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Thread: Los Angeles DA Issues Notice - OC IS LEGAL!!!!

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    LOS ANGELES COUNTY DISTRICT ATTORNEY’S OFFICE
    ONE MINUTE
    BRIEF

    NUMBER: 2008-22
    DATE: 12-23-08
    BY: Devallis Rutledge
    TOPIC: Crimes

    ISSUE: What investigative steps may law enforcement officers take when confronting a person who is carrying a firearm openly, in a belt holster?


    The Second Amendment protects a right to keep handguns in the home for self-defense, at least in federal jurisdictions. DC v. Heller (2008) 128 S.Ct. 2783. The Second Amendment does not preclude enforcement of statutes making it unlawful to carry concealed or loaded handguns in public, or for specified convicts to possess firearms. People v. Flores (2008) ___ Cal.App.4th ___ , DJDAR 18615, WL 5265343.

    California selectively prohibits possession of firearms. Prohibitions generally apply to drug addicts and those convicted of felonies and specified misdemeanors, or subject to probation orders or restraining orders that prohibit possession (PC §§ 12021, 12021.1), and those with histories of making deadly threats or receiving mental treatment for dangerous proclivities. (W&I §§ 8100, 8103). Minors may not generally possess concealable firearms. (PC § 12101)

    In addition, individuals generally may not possess firearms in certain places, such as public buildings (PC § 171b), airport and passenger vessel terminal "sterile areas" (PC § 171.5), or on the grounds or within 1000 feet of a public or private school, or on a college campus or property. (PC § 626.9) Possession during specified crimes increases the punishment. (Exs: PC §§ 12021.5, 12022, 12022.3, 12022.5, 12023 and 12024)

    It is generally unlawful to carry concealed on the person or in a vehicle a handgun or other firearm capable of being concealed on the person (whether it is loaded or not). (PC § 12025) This section is not violated by carrying an unloaded firearm openly, in abelt holster. (PC § 12025(f))

    It is also generally unlawful to carry a loaded firearm (whether concealed or not) in a public place in incorporated cities and in prohibited areas of unincorporated territory. (PC § 12031) Because "prohibited area" includes any place where it is unlawful to discharge a firearm, this includes all public streets. (PC § 374c)

    Peace officers are authorized to inspect any firearm carried in prohibited public areas to determine whether or not it is loaded; refusal to permit inspection is probable cause for arrest for violation of § 12031. (PC § 12031(e)) If the serial number of the weapon comes into plain view during inspection, it may be noted and run against data bases. Arizona v. Hicks (1987) 480 US 321, 324. The incidental detention of the armed individual justifies a demand for ID, allowing age verification and a data-base check for information about any disqualification to possess firearms. Hiibel v. Sixth Judicial District (2004) 542 US 177, 187.

    Per PC § 12031(g) (also for H&S § 11370.1—possession of certain drugs while armed with a loaded firearm, and for PC § 12035—criminal storage), a firearm is "loaded" if there is matching ammunition in or attached to the weapon in such a way that it can be fired. People v. Clark (1996) 45 Cal.App.4th 1147. Under this definition, neither § 12025 nor § 12031 is violated merely because a person openly carrying an unloaded firearm in a belt holster has matching ammunition on him, or close at hand. (Contrast: PC §§ 171c and 171d—"loaded" at the state capitol/offices and governor's mansion, and § 12023—"loaded" with intent to commit a felony, all of which define "loaded" as being in possession of the firearm and matching ammunition; F&G § 2006—"loaded" rifle or shotgun in a vehicle on public road, requires chambered shell).

    BOTTOM LINE: Police may stop a person who is openly carrying a firearm in a belt holster and may inspect to see if the firearm is loaded. Prompt incidental checks on the person and the weapon may provide probable cause for arrest; however, the person may not be arrested for violating PC § 12031 if ammunition is not in or attached to the weapon so as to allow it to be fired, even though the person may have access to matching ammunition.

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    Theseus wrote:
    refusal to permit inspection is probable cause for arrest for violation of § 12031. (PC § 12031(e)) (1)If the serial number of the weapon comes into plain view during inspection, it may be noted and run against data bases. Arizona v. Hicks (1987) 480 US 321, 324. (2)The incidental detention of the armed individual justifies a demand for ID, allowing age verification and a data-base check for information about any disqualification to possess firearms. Hiibel v. Sixth Judicial District (2004) 542 US 177, 187.

