applies to concealable firearms, which is defined in PC12001(a) as a pistol, revolver or firearm with a barrel less than 16 inches. There is nothing prohibiting someone from carrying an unloaded, concealed rifle or shotgun on their person or in their vehicle unless the barrel is less than 16 inches.

    PC 12031(g), A firearm shall be deemed to be loaded for the purposes of this section when there is an unexpended cartridge or shell 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. **Case law now states the ammunition must be in a position from which is can be fired (People. v. Clark)

    PC 12031(e), in order to determine whether or not a firearm is loaded for the purpose of enforcing this section, peace officers are authorized to examine any firearm carried by anyone on his or her person or in a vehicle while in any public place or on any public street in an incorporated city or prohibited area of an unincorporated territory. Refusal to allow a peace officer to inspect a firearm pursuant to this section constitutes probable cause for arrest for violation of this section.

    In "People v. Clark" (1996), the California Court of Appeal clarified that in order to be "loaded" a firearm must have ammunition "placed into a position from which it can be fired." It even went so far as to point out as an example of what is not loaded to include shells attached to a shotgun inside a buttstock shell carrier. ** There is a common misconception that merely possessing both a firearm and ammunition in close proximity legally equates to loaded. This mistake stems from several PC sections that do not apply to PC 12031. 12001(j) only applies to 12023 (carry with intent to commit a felony). 12025(b)(6)(A) is a sentence enhancement which only applies if one violates 12025 (carrying concealed).

    Scenario: a person is walking down the street with an unloaded pistol carried openly on their belt. There is a loaded magazine for the pistol located next to the pistol in a magazine pouch. You run the pistol through the automated firearm system and there is no dealer record of sale. ** NOT a violation of PC 12025 or PC 12031.

    Scenario: a person is walking down the street with a shotgun (18 inch barrel) under their coat. **NOT a 12025 violation.

    Scenario: a person walking down the street has a pistol worn openly on their belt with a loaded magazine inserted into the pistol, but no round in the chamber. You run the firearm and there is a dealer record of sale to the suspect. Suspect has no criminal history. **misdemeanor violation of PC 12031. Note: If there is no dealer record of sale for the firearm or the dealer record of sale is not in the suspect's name the charge can be elevated to a felony PC 12031(a)(2)(f).

    Remember that in any scenario PC 12031(e) gives you the authority to detain the person so you can inspect the firearm per PC 12031(e). Unless you develop additional probable cause, the length of the detention will be limited to the time required to inspect the firearm.

    ** With the exception of assault weapons, there is no law that requires a handgun or long gun to be registered with the California Department of Justice. The DOJ registration language found in PC 12025(b)(6) and 12031(a)(2)(f) is a sentencing enhancement if you already have a PC 12025 or PC 12031 violation.

    Contact Detective ???? via ???? or ??? - ????. Dispatch can also reach me after hours if needed.

    Det. ?????
    Sacramento Police Department
    ??????????
    (916) ???-????

    New to OPEN CARRY in California? Click and read this first...

    NA MALE SUBJ ON FOOT, LS NB 3 AGO HAD A HOLSTERED HANDGUN ON HIS RIGHT HIP. WAS NOT BRANDISHING THE WEAPON, BUT RP FOUND SUSPICIOUS.
    CL SUBJ IN COMPLIANCE WITH LAW


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    Newbie cato's Avatar
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    Interesting.

    Sorry to see they think we're only about law suites. We only want our basic human rights respected.Civil court actionsare only a defensive measure and I don't think any of our harassed members have yet sued.

    Still, good to see a well written factual dept. memo regarding the current status of our unconstitutional loaded firearm in public laws.

    Waiting for Son of Heller!!! :celebrate

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    State Pioneer ConditionThree's Avatar
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    I havea couple ofcomments on this.

    1) I don't know where they got the idea that anyone is making an organized effort to instigate a lawsuit with police, (becauseit has neverbeen my objective)but their fear of litigation is only helpful to the cause.

