Results 1 to 11 of 11

Thread: Open Carry-Client Alert-CA Police Officers Assoc.

  1. #1
    Regular Member
    Join Date
    Sep 2007
    Location
    , ,
    Posts
    6

    Post imported post

    This was posted on Calguns. http://www.calguns.net/calgunforum/s...d.php?t=135991

    It was sent out today by the CPOA to all its member agencies. I know it is not new information here, but it is good to see that the word is getting to the agencies. Now they have no excuse for not knowing about UOC.

    Client Alert -

    December 4, 2008 Brought to you by California Peace Officers' Association
    To All Members:

    From: Paul R. Coble, Esq., The Law Firm of Jones & Mayer





    CITIZEN CARRYING FIREARM IN PLAIN VIEW


    It has recently come to our attention from a variety of points around the State that officers are with increasing frequency encountering individuals carrying holstered pistols in plain view on a gun belt, but with ammunition close at hand either in bandolier fashion or a loaded magazine affixed to the gun belt. It is believed that these individuals are attempting to provoke a law enforcement response in order to test whether responding officers will take inappropriate action in the face of ostensibly lawful exercise of the right to bear arms.

    The history of Penal Code §12031 is helpful to an understanding of this issue. Prior to 1967, it was lawful in California for an adult, not otherwise prohibited from possessing a firearm, to carry a loaded firearm in plain view in public and in an incorporated city. Only the carrying of a concealed firearm was proscribed. However, early in May of 1967, a group of Black Panthers marched into the California legislature fully armed. Shocked that this conduct was not, at the time, unlawful, the Legislature enacted Penal Code §12031, effective July 28, 1967, thereafter proscribing the carrying of a loaded firearm in public, even if not concealed.

    With that background in mind, it is noted that Penal Code §12031 provides in pertinent part that:

    (a) (1) A person is guilty of carrying a loaded firearm when he or she carries a loaded firearm on his or her person or in a vehicle while in any public place or on any public street in an incorporated city or in any public place or on any public street in a prohibited area of unincorporated territory. (Emphasis added)

    Subdivision (g) of §12031 provides that:
    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. (Emphasis added)

    While Penal Code §12025 addresses carrying a concealed firearm, subdivision (f) of that statute expressly declares that “Firearms carried openly in belt holsters are not concealed within the meaning of this section.”Here, the situation presented is of an adult person carrying an unloaded firearm in plain view in public. While there is close at hand ammunition for said firearm, the ammunition is we are told not attached to the firearm. Even if the ammunition was, for instance, taped to the firearm, it is questionable whether this would constitute “loading” of the firearm in light of the holding in People v. Clark, (1996) 45 Cal. App. 4th 1147, 1152, where the court of appeal, dealing with the question of whether the defendant had committed the offense of possession of methamphetamine while armed with a loaded, operable firearm, held that:

    Under the commonly understood meaning of the term "loaded," a firearm is "loaded" when a shell or cartridge has been placed into a position from which it can be fired; the shotgun is not "loaded" if the shell or cartridge is stored elsewhere and not yet placed in a firing position. The shells here were placed in a separate storage compartment of the shotgun and were not yet "loaded" as the term is commonly understood. Even if Pen. Code, § 12031, subd. (g), was applicable, the Legislature's use of the phrase "attached in any manner" to the firearm was intended to encompass a situation where a shell or cartridge might be attached to a firearm or "loaded" for firing by some unconventional method. And, to the extent an ambiguity existed, the construction more favorable to defendant should be adopted.

    Anomalous as it may seem in this day and age, it is not, for the reasons aforesaid, unlawful for an adult who is not otherwise legally disabled from possession of a firearm to carry an unloaded firearm in plain view in public in an incorporated city. And the firearm does not become “loaded” for purposes of a violation of §12031 is there is a loaded magazine or other carry of ammunition close at hand.

    Furthermore, we doubt that a local ordinance could be enacted to close this gap by, for instance, making it a violation of a city’s municipal code to carry an unloaded and unconcealed firearm in public. In this regard, please note Article XI, §7 of the California Constitution, which provides that:

    A county or city may make and enforce within its limits all local, police, sanitary, and other ordinances and regulations not in conflict with general laws.