    (3)Under this definition, neither § 12025 nor § 12031 is violated merely because a person openly carrying an unloaded firearm in a belt holster has matching ammunition on him, or close at hand.
    1. Bad

    2. Very Bad

    3. Good?

    What a horrible mess.

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    We are looking into it, but the (1) is stretching it and is under debate elsewhere right now.

    (2) is only slightly under debate, because some (like me) argue that the PC does not permit "detention", merely "inspection" of the firearm....But this is where it gets fun...you don't have to give them Photo ID...Simply name, age and address. They will have to work for the rest.

    diesel556 wrote:
    Theseus wrote:
    refusal to permit inspection is probable cause for arrest for violation of § 12031. (PC § 12031(e)) (1)If the serial number of the weapon comes into plain view during inspection, it may be noted and run against data bases. Arizona v. Hicks (1987) 480 US 321, 324. (2)The incidental detention of the armed individual justifies a demand for ID, allowing age verification and a data-base check for information about any disqualification to possess firearms. Hiibel v. Sixth Judicial District (2004) 542 US 177, 187.

    (3)Under this definition, neither § 12025 nor § 12031 is violated merely because a person openly carrying an unloaded firearm in a belt holster has matching ammunition on him, or close at hand.
    1. Bad

    2. Very Bad

    3. Good?

    What a horrible mess.

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    Hmmm, what about a small piece of black tape over the serial number?

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    Theseus wrote:
    We are looking into it, but the (1) is stretching it and is under debate elsewhere right now.

    (2) is only slightly under debate, because some (like me) argue that the PC does not permit "detention", merely "inspection" of the firearm....But this is where it gets fun...you don't have to give them Photo ID...Simply name, age and address. They will have to work for the rest.
    That's good to hear. If they can randomly take down your serial # and name, that is practically giving them license for random gun registration. Granted you need be exercising your right to carry to fall victim.

    jwarren116 wrote:
    Hmmm, what about a small piece of black tape over the serial number?
    We discussed this in another thread. It's possible that doing so is the commission of felony (44 USC Section 922).

    Here is the link:

    http://opencarry.mywowbb.com/view_to...ck+tape+serial

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    Why would they need RANDOM registration when in California we have mandatory registration?

    They already know when they run my name that I have guns...It is not a secret to the government.

    Now, here is a letter I was thinking of sending to this lovely DA.


    As a member of a national organization that is dedicated to educating people about the legal ways to openly carry a firearm I was pleased to see another memo discussing the legalities of such behavior in California and the proper PC and case law being mentioned. I, and others are as well, also very grateful that you are not portraying our group or others like us as lawsuit seeking opportunists.

    We do wish to say that, the only desire to bring about lawsuits would be to educate law enforcement and DA’s like yourself to prevent further waste of your and our members valuable time. If the effort continues with memos like this, there should be no need to perform such lawsuits as the education is being done through the most desirable and cost effective for all involved.

    In this area, I hope that we can work together to educate and inform.

    Based on the fact that I myself have been detained and questioned in Los Angeles County for this very act I can tell you that, for the most part the departments followed your procedure to the letter. There have been some situations where I have been intimidated about the fact that I am obeying the law and with officers seeking to apply their own “interpretation” of the law.

    I can appreciate your and their intentions to keep the streets safe, but when an otherwise upstanding citizen is treated in the manner you suggest so that the police can “find” a reason to arrest you is a bit scary. No law abiding citizen should be subjected to such scrutiny SIMPLY because they are exercising their right to self defense in an area of the country where such is not illegal but simply a “sensitive” topic. We consider the “plain view” use to allow the running of the serials of the firearm and the “while we have you” approach to demand ID to conduct a wants & warrants check is questionable at best and hope that you can instead simply inform the officers of their authority to inspect. If it is determined we are not loaded they should send us on our way.

    I do thank you for your support thus far of our cause, as I am sure a DA would always support law abiding citizens making an effort to reduce crime and make their communities safer.



    diesel556 wrote:
    Theseus wrote:
    We are looking into it, but the (1) is stretching it and is under debate elsewhere right now.

