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

imported post

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

Click to expand...

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/Incorporation_(Bill_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/index.php/Nordyke_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.

imported post

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/index.php/Nordyke_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.

Click to expand...

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

imported post

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.

Click to expand...

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.

imported post

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?

imported post

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?

Click to expand...

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'

imported post

Mike wrote:

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.

Click to expand...

early is up tomorrow.

imported post

Mike wrote:

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.

Click to expand...

People v. Knight did indeed bring up the specific wording in 12031 "any public street in a prohibited area" but they focused on "prohibited area" not the public street portion.

The prosecutor at the time failed tobring into account that by the definition of prohibited area in 12031 (f) "As used in this section, "prohibited area" means any place where it is unlawful to discharge a weapon", all public streets are prohibited areasdue to California Penal Code 374c stating clearly "Every person who shoots any firearm from or upon a public road or highway is guilty of a misdemeanor."

This makes ever public road or highway a prohibited area and as such it is a 12031 violation to carry a loaded firearm on any public road or highway.

This one section of case law does not invalidate 374c, it only shows that the DA in the People v. Knight case wasn'tfully aware of the gun laws in California.

If he had brought 374c into the argument the case would have most likely gone against Knight.

imported post

Decoligny wrote:

Mike wrote:

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.

Click to expand...

People v. Knight did indeed bring up the specific wording in 12031 "any public street in a prohibited area" but they focused on "prohibited area" not the public street portion.

The prosecutor at the time failed tobring into account that by the definition of prohibited area in 12031 (f) "As used in this section, "prohibited area" means any place where it is unlawful to discharge a weapon", all public streets are prohibited areasdue to California Penal Code 374c stating clearly "Every person who shoots any firearm from or upon a public road or highway is guilty of a misdemeanor."

This makes ever public road or highway a prohibited area and as such it is a 12031 violation to carry a loaded firearm on any public road or highway.

This one section of case law does not invalidate 374c, it only shows that the DA in the People v. Knight case wasn'tfully aware of the gun laws in California.

If he had brought 374c into the argument the case would have most likely gone against Knight.

Click to expand...

Uh, no, Knight is law in California - you misunderstand how law is made - judges make it - and the legislature tried and failed to reverse Knight. Trial courts and future appeals court panels are bound by Knight - it does not matter what arguments are raised.

imported post

Mike and I seem to disagree on the finer points of People v. Knight. As we each believe our point of view to be accurate, I will simply say this. There aretwo possibilities here as to course of action:

1. If my interpretation is INCORRECT, and is acted upon as correct, nobody gets arrested for violating 12031 via 374c.

2. If Mike's interpretation is INCORRECT, and is acted upon as correct, whoever acts upon it risks possible felony arrest for violating 12031 via 374c making public roads and highways "prohibited areas" under 12031.

I for one am not willing to risk becoming the test case on this one.

imported post

Decoligny wrote:

Mike and I seem to disagree on the finer points of People v. Knight.

Click to expand...

No, you simply err in asserting that trial courts and future appeals court panels arenot bound by Knight's holdings.

Following your logic, it would be safe to say that a future federal trial court would ignore Heller re constitutional scrutiny of a a federal law because DC's attorney failed to argue some critical historical perspective necessary to construe the Second Amendment. But it does not work that way - even if Heller is plainly wrong, federal courts are bound. Further, when an appeals courtpanel decides a case, the holdings are binding on future panels, even if that holding of the previous panel was plainly wrong at the time it was decided. See Parker (adhering to previous panel decision which incorrectly maintainedheightened standing scrutiny after Lujan was decided). Only the S. Ct. or an en banc DC Cir. panel can reverse the bad law in the DC Cir.

Regardless, People v. Knight, citing to a Calif. AG Opinionwith the same view, provides a Mistake of Law defense to any charge should the Knight panel be overruled by an en banc appeals court or Calif. S. Ct.

imported post

I know this may be a really stupid question.
I live in Georgia (originally from the UK), I have a license to carry (concealed / open).
Now, we all carry because we want to defend ourselves right ? So it seems kinda dumb for the state of California to allow people to carry a gun, but not have it loaded?
you have a criminal with a concealed loaded gun, he / she see's some one carrying a gun and thus knows that the weapon is un-loaded and in a confrontation the legal carrier will need a minimum of two / three seconds to draw the sidearm, grab the mag, load the mag in to the pistol, rack the slide, oh and shoot. oh, you're dead too.

did the Californian law makers do too many happy drugs in the 60's ??

imported post

Mike wrote:

Decoligny wrote:

Mike and I seem to disagree on the finer points of People v. Knight.