    The California Supreme Court has identified three types of conflict that cause preemption of local legislation: A conflict exists if the local legislation duplicates, contradicts, or enters an area fully occupied by general law, either expressly or by legislative implication. Local legislation is contradictory to general law when it is inimical thereto. A local ordinance is preempted by a state statute only to the extent that the two conflict. Action Apartment Assn., Inc. v. City of Santa Monica, (2007) 41 Cal. 4th 1232. For a local ordinance to proscribe that which is allowed under State law would perforce be to contradict state law. Furthermore, given the extent of State regulation of dangerous weapons, it would seem apparent that the State has “fully occupied” this area by its general laws.

    However, officers may rely upon §12031(e), which provides that:
    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.

    The end result of this analysis is to conclude that the conduct at issue is lawful, albeit alarming, and can only be regulates in a manner consistent with existing State law.

    HOW DOES THIS AFFECT YOUR AGENCY?
    Presentation of an individual walking down the street carrying a pistol in a holster raises obvious tactical issues, as well as safety concerns for both officers and the public. Other than to note these safety and tactical issues, we would urge that officers be alerted of this issue, that there is a possibility that they may encounter this behavior, and that they should be prepared to respond appropriately.

    Field personnel should be made aware of the current state of the law as set forth above and cautioned that this is not behavior warranting arrest, but that they are legally entitled under §12031(e) to demand inspection of any such firearms in order to ascertain that the weapon is unloaded. If the firearm is unloaded, it should be returned and the subject released to go about his/her lawful business. Of course, if the firearm is loaded – as defined above – then an arrest is appropriate. Any refusal to allow inspection of the firearm constitutes cause for immediate arrest for a violation of §12031.

    You are encouraged to consult with your designated legal counsel for further advice on this or any other matter. And as always, if you wish to discuss this in greater detail, please feel free to contact me at (714) 446-1400 or email me at
    prc@jones-mayer.com.


    2009 Legislative Update Manual

    Your source of immediate information on close to 100 bills signed into law last year which effect law enforcement. We’ve taken the guess work out of changes in statutory law. A special section on important court decisions is included. The manual cost is $17 plus tax & shipping cost. Please click here, and fax the completed form (with credit card payment) to 916.263.6090, or mail the completed form (with check) to 1455 Response Rd, Suite 190, Sacramento, CA 95815.
    Don't forget to...

    * See what's happening at the Capitol this week
    * Get involved in CPOA by joining a committee or get active in your region.
    * Stay up-to-date on California Law Enforcement with CPOA publications!
    * "Connect & Collaborate" at CPOA's Annual Training Conference, May 18-21, 2009, at Monterey Hyatt Regency Resort & Spa.



    ©2008 California Peace Officers' Association, 1455 Response Road, Suite 190, Sacramento, CA 95815. Unsubscribe from this newsletter.


  2. #2
    Newbie cato's Avatar
    Join Date
    Oct 2006
    Location
    California, USA
    Posts
    2,335

    Post imported post

    Lazarus Long wrote:
    it is good to see that the word is getting to the agencies.
    Kind words indeed consideringthe event and circle of acquaintances which brought you to this forum. Thanks for recognizing the efforts and sacrificeof ConditionThree and other newer members in a cause greater then their own self-interests!

    May we all work together toward victory in our own ways !

    cato

  3. #3
    Regular Member
    Join Date
    Oct 2008
    Location
    San Jose, California, USA
    Posts
    7

    Post imported post

    Great post!

    It's interesting just how many of our laws were enacted as a direct result of racist
    philosphies of our forefathers.
    Many of our draconian drug laws are also a direct result of this racially motivated fear. (See the history channel production, Hooked: the history if illegal drugs and how they got that way.)
    I see many parallels to our failed gun legislation and failed drug legislation. Illegal drugs are more populare than ever and a scourge on society, just like illegal arms. The laws designed to make us safer have done just the opposite.

    This re-inforces my beliefs that when people trade freedom for security they get neither. Continuing to do the same thing and expecting a different result is stupidity. You can lead a horse to water, but you can't make it drink.

    I still fail to see why a holstered side-arm is "alarming".