    (2) is only slightly under debate, because some (like me) argue that the PC does not permit "detention", merely "inspection" of the firearm....But this is where it gets fun...you don't have to give them Photo ID...Simply name, age and address. They will have to work for the rest.
    That's good to hear. If they can randomly take down your serial # and name, that is practically giving them license for random gun registration. Granted you need be exercising your right to carry to fall victim.

    jwarren116 wrote:
    Hmmm, what about a small piece of black tape over the serial number?
    We discussed this in another thread. It's possible that doing so is the commission of felony (44 USC Section 922).

    Here is the link:

    http://opencarry.mywowbb.com/view_to...ck+tape+serial

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    I didn't realize that even private transfers require the use of a dealer in CA. I just learned something new today. I also assume that serial # and registration information is recorded by the state for these transactions?

    Your letter is very polite and complimentary, while at the same time making a request that he revisit a small portion of his memo.

    Might it help to send a modified version of the letter to your representative as well?

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    I will look even deeper into the electrical tape thought. . .

    It seems to me easy to argue intent. The intent of the laws was to prevent people from altering or changing serial numbers so that they could not be identified or that they would be confused with other serialized weapons. This means that, by applying electrical tape I have not changed the function of the serial, merely how "in plain sight" it might be.

    It could also be argued that the intention of the PC in the first place was not to allow such a search or detainment. It was, like any other situation, providing for the legal authority for them to inspect your weapon, and that the serial would not be in plain sight until such a demand for inspection is made. ...thus is entrapment and any attempt to obtain or run the serial without a warrant is illegal or inadmissible in court.

    IANAL...but some food for thought I guess.

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    Attached is the original memo.

    But the DA's memo is plainly WRONG in two respects re open carry.

    First, the DA cites to Hiibel to say that people lawfully stopped in area where openly carried guns cannot be loaded for inspection of guns to see if they are loaded can be required to produce ID and other personal information to determine if they are of age to possess the gun and not prohibited. WRONG - Hiibel only applies if a state statute requires a person to ID themselves in a legitimate Terry stop - a mere stop of a man with a gun to inspect the gun is not a Terry stop, nor does California even have a stop and ID law at all. Additionally, the fact that the state inspection statute is silent as to providing personal information strongly militates against the DA’s interpretation anyway. Finally, consider in Hiibel the S. Ct. said the ID can be satisfied by stating your name, and Kolender v. Lawson still bans states from requiring people to carry ID generally.

    Second, the DA states that all public roads are public areas where shooting is prohibited so no gun can be loaded. WRONG. The DA needs to familiarize himself with People v. Knight at http://caselaw.lp.findlaw.com/data2/californiastatecases/c045858.pdfwhere the California appeals court (citing to a previous AG opinion) said that, in an unincorporated area, and absent an explicit County ordinance against shooting in the land area where the road is situated, folks may openly carry loaded guns, including holstered handguns, and the police may not stop these open carriers to inspect their firearms and further that any evidence obtained as a result of such an unlawful stop shall be suppressed as a violation of the Fourth Amendment.

    Out of professional courtesy, I have a call in to the DA's office to get these items corrected - a press release will go out early this coming week regardless.

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    jwarren116 wrote:
    Hmmm, what about a small piece of black tape over the serial number?
    Exactly my thought. I figure that I have to protect the serial number from possible damage or scratches that might make it unreadable.

    If the officer pulls the tape off of the serial number without first getting a warrant, it violates the 4th amendment as the DA has said " if the serial number comes into plain view during inspection", not "if the officer is able to find the serial number by removing tape."

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    Decoligny wrote:
    jwarren116 wrote:
    Hmmm, what about a small piece of black tape over the serial number?
    Exactly my thought. I figure that I have to protect the serial number from possible damage or scratches that might make it unreadable.

    If the officer pulls the tape off of the serial number without first getting a warrant, it violates the 4th amendment as the DA has said " if the serial number comes into plain view during inspection", not "if the officer is able to find the serial number by removing tape."
    I think the inpsection protocol is questionable absent reasonable suspicion that the gun is loaded, but leaving that alone, under Hicks, I think you are right, that obscuring the SN with tape would, under Hicks, preclude the officer from removing it and looking at the SN - having said that, what would your remedy be for removing the tape unless you were in possession of a stolen gun? Probably at most a declaration and injunction against doing it again, and maybe very nominal damages .