    2) I don't know when this memo was initially released, but it doesn't appear to acknowledge the actual occurance of theopen carry dinner we had in April. It seems certain, however, the topic has come to their attention through one caller and subsquent monitoring of our corner of the internet.

    3) I am pleased that Sac PD seems to have a firm grasp of thelegality of unloaded open carry.
    New to OPEN CARRY in California? Click and read this first...

    NA MALE SUBJ ON FOOT, LS NB 3 AGO HAD A HOLSTERED HANDGUN ON HIS RIGHT HIP. WAS NOT BRANDISHING THE WEAPON, BUT RP FOUND SUSPICIOUS.
    CL SUBJ IN COMPLIANCE WITH LAW


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    It almost reads like; "Dammit, someone blabbed!"

    Well, cool. One of the larger, if not one of the most prominent due to location, LE agencies has it right...including case law.

    Most glaring, is there is no instruction to "educate" or "remind" the law abiding citizen of the perils of carrying a weapon in public.

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    Anti-Saldana Freedom Fighter bigtoe416's Avatar
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    Cool post! It's a little bit confusing on their stance of detaining a person open carrying though. If all a police officer can do is inspect the firearm to see if it is loaded, then when does the officer run a check on the serial number? After the officer allows the person open carrying to be on their way? Any detention beyond the 12031(e) check would require reasonable articulable suspicion of a crime being committed.

    Other than that, very cool that they are giving out correct information.

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    ConditionThree wrote:
    http://www.calguns.net/calgunforum/s...d.php?t=111324

    Special thanks to Bill Wiese on Cal Guns for the info.


    PC 12031(e), in order to determine whether or not a firearm is loaded for the purpose of enforcing this section, peace officers are authorized to examine any firearm carried by anyone on his or her person or in a vehicle while in any public place or on any public street in an incorporated city or prohibited area of an unincorporated territory. Refusal to allow a peace officer to inspect a firearm pursuant to this section constitutes probable cause for arrest for violation of this section.
    question: this says that a police officer has the right to inspect the side arm when carried in a public place.

    is a restaurant a public place? is it not private property?

    i remember reading about that group of people who were recently OCing and hassled by LEOs while they were eating at a diner. they were asked to step OUTSIDE the diner...where they were, at that point, in a public place. it was there that they LEOs inspected the side arms. would the LEOs have been legally entitled to do the same INSIDE the diner?

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    I agree with C3 here. It's too bad it took fear of litigation to get them to distribute some information. Glad they did it though.

    I especially like that it is made clear the length of the detention is limited to the time it takes to perform a 12031(e) check. That's like 2-3 minutes depending on if they're smarter than your holster.

    I don't like lvl 3 holsters, but I might get one just for the fun factor the next time I get stopped! C3 knows what I'm talkin' about.
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    TheCiscoKid wrote:
    question: this says that a police officer has the right to inspect the side arm when carried in a public place.

    is a restaurant a public place? is it not private property?

    i remember reading about that group of people who were recently OCing and hassled by LEOs while they were eating at a diner. they were asked to step OUTSIDE the diner...where they were, at that point, in a public place. it was there that they LEOs inspected the side arms. would the LEOs have been legally entitled to do the same INSIDE the diner?
    Many, many privately owned places are open to the public. Pretty much any place open to the general public would probably be fair game for a 12031(e) check. It may even be construed that your front yard would be a 'public place,' unless you have your yard fully fenced in (and the gate locked) or 'No Trespassing' signs up. This stems from the fact that anybody can walk up and knock on your door without permission.
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    ah, i see. thanks, CA_Lib

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    CA_Libertarian wrote:
    TheCiscoKid wrote:
    question: this says that a police officer has the right to inspect the side arm when carried in a public place.

    is a restaurant a public place? is it not private property?

    i remember reading about that group of people who were recently OCing and hassled by LEOs while they were eating at a diner. they were asked to step OUTSIDE the diner...where they were, at that point, in a public place. it was there that they LEOs inspected the side arms. would the LEOs have been legally entitled to do the same INSIDE the diner?
    Many, many privately owned places are open to the public. Pretty much any place open to the general public would probably be fair game for a 12031(e) check. It may even be construed that your front yard would be a 'public place,' unless you have your yard fully fenced in (and the gate locked) or 'No Trespassing' signs up. This stems from the fact that anybody can walk up and knock on your door without permission.