  4. #4
    State Researcher
    Join Date
    Jul 2007
    Location
    Stanislaus County, California, USA
    Posts
    2,586

    Post imported post

    I'm sorry to see that we continue to be painted as lawsuit shoppers engaging in 'alarming' activity. In fact, so far very few people have been 'alarmed' by open carry, and most of those few are LEOs.

    Another point of interest: to my knowledge, in CA not a single civil suit has resulted from the unlawful responses endured by activists so far. This is particularly interesting, since in every instance there has been a clear over-stepping of authority, from arrest to simply searching beyond the authority of 12031(g).

    The rest of the notice is accurate, and goes beyond what I had hoped to see pre-incorporation. We are making better progress than I thought. Mark this day as a milestone in our fight for our rights!
    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.

  5. #5
    Founder's Club Member MudCamper's Avatar
    Join Date
    Sep 2007
    Location
    Sebastopol, California, USA
    Posts
    710

    Post imported post

    Direct link to the original document version:

    http://www.hoffmang.com/firearms/car...t-12042008.pdf

    and here's the original of the RTTAC OC memo:

    http://www.hoffmang.com/firearms/car...2008-07-24.pdf





  6. #6
    Regular Member demnogis's Avatar
    Join Date
    Jul 2008
    Location
    Orange County, California, USA
    Posts
    912

    Post imported post

    I'm sorry to see that we continue to be painted as lawsuit shoppers engaging in 'alarming' activity. In fact, so far very few people have been 'alarmed' by open carry, and most of those few are LEOs.
    It has to be pushed this way and emphasized to Law Enforcement Agencies because they work similar to a business... Doing good nets them a bigger budget, wheras officer action that results in monetary liability needs to be prevented and stopped. If an mal-informed officer or an officer that is ignorant of the law takes inappropriate action it could potentially cost them millions, as with SFN's case in PA and the claimed damages of $1M.

    It's all about the moneys!

    Note: I'm not calling officers or agencies stupid, but possibly misinformed or uneducated on this one subject. Most all do not take any sort of criminal justice schooling, but only learn enough to enforce basic and the most offended laws.
    Gun control isn't about guns -- it is about control.

  7. #7
    Newbie cato's Avatar
    Join Date
    Oct 2006
    Location
    California, USA
    Posts
    2,335

    Post imported post

    btt

  8. #8
    Regular Member
    Join Date
    Mar 2008
    Location
    San Luis Obispo, California, USA
    Posts
    289

    Post imported post

    It is a bit pathetic that they keep passing around the original Sac-Po memo, apparently refusing to do their own research on the subject.

    But, at leas the word is getting around.

  9. #9
    Regular Member
    Join Date
    Mar 2008
    Location
    Washoe County, Nevada, USA
    Posts
    256

    Post imported post

    As they have stated they wish to be are our official representatives to the media, I think it might be useful for John Pierce and Mike Stollenwerk or OCDO's legal counsel to write a one-page letter to the police officer associations of each state where OC is legal and explain that the movement's overarching goal is to encourage the exercise of the 2A right as well education of other citizens to this right and absolutely not seeking to entrap LEOs, rather have positive interactions with them in the exercise of said rights so that other citizens exercising those rights may go about their business unmolested.

    I've been on the board for about a year but I don't know them, if anyone does I'd be interested to hear their thoughts on this approach. It would be great if "our" letter could trickle down to local PD and Sheriff departments the same way the association letter in CA has become distributed.

    Then again, maybe LEOs are cynical and want a pretext for an adversarial relationship with our community which, especially since it's absolutely untrue, would be really unfortunate.

  10. #10
    Founder's Club Member MudCamper's Avatar
    Join Date
    Sep 2007
    Location
    Sebastopol, California, USA
    Posts
    710

    Post imported post

    wayneco wrote:
    Then again, maybe LEOs are cynical and want a pretext for an adversarial relationship with our community which, especially since it's absolutely untrue, would be really unfortunate.
    Sadly, I think the only reason that most law enforcement agencies are paying any attention to this matter is out of fear of civil litigation.

  11. #11
    Regular Member
    Join Date
    Oct 2008
    Location
    NV
    Posts
    148

    Post imported post

    I'm so proud of you californians.

Posting Permissions

  • You may not post new threads
  • You may not post replies
  • You may not post attachments
  • You may not edit your posts
  •