Click to expand...

No, you simply err in asserting that trial courts and future appeals court panels arenot bound by Knight's holdings.

Following your logic, it would be safe to say that a future federal trial court would ignore Heller re constitutional scrutiny of a a federal law because DC's attorney failed to argue some critical historical perspective necessary to construe the Second Amendment. But it does not work that way - even if Heller is plainly wrong, federal courts are bound. Further, when an appeals courtpanel decides a case, the holdings are binding on future panels, even if that holding of the previous panel was plainly wrong at the time it was decided. See Parker (adhering to previous panel decision which incorrectly maintainedheightened standing scrutiny after Lujan was decided). Only the S. Ct. or an en banc DC Cir. panel can reverse the bad law in the DC Cir.

Regardless, People v. Knight, citing to a Calif. AG Opinionwith the same view, provides a Mistake of Law defense to any charge should the Knight panel be overruled by an en banc appeals court or Calif. S. Ct.

Click to expand...

I do not assert that trial courts are not bound by applicable case law, nor do I assert that they aren't bound by the holdings in People v. Knight. I just don't think the holdings apply to Loaded Open Carry on a public road or highway, and that the LA County DA got it right on that point.

I think we are simply at a disconnect as to what the holdings of People v. Knight actually are,as I see nowhere in this case where is implies that it is NOT ILLEGAL to have a loaded firearm on a public road or highway in unicorporated territory.

In the People v. Knight case the courts holdings as I see them were as follows:

1. The trial court erroneously adopted the prosecutor’s position that section 12031 prohibits carrying a loaded weapon in "any public place".

2.The above “mistake of law” did not justify the arrest and subsequent search and seizure.

FROM PAGE 10 of PEOPLE V. KNIGHT


[align=left]Rather than rewrite the statute in any way, we adopt the interpretation that harmonizes the repeated clause “or in any public place or on any public street,” without doing violence to the language of the statute itself or rendering portions of the language mere surplusage.[/align]
Applying this principle to give meaning to each word and phrase in the statute, section 12031, subdivision (a)(1), prohibits carrying a loaded firearm on one’s person or in a vehicle:

(1) while in any public place in an incorporated city;

(2) while on any public street in an incorporated city;

(3) while in any public place in a prohibited area of unincorporated territory; or

(4) while on any public street in a prohibited area of unincorporated territory.[/b]3

With this construction of the applicable law in mind, we conclude that the prosecution did not meet its burden of justification at the suppression hearing. The prosecution did not establish that defendant’s arrest was lawful (i.e., that the officers had reasonable cause to believe defendant had committed a felony), as it did not establish the encounter occurred in an incorporated city or a prohibited area of an unincorporated.

3This construction is consistent with an opinion of the Attorney General in 1968, shortly after the enactment of section 12031. The Attorney General concluded “section 12031 does not prohibit the carrying of a rifle or shotgun with unexpended shells or cartridges in the magazine on a public road in an unincorporated area where there are no local ordinances or other laws or regulations prohibiting the discharge of firearms.”[/b] (emphasis mine)[/b] (51 Ops.Cal.Atty.Gen. 197 (1968).)

My Comments: This portion of the Appellate Court’s holding simply states that it agrees with the AG opinion. The AG opinion states that 12031 does not prohibit the carrying of a rifle or shotgun with unexpended shells or cartridges in the magazine on a public road in an unincorporated area where there are no local ordinances or other laws or regulations prohibiting the discharge of firearms. CA Penal Code 374c clearly falls into the category of “other laws or regulation prohibiting the discharge of firearms",specifically covering the public road or highway upon which Knight’s vehicle was parked when he was arrested.

FROM PAGE 12 OF PEOPLE V. KNIGHT:

Nor was there any evidence that the officers were under a reasonable mistake of fact that the place or street was in an incorporated city or a prohibited area of an unincorporated territory.4

Accordingly, the trial court erred in denying defendant’s motion to suppress directed at the evidence derived from the search incident to his arrest. (See People v. Coe (1991) 228 Cal.App.3d 526, 531; see also Wong Sun v. United States (1963) 371 U.S. 471, 487-488 [9 L.Ed.2d 441, 455].) Defendant must be allowed the opportunity to withdraw his plea and secure suppression of the evidence as his counsel requested.

DISPOSITION

The judgment is reversed and the cause remanded to the trial court. Upon motion by defendant within 30 days of the date the remittitur is filed in the superior court, the court shall vacate defendant’s no contest plea. The court is then directed to suppress the evidence uncovered as a result of defendant’s arrest.

