Sacramento Police Department Internal Memo on Unloaded Open Carry

fresno-opencarry-now · Jul 19, 2008

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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.....

Theseus · Jul 20, 2008

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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.

KBCraig · Jul 21, 2008

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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.

Click to expand...

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."
:banghead::banghead::banghead::cuss:

I really feel sorry for those of you imprisoned there.

camsoup · Jul 21, 2008

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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.

Click to expand...

Click to expand...

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."
:banghead::banghead::banghead::cuss:

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?

CA_Libertarian · Jul 21, 2008

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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...

MudCamper · Jul 24, 2008

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Just FYI, I created a PDF version of the SPD OC Memo and made it available here:

http://www.californiaopencarry.org/SPD_oc_memo.pdf

fresno-opencarry-now · Jul 24, 2008

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The sad part is really how pitiful the memo is trying to make LEGAL CITIZENS look when wanting to simply enjoy their rights. We MUST be after money or legal action for us to do this right?

And they wonder why so many people look at cops in disgust. I can understand those who don't know or care to know what a regular persons rights are BUT for them to send out memo's saying all we care about is "secretley video taping and sueing cops" is something that is PITIFUL. That is about the only word that comes to mind, PITIFUL.

Also whoever said to "reinvest" the money into "police training", yeah I will pass on that one. That should be a given that they respect and FOLLOW our rights first and foremost instead of assuming we are out to get them.

Let us enjoy the rights we are given by birth and these cops won't get their butts sued. Sad the cops are more scared to get sued then to NOT protect our rights as Americans.

Most cops need to be REMOVED.

LostCoast · Jul 24, 2008

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yup and the first ones to be removed are the ones that came from around the Nation to remove the citizens guns in LA. after Katrina. mindless robots!

MudCamper · Jul 24, 2008

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Well, the LEO paranoia aside, that memo will do a lot of good. It is being circulated to many law enforcement agencies.

And look at their first "scenario":

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.

LEOs all over the state are now reading that."NOT a violation of PC 12025 or PC 12031." How awsome is that!

cato · Jul 24, 2008

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MudCamper wrote:

Well, the LEO paranoia aside, that memo will do a lot of good. It is being circulated to many law enforcement agencies.

And look at their first "scenario":

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.

LEOs all over the state are now reading that."NOT a violation of PC 12025 or PC 12031." How awesome is that!

I do call that a violation. The Statehas stopped a law abiding person for NO CRIME, seized an item of private property and "run" the serial number to see if it has been stolen ALL without PC that any crime has occurred.

I call that a violation of the 4th Amendment (and a violation of the 2nd Amendment once we get incorporation + a carry case)!

Are they going to stop me and run my Rolex or cell phoneto see if it is stolen or make me provethey aremine?

MudCamper · Jul 24, 2008

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Can noone see the forest through the trees? This is incredible progress! Sure, it's wrought with problems, like 4A violations. Hell, 12031 is both a 2A and 4A violation by itself. But there is no doubting that this is progress. Glass half full.

fresno-opencarry-now · Jul 24, 2008

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But don't confuse ACTUAL freedom which we are entitled to AND "better than it was".... We are entitled to MORE no matter how much so called "progress" is going on. I just hope it is not "progress" towards concealed weapons permits registered with this and that entity which it seems many THINK is what is wanted.

What I consider actual progress is getting rid of "victimless crimes" and b.s. "save the children" tactics that make people WANT to go down and get registered and fingerprinted and show CAUSE to be allowed to carry.

We should be able to carry what we want and when we want to without ANY hassle UNTIL we commit a crime THEN they should be able to do something.

I just see them making sure to put hefty "licensing" fees together for concealed and odds are open carry as well and many will eat it up as progress as well.

I see the half glass full but with a bit of reality backing it. Optimistic but realistic I guess. I just know they will only allow a right or freedom to be used ONCE they are able to figure a way to capitalize on it. Like a tax or SOMETHING to make sure you CAN and are ALLOWED enjoy a freedom you should be 100% entitled to in the first place.

MudCamper wrote:

Can noone see the forest through the trees? This is incredible progress! Sure, it's wrought with problems, like 4A violations. Hell, 12031 is both a 2A and 4A violation by itself. But there is no doubting that this is progress. Glass half full.

D* · Jul 25, 2008

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Well, as one who just found this site and appreciate all that has already been done, I see this as a glass-half-full thing. To 'Fresno-opencarry-now', I understand you argument. But as you live in Clovis which has the most oppressive police force I have ever had the displeasure to live under, I wish you luck in open carry there. I moved from Clovis to Fresno to get away from that gestapo-like torment.

fresno-opencarry-now · Jul 25, 2008

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I did that same thing when I was just out of high school and moved from clovis to fresno due to the same issue, however NOWADAYS it seems that clovis has treated me FAR BETTER than fresno p.d. has from then on. I think it really is hit and miss BUT both cities are NOT pro-citizen rights in the least.

I can see clovis being easier to accept oc than fresno though due to the larger gang problem in fresno. I can however see it being easier to get a concealed permit in fresno versus clovis due to that same gang problem SO who really knows.

My last incident with a cop was clovis p.d. who was able to get me into a dui without even being in the vehicle SO YES I do agree that clovis p.d. has their drawbacks as well BUT I have seen and heard of too many issues with Fresno p.d. to assume that clovis is really that much worse out of the two.

Either way, they BOTH need to enjoy seeing oc events in them whether that be fresno or clovis.

D* wrote:

Well, as one who just found this site and appreciate all that has already been done, I see this as a glass-half-full thing. To 'Fresno-opencarry-now', I understand you argument. But as you live in Clovis which has the most oppressive police force I have ever had the displeasure to live under, I wish you luck in open carry there. I moved from Clovis to Fresno to get away from that gestapo-like torment.