    There is case law (don't know it off the top of my head so I'll give myself a penalty flag) in which a supermarket parking lot is an example of a "public place". I believe inside a business is not (this is not settled law IMO). But,I'd rather see efforts to overturn 12031 rather then quibble over making 12031 more palatable in the courts.

    Someone who knows how should FOIA this document so we have a copy which looks more officialin which the authoris named.








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    This is what I found interesting:

    Scenario: a person walking down the street has a pistol worn openly on their belt with a loaded magazine inserted into the pistol, but no round in the chamber. You run the firearm and there is a dealer record of sale to the suspect. Suspect has no criminal history. **misdemeanor violation of PC 12031. Note: If there is no dealer record of sale for the firearm or the dealer record of sale is not in the suspect's name the charge can be elevated to a felony PC 12031(a)(2)(f).


    And how far back does the database go? Supposedly 1990, but I also hear that transactions in the 1980's may have been uploaded as well? I ask as I have firearms for which there are Cal. records but they date from the 80's.

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    Loneviking wrote:
    This is what I found interesting:

    Scenario: a person walking down the street has a pistol worn openly on their belt with a loaded magazine inserted into the pistol, but no round in the chamber. You run the firearm and there is a dealer record of sale to the suspect. Suspect has no criminal history. **misdemeanor violation of PC 12031. Note: If there is no dealer record of sale for the firearm or the dealer record of sale is not in the suspect's name the charge can be elevated to a felony PC 12031(a)(2)(f).


    And how far back does the database go? Supposedly 1990, but I also hear that transactions in the 1980's may have been uploaded as well? I ask as I have firearms for which there are Cal. records but they date from the 80's.
    Quote: ** With the exception of assault weapons, there is no law that requires a handgun or long gun to be registered with the California Department of Justice.

    Just don't go carrying the gun with a loaded magazine inserted into the mag well and they won't have the initial misdemeanor 12031 violation to kick up to the felony level.

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    LeagueOf1607 wrote:
    Someone who knows how should FOIA this document so we have a copy which looks more officialin which the authoris named.
    I'm looking into this. I think it would be an excellent document to forward to all the sheriffs and police chiefs.
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    Regular Member Decoligny's Avatar
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    The good thing about this memo, is that if any Sac PD officer harrasses anyone who is legally open carrying, then they can't fall back on the "I was acting under the assumption that it was illegal" defense to avoid the consequences of acting under the color of law.

    While our goal is definitely NOT to seek out lawsuits, but rahter to educate the LEO community and the general public about the legality of Open Carry, it is good to have the ability there if any LEO thinks he/she can push their own personal gun control agenda.

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    TheCiscoKid wrote:
    i remember reading about that group of people who were recently OCing and hassled by LEOs while they were eating at a diner. they were asked to step OUTSIDE the diner...where they were, at that point, in a public place.

    I don't think this was a California event. I haven't read of anything like this happening here (yet)

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    It was in Dickson City, PA. There are a few stickied threads here related to the follow-up civil rights lawsuit they filed.

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    I am actually slightly concerned about the fact that someone of our group would actually suggest to set-up the police, if that is infact what someone did. I bet they simply took it out of context.

    I am glad to see however that they took action to inform the officers, but that only looks like a rollcall meeting. . . The better question is if we can then contact the author and clarify, maybe even arrange for training of the police. The more we can communicate with them and get a dialog going, the better off I think we will be.

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    Theseus wrote:
    I am actually slightly concerned about the fact that someone of our group would actually suggest to set-up the police, if that is infact what someone did. I bet they simply took it out of context.
    Noone suggested such insanity. That's LEO paranoia, "us vs. them" mentality. Shows how bad the disconnect is between the LEO community and the gun community. It's sad, really.