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    This is one opinion by one DA. I'd like to see if the AG agrees. Scratch that... I don't give a damn what the AG says... let's just repeal the entire damned statute and have LOC.
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    Allow me to simplify the discussion. LAPD is allowed to inspect an open carriers holstered weapon. If it's loaded, that is illegal, correct? If that is true, why carry then? Seriously, what good is that? If by unloaded, one may have a full magazine, but not one in the chamber in a semi auto, that would be OK. What about our wheel gun carrying brethren? Please correct me if I'm not reading this accurately.

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    If I am correct, you can have magazines or speed loaders at the ready, you just cant have any ammo actually IN the gun, so you must draw, load, chamber, then shoot.

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    Thebrief needs to be completely done away with and removed from the BOOKS-it is UNCONSTITUTIONAL in content. Typical ofCALIFORNIA. If CALIFORNIA does not keep the CONSTITUTION of the UNITED STATES-then NO government aid of any sort should be given to them.

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    In addition, individuals generally may not possess firearms in certain places, such as public buildings (PC § 171b), airport and passenger vessel terminal "sterile areas" (PC § 171.5), or on the grounds or within 1000 feet of a public or private school, or on a college campus or property. (PC § 626.9) Possession during specified crimes increases the punishment. (Exs: PC §§ 12021.5, 12022, 12022.3, 12022.5, 12023 and 12024
    This is also not true since only concealable firearms apply to the 626.9 restriction of not being within 1000' of a K-12 school. Long guns are not concealable and are okay to have within 1000'.

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    baseballguy2001 wrote:
    Allow me to simplify the discussion. LAPD is allowed to inspect an open carriers holstered weapon. If it's loaded, that is illegal, correct? If that is true, why carry then? Seriously, what good is that? If by unloaded, one may have a full magazine, but not one in the chamber in a semi auto, that would be OK. What about our wheel gun carrying brethren? Please correct me if I'm not reading this accurately.

    Having a magazine with ammo in it inserted into the firearm makes it loaded. Loaded carry is illegal.

    However, California Unloaded Open Carry is what we are left with, our only choice, legally.

    A belt holstered semi-auto, with a full magazine in a belt magazine holder, is however totally legal.

    As far as what good is it. I for one can have my gun in battery in about 1.5 seconds.

    Ask anyone in any of the mall shootings, or anyone from Virginia Tech if they wouldn't have preferred having an unloaded gun with ammo at the ready instead of having a gun at home in a safe.

    It is not the best option that we have, but it is the only legal option that we currently have.

    There are lawsuits in the courts right now that will impact the laws that are on the books in California. But until they are won, and the subsequent legal battles fought to get these laws thrown out, we are obliged to operate within the bounds of the law.


    As far as wheel guns go, you can carry your ammo pretty much however you like, with the exception of in the gun. You can have the gun in a belt holster, and speed loaders in holders right next to it.You can have a speedloader in your pocket, or just a pocketful of ammo if you prefer. Your choice.

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    Are there lawsthat say when you are allowed to load your gun in the areas it is otherwise unlawful to have them loaded? As an example, when in fear of grevous bodily harm or loss of life. If not, the fact that you have ammo at the ready is a moot point as you are not allowed to carry a loaded firearm in these areas.

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    sccrref wrote:
    Are there lawsthat say when you are allowed to load your gun in the areas it is otherwise unlawful to have them loaded? As an example, when in fear of grevous bodily harm or loss of life. If not, the fact that you have ammo at the ready is a moot point as you are not allowed to carry a loaded firearm in these areas.

    12031 (k) Nothing in this section is intended to preclude the carrying of a loaded firearm by any person while engaged in the act of making or attempting to make a lawful arrest.


    If you are the victim of an assault, or you witness someone committing any criminal act, and I would believe that any time that you would be justified in using deadly force, you would be witnessing some sort of criminal activity and you could legally load up in the "attempt" to make a citizen's arrest.

