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Thread: Section 12040 (masked while carrying)

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    Code:
    CPC 12040.  (a) A person commits criminal possession of a firearm when
    he or she carries a firearm in a public place or on any public street
    while masked so as to hide his or her identity.
    
    Am I correct in interpreting this to mean that nobody can carry a firearm locked and unloaded in a case while wearing a mask? Or does it have to be loaded or concealed in order for this to apply?
    
    What about when wearing a full-face motorcycle helmet - even when the purpose is not to "hide his or her identity"? Is an "intent to hide identity" necessary in order to be convicted under this law?

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    Intent or mens rea is at the core of criminal law and can only be decided by the trier of fact, the judge/jury. We may protest our innocence of criminal intent but until standing is acquired to submit to a jurist then the issue is moot.

    If you have been charged so then go to trial.

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    That's kind of what I figured. It would be silly to claim that someone lawfully carrying on their motorcycle intends to hide their face by wearing a motorcycle helmet, assuming no crime is being committed.

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    Intent is not an element of this crime. If the full helmet or mask or anything else, masks your identity and you are in possession of a firearm (OC/CC loaded or not) I'd say the elements have been met.

    Unfortunitly for MC riders,this is a very broad law without exemptions (except cops and a few others) so skull cap or helmets without face protection would help to not violate this misdemeanor section.

    12040. (a) A person commits criminal possession of a firearm when
    he or she carries a firearm in a public place or on any public street
    while masked so as to hide his or her identity.
    (b) Criminal possession of a firearm is punishable by imprisonment
    in the state prison or by imprisonment in a county jail not to
    exceed one year.
    (c) Subdivision (a) shall not apply to the following:
    (1) A peace officer who is in the performance of his or her
    duties.
    (2) Full-time paid peace officers of other states and the federal
    government who are carrying out official duties while in this state.

    (3) Any person summoned by any of the officers enumerated in
    paragraph (1) or (2) to assist in making arrests or preserving the
    peace while he or she is actually engaged in assisting that officer.

    (4) The possession of an unloaded firearm or a firearm loaded with
    blank ammunition by an authorized participant in, or while
    rehearsing for, a motion picture, television, video production,
    entertainment event, entertainment activity, or lawfully organized
    and conducted activity when the participant lawfully uses the firearm
    as part of that production, event, or activity.
    (5) The possession of a firearm by a licensed hunter while
    actually engaged in lawful hunting, or while going directly to or
    returning directly from the hunting expedition.


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    Campaign Veteran marshaul's Avatar
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    Then, even folks with a LTC concealed can't CC on a motorcycle, unless perhaps they have a totally clear faceplate. Is that correct?

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    It seems that the lawmaker added "so as to hide his or her identity" to the law to make intent a necessary part of the crime. At least, that's what the full-face-helmet-wearing-motorcyclist inside me says.

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    Newbie cato's Avatar
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    Here is topraying that the court thinks like us!

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    marshaul wrote:
    Then, even folks with a LTC concealed can't CC on a motorcycle, unless perhaps they have a totally clear faceplate. Is that correct?
    Actually, if wearing a full-face helmet = masked, it looks like a motorcyclist can't carry at all whether concealed, locked in a case, loaded, unloaded, open, with or without ccw.

    I'm going to contact my legislators and try to get an amendment. Something along the lines of "For the purposes of this section, a motorcyclist wearing a full-face motorcycle helmet is not considered masked."

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    So, let's say you were to somehow paint your picture on the front of the helmet without obscuring your view (like the city buses that have painted windows you can still see out of). Your identity would no longer be obscured... problem solved!
    Participant in the Free State Project - "Liberty in Our Lifetime" - www.freestateproject.org
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    Or maybe something like this?


    :celebrate
    (Valentino Rossi)

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    cato wrote:
    Intent is not an element of this crime.

    12040. (a) A person commits criminal possession of a firearm when
    he or she carries a firearm in a public place or on any public street
    while masked so as to hide his or her identity.
    Isn't that intent, "so as to"?

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    That was how I read it, but IANAL.

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