D* · Jul 25, 2008

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I graduated Clovis High in '91 and a couple of my friends from back then are on the Clovis force now. I agree that under Chief Dyer FPD has definately become a much different police force. It seems as if even the regular patrol officers have SWAT mentality. I guess they are just catching up to where Clovis was 10 years ago, LOL. On the bright side, almost everyone who has interacted with Sheriff Mims (Mimms??) has had a positive experience and she has been excelent on approving CCW's, which the last sheriff wasn't.

fresno-opencarry-now · Jul 25, 2008

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Agreed on mims (not sure of spelling either) my dad is actually getting his ccw right now and everything is going smoothly SO FAR.... I am still back and forth on getting a ccw because I do not agree with having to "apply" for a born in right to carry BUT I still would like to ccw AND oc depending on where I am and so on.

That swat mentality is def something going too far in our area, they try and blame it on gangs but really do random stops for no reason. I don't see Perea or Swearengin doing anything FOR our rights either because they are part of "progressiveness" in our area.

I better redirect back on topic though since we strayed a bit....

I want to use this memo and give it to fresno and clovis p.d., is that legal to do or will there be issues giving out an "internal memo"?

I might just hand out the stock "open carry" pamphlet to the local p.d. my thinking was to stand out there and hand them to the officers as they come out BUT odds are would get arrested for trespass or illegal vending or ...... lol

I think for those who are actually not going to oc while court cases are being worked out should maybe help hand out these flyers as well to local p.d., letters to the editor and gun shops.

I think this is something that even the local pd's are realizing that will NOT go away and should NOT go away anyways. I just hope they don't play the "SAve the children" card to try and edit the law to make it impossible for us to "qualify" for an open carry permit. That is the one thing that worries me, them trying to cash in on our rights with a "fee + license" to make those antigun wackos smile.

D* wrote:

I graduated Clovis High in '91 and a couple of my friends from back then are on the Clovis force now. I agree that under Chief Dyer FPD has definately become a much different police force. It seems as if even the regular patrol officers have SWAT mentality. I guess they are just catching up to where Clovis was 10 years ago, LOL. On the bright side, almost everyone who has interacted with Sheriff Mims (Mimms??) has had a positive experience and she has been excelent on approving CCW's, which the last sheriff wasn't.

D* · Jul 25, 2008

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After seeing the flyers and the memo that has been posted, i gave some serious thought over lunch to requesting a few minutes with Mims to go over the material. Since she is the most open to citizen carry of the local departments, maybe we can get a ruling at county sheriff level and then progress to individual cities within the county.

I would be careful about handing any flyers out after that fresno city decision that won't even let people sell newspapers on the corner for Kid's Day. Also, if you drop one of those flyers I have no doubt you would get hit for 'littering'.

I'm thinking Mims is the way to go, what is your thought?

fresno-opencarry-now · Jul 25, 2008

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She seems great SO FAR, I will see once my dad gets through the ccw process 100% then give it a go myself.

On the flyer handout, I would not be selling or peddling anything so nothing is being sold anyways so I am not too worried about it.

On the littering, I am not planning on doing that at all. I might carry a gun BUT still enjoy NOT trashing the area as well, I think that is actually a given for any law abiding citizen.

If someone drops one then I pick it up and yell at them for littering and make a citizens arrest of course... well odds are just the first part of that sentence would actually happen....

I want to get the flyers in businesses mainly because that is much more efficient because the pro gun guys and gals would go TO the range or gun shop and pick them up.

Handing them out to local officers is where I want to watch myself BUT doubt they would litter anyways and if they did then it would be on them or at least I would assume so.

Another way to do it would be to locate as many MAIN p.d. email addresses that allow the contact form and forward the link or the entire memo to them across the nation BUT who knows if that would be productive especially when we have people within the scene wanting us to FREEZE all oc'ing for one reason or another.

Either way, I liked the "internal memo" and hope to see more of those going around EDUCATING those who are SUPPOSED to be protecting and looking over us and our rights VERSUS trying to locate a reason to arrest us and make a profit off of us with fines, fees and jail time.

D* wrote:

After seeing the flyers and the memo that has been posted, i gave some serious thought over lunch to requesting a few minutes with Mims to go over the material. Since she is the most open to citizen carry of the local departments, maybe we can get a ruling at county sheriff level and then progress to individual cities within the county.

I would be careful about handing any flyers out after that fresno city decision that won't even let people sell newspapers on the corner for Kid's Day. Also, if you drop one of those flyers I have no doubt you would get hit for 'littering'.

I'm thinking Mims is the way to go, what is your thought?

cato · Jul 25, 2008

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MudCamper wrote:

Can noone see the forest through the trees? This is incredible progress! Sure, it's wrought with problems, like 4A violations. Hell, 12031 is both a 2A and 4A violation by itself. But there is no doubting that this is progress. Glass half full.

VERY TRUE!!!!! I'm glass half full too. It is our first Ca. "training memo" after all. Just felt like pointing out the few infested trees in our forest as I'm not a fan of running serial numbers absent PC for a theft investigation. Running serial numbers is a fishing expedition

demnogis · Jul 26, 2008

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I don't know... I wouldn't say progress. More like regression. We're going back to how it should be. How it was. Striking down these newer laws and getting them repealed or declared unconstitutional should be our goal.

By the way, does anyone know who the the sheriff is for Orange County? I'm going to try to get some face time with them, or at the least some sort of dialogue exchange on the subject. Once I know they're educated enough on the subject that I won't spend 8 hours in a holding cell and countless hours after the charges are dropped, I would like to save for a P220 to OC.

Sacramento Police Department Internal Memo on Unloaded Open Carry

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