    I am sure there are other portions of the Penal Code and Case Law that would mitigate any punishment you would receive for carrying a loaded firearm in a situation where your life or the life of another was in danger. Besides, when your life is in danger, the letter of the law is the last thing you are going to be worrying about.

    When it comes down to brass tacks, I would rather spend a shorttime in jail than along time in a small box in a cold hole in the ground.






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    I really don't understand their wording, A device that can't be fired isn't a firearm, it is simply a lump of metal and/or plastic with working parts. I really thought the Heller decision would the final arbiter of this question. The Supreme Court says it's OK, it must be OK. Since when do the states get to override a Supreme Court decision? Or for that matter any local jurisdiction? It really has come time for the rule of law to apply equally to all citizens (hello..... "Vermont").:celebrate

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    Tex4OC wrote:
    I really don't understand their wording, A device that can't be fired isn't a firearm, it is simply a lump of metal and/or plastic with working parts. I really thought the Heller decision would the final arbiter of this question. The Supreme Court says it's OK, it must be OK. Since when do the states get to override a Supreme Court decision? Or for that matter any local jurisdiction? It really has come time for the rule of law to apply equally to all citizens (hello..... "Vermont").:celebrate
    The States get to override the Supreme Court's Heller dicisionuntil the 2nd Amendment receives incorporation under the 14th Amendment at the State level. Currently that hasn't happened. The 2nd Amendment currently is only legally bindingupon the Federal Government.

    http://en.wikipedia.org/wiki/Incorpo...ill_of_Rights)

    There are currently cases in progress that when won, will incorporate the 2nd Amendment in their respective jurisdicitions (example: Nordyke v. Kings County, 9th Circuit Court).

    http://wiki.calgunsfoundation.org/in...ordyke_v._King

    When the 2nd is incorporated it then becomes a different fight. Each unconstitutional law on the books will then have to be broken, and challenged in court as unconstitutional.

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    Decoligny wrote:
    There are currently cases in progress that when won, will incorporate the 2nd Amendment in their respective jurisdicitions (example: Nordyke v. Kings County, 9th Circuit Court).

    http://wiki.calgunsfoundation.org/in...ordyke_v._King

    When the 2nd is incorporated it then becomes a different fight. Each unconstitutional law on the books will then have to be broken, and challenged in court as unconstitutional.
    Some of the Nordyke briefs linked near the end of this article are excellent reads. Just as with most cases, the opposition uses faulty, irrelevant, even deceptive arguments to try to make their points. It makes you wonder what these lawyers were doing during their history classes.

    According to the article, the oral arguments for the appeal are January 15, 2009.

    TFred

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    Decoligny wrote:
    The States get to override the Supreme Court's Heller dicisionuntil the 2nd Amendment receives incorporation under the 14th Amendment at the State level. . . . When the 2nd is incorporated it then becomes a different fight. Each unconstitutional law on the books will then have to be broken, and challenged in court as unconstitutional.
    Just remember that even if the 9th Cir. panel incorporates, that does NOT bind the state courts of states within the 9th Cir. on the federal question of whether the Second Amendment limits state power.

    So when somebody faces a state judge on a criminal charge, that judge is free to disregard any incorporation holding in Nordyke, should it be favorable to us. And the only federal court which may review a state court holdingon a federal question is the United States Supreme Court.



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    I don't speak legalese very well, but at the point the Supreme hands down a decision on Constitutional law, it should negate any law that contradicts it, or what good is the Supreme Court? How can the individual states not be bound by the laws of the country that allow it to exist in our union?

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    Tex4OC wrote:
    I don't speak legalese very well, but at the point the Supreme hands down a decision on Constitutional law, it should negate any law that contradicts it, or what good is the Supreme Court? How can the individual states not be bound by the laws of the country that allow it to exist in our union?
    I'm going to go out on a limb here. I'm just now trying to learn all this stuff, it should really be taught in school but.... What I think is that it is because we are a republic. Basically individual states that belong to a union to work together for the common good etc.... I see it this way, when the federal government wanted the drinking age raised to 21 they could have just passed a law then the states would have to follow, But they can't, instead they had to hold federal dollars for highway maintenance and improvements over the states heads' to get them to change the states' law.

    If I'm way off base here let me knowso I can go back to do some more schoolin'

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