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    MudCamper wrote:
    Noone suggested such insanity. That's LEO paranoia, "us vs. them" mentality. Shows how bad the disconnect is between the LEO community and the gun community. It's sad, really.
    You're right, there is certainly a disconnect, paranoia, and an 'us vs. them' attitude.

    While in the Turlock PD today to pick up documents I requested regarding my incident, I had the opportunity to talk to Captain Langston (not sure I got the spelling right). He was a very nice fellow, and talked to me about OCDO. During our 30 minute conversation, he asked if we were still planning our meetup. Then he asked if I would inform him where we were planning to go (I didn't feel that was info they needed). He then stated that he expects that 'one of your guys will call in a report just to see how we respond.' I tried not to laugh, and assured him the last thing I want is to be in court - either as defendant or complainant. I assured him that I believe the same applies for all of us here.

    When I mentioned the Sac PD memo, he said they already have reviewed it and have 'begun the education process.'
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    The whole "Us v Them" thing got me thinking. . . Are LEO's more hated than lawyers? What a thought.

    I too hope that the other PD's that read these forums understand our TRUE intent, and hope that maybe more LEO's would come in and join the conversation. I bet most of them merely enforce their ignorence of gun laws because of some political pressure to do so, not because they themselves believe it.

    I bet they can provide some valuable insight and assistance.

    CA_Libertarian wrote:
    MudCamper wrote:
    Noone suggested such insanity. That's LEO paranoia, "us vs. them" mentality. Shows how bad the disconnect is between the LEO community and the gun community. It's sad, really.
    You're right, there is certainly a disconnect, paranoia, and an 'us vs. them' attitude.

    While in the Turlock PD today to pick up documents I requested regarding my incident, I had the opportunity to talk to Captain Langston (not sure I got the spelling right). He was a very nice fellow, and talked to me about OCDO. During our 30 minute conversation, he asked if we were still planning our meetup. Then he asked if I would inform him where we were planning to go (I didn't feel that was info they needed). He then stated that he expects that 'one of your guys will call in a report just to see how we respond.' I tried not to laugh, and assured him the last thing I want is to be in court - either as defendant or complainant. I assured him that I believe the same applies for all of us here.

    When I mentioned the Sac PD memo, he said they already have reviewed it and have 'begun the education process.'

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    Well one thing that everyone understands is money and they want to keep theirs and KNOW they will lose in court if people take them to court. I know I would if I had to pay for anything that came up with me getting arrested and or charged for this.

    The more people they do this to the more money it will cost their department. Money always will get people to fall inline everytime. I think the more cases that we win the better but it is sad that it comes to that.

    We all know if there wasn't that fear of lawsuits they wouldn't have even wasted the time to send out that memo.

    All I hope is that if and when you do get arrested, harrassed or whatever you don't go into court with a 1 million dollar emotional distress case.....

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    fresno-opencarry-now wrote:
    Well one thing that everyone understands is money and they want to keep theirs and KNOW they will lose in court if people take them to court. I know I would if I had to pay for anything that came up with me getting arrested and or charged for this.

    The more people they do this to the more money it will cost their department. Money always will get people to fall inline everytime. I think the more cases that we win the better but it is sad that it comes to that.

    We all know if there wasn't that fear of lawsuits they wouldn't have even wasted the time to send out that memo.

    All I hope is that if and when you do get arrested, harrassed or whatever you don't go into court with a 1 million dollar emotional distress case.....
    No, just recouperation of legal fees and about $250K. That ought to be enough. And then turn around and donate it back to the PD for training.

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    PC 12031(g), A firearm shall be deemed to be loaded for the purposes of this section when there is an unexpended cartridge or shell 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. **Case law now states the ammunition must be in a position from which is can be fired (People. v. Clark)
    ...

    In "People v. Clark" (1996), the California Court of Appeal clarified that in order to be "loaded" a firearm must have ammunition "placed into a position from which it can be fired." It even went so far as to point out as an example of what is not loaded to include shells attached to a shotgun inside a buttstock shell carrier. ** There is a common misconception that merely possessing both a firearm and ammunition in close proximity legally equates to loaded. This mistake stems from several PC sections that do not apply to PC 12031. 12001(j) only applies to 12023 (carry with intent to commit a felony). 12025(b)(6)(A) is a sentence enhancement which only applies if one violates 12025 (carrying concealed).
    ...

    Scenario: a person walking down the street has a pistol worn openly on their belt with a loaded magazine inserted into the pistol, but no round in the chamber. You run the firearm and there is a dealer record of sale to the suspect. Suspect has no criminal history. **misdemeanor violation of PC 12031.
    Are these sections not in conflict? The first two make it clear what "loaded" means in light of People v. Clark, but the scenario ignores that definition.

    Also curious is the insistence that there is no gun registration in California (except for "assault weapons"), while pointing out that charges should be upgraded to a felony if there is no DROS in the carrier's name.

    "Why, nooooo, there's no registration in California! But we're just going to check our statewide computer database to make sure you're the reg... er, umm, the lawful owner."


    I really feel sorry for those of you imprisoned there.


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    KBCraig wrote:
    **Case law now states the ammunition must be in a position from which is can be fired (People. v. Clark)
    ...

    In "People v. Clark" (1996), the California Court of Appeal clarified that in order to be "loaded" a firearm must have ammunition "placed into a position from which it can be fired." It even went so far as to point out as an example of what is not loaded to include shells attached to a shotgun inside a buttstock shell carrier.
    PC 12031.
    Are these sections not in conflict? The first two make it clear what "loaded" means in light of People v. Clark, but the scenario ignores that definition.

    Also curious is the insistence that there is no gun registration in California (except for "assault weapons"), while pointing out that charges should be upgraded to a felony if there is no DROS in the carrier's name.

    "Why, nooooo, there's no registration in California! But we're just going to check our statewide computer database to make sure you're the reg... er, umm, the lawful owner."


    I really feel sorry for those of you imprisoned there.
    Wouldn't one be able to argue that a loaded magazine in a semi-auto pistol but no round in the chamber is not in a position to fire per the definition of People vs. Clark?
    One would have to first draw the weapon then rack the slide; loading a round into the chamber to have any of the rounds in the clip to be in a position from which they could be fired.

    I know 12031 specifically includes a round attached to a firearm in any way and also includes a loaded magazine in the gun....but People VS. Clark is the overruling case law correct?

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    camsoup wrote:
    Wouldn't one be able to argue that a loaded magazine in a semi-auto pistol but no round in the chamber is not in a position to fire per the definition of People vs. Clark?
    One would have to first draw the weapon then rack the slide; loading a round into the chamber to have any of the rounds in the clip to be in a position from which they could be fired.

    I know 12031 specifically includes a round attached to a firearm in any way and also includes a loaded magazine in the gun....but People VS. Clark is the overruling case law correct?
    I think you're misunderstanding the Clark ruling; let me try to explain...

    Basically, the statute lists 3 ways a pistol can be loaded: chamber, magazine, or clip. The court here says that these three apply only when they are attached to the firearm 'in a firing position.' So, if you tape a bullet to the side of your slide, it's not 'loaded.' You could tape your full magazine to the side of your pistol, and only have to worry about getting funny looks. However, if that magazine is attached in a way that makes the prepares the firearm to be fired, then it is a violation of 12031.

    One of the rules of interpretation is that the words there cannot be left as surplusage. If the court were to say that the only way a firearm can be deemed 'loaded' under 12031 is for a round to be chambered, that would leave all mention of a magazine or clip as surplusage. Therefore, it must be construed to mean the using a magazine or clip to bring the pistol into a 'more ready to fire' condition constitutes loading the firearm.

    I hope that makes sense...
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