4 The People do not contend that the officers’ mistake of law may justify the arrest and subsequent search. “[T]here is no good faith exception to the exclusionary rule for police who enforce a legal standard that does not exist.” (People v. White (2003) 107 Cal.App.4th 636, 644.) If the defendant has not actually broken a law, the officer’s mistaken belief that there has been a violation does not provide the required objective facts leading to a reasonable belief. (See In re Justin K. (2002) 98 Cal.App.4th 695, 698-700 and cases cited therein.)

My Comments: This portion of the Appellate Court’s holding simply states that at the suppression hearing, there was no evidence presented that the officers were under a reasonable mistake of fact that the place or street was in an incorporated city or a prohibited area of an unincorporated territory.

They did not base the arrest on the mistaken assumption that they were in an incorporated city.

They did not base the arrest on the assumption that they were in a prohibited area of unincorporated territory.

They based the arrest on the mistake of law that a loaded firearm was illegal in “any public place”. This is a legal standard that does not exist.

The officer’s mistaken belief that a loaded firearm was illegal in "any public place" does not provide the required objective facts leading to a reasonable belief.

If an officer bases a future arrest on the correct assumption that someone is in a prohibited area of unincorporated territory under 12031 per 374c, due to the fact that their vehicle was on a public road or highway, this portion of case law would not be applicable and ismoot because there isNO mistake of law.

If I am totally missing something in my reading of Knight, please let me know what it is, and where it says it. Telling me I am wrong is not the same as showing me I am wrong. If I am wrong please show me where. It is not a case ofhard-headedness on my part about "case law doesn't apply". I truly am trying my best to read this and understand what it is saying.

imported post

Would one of you legal scholars explain why the "void for vagueness" doctrine doesn't apply here?

imported post

mark edward marchiafava wrote:

Would one of you legal scholars explain why the "void for vagueness" doctrine doesn't apply here?

Click to expand...

If you are referring to 12031 it is not that vague at all.

1. You can't carry a loaded firearm in any incorporated city.

2. You can't carry a loaded firearm in any prohibited area of unincorporated territory.

3. "Prohibited area" is anywhere where it is illegal to discharge a firearm.

It is #3 that getsconfusing. A lot of peoplesay you can't carry loaded within a certain distance of buildings (per F&G rules) well, that only applies "when hunting". Then you get 374c which makes it illegal to discharge a firearm from any public road or highway. Then you have varying County ordinances that make certain areas "no shooting" areas. The hard part is knowing exactly where you are and whether or not there is a local/state/federal law/regulation/ordinance against discharging a gun.

It is not really vague, it just takes a lot of indepth research to know what areas are "prohibited areas".

imported post

OK, 12031 MUST be repealed... for the sake of not rehashing this argument every couple weeks...

FFS, just agree to disagree! :banghead:

imported post

CA_Libertarian wrote:

OK, 12031 MUST be repealed... for the sake of not rehashing this argument every couple weeks...

FFS, just agree to disagree! :banghead:

Click to expand...

With Mike about to send out a press release, I thought it would be prudent to explore this particular aspect of the DA's memo.

Mike disagreed with the DA memo on two points. The first I agree with Mike on, the second I agree with how the DA interprets it.

imported post

If numerous persons of reasonable intelligence can read the same "law" and have such ongoing discussions as to just what it means/how it is applied, certainly that is what the term "void for vagueness" was intended to address.

imported post

A Ruger P-series, with the S/N on the side of the gripe, with a Hogue Hand-all added, enjoys a nicely hidden S/N that takes some work to uncover. No way could it be "accidentally" seen during an "inspection".

imported post

Decoligny wrote:

CA_Libertarian wrote:

OK, 12031 MUST be repealed... for the sake of not rehashing this argument every couple weeks...

FFS, just agree to disagree! :banghead:

Click to expand...

With Mike about to send out a press release, I thought it would be prudent to explore this particular aspect of the DA's memo.

Mike disagreed with the DA memo on two points. The first I agree with Mike on, the second I agree with how the DA interprets it.

Click to expand...

Well, like the first 20 times, Mike's opinion was not swayed. I'm still on the fence on this one myself...

On the one hand, the court and AG at the time of the case agreed. The court should not overturn Knight, even now, as that would render part of the wording of 12031 as 'surplusage' as ALL public roads are prohibited. (You don't need to distinguish between roads in prohibited areas if they are prohibited areas themselves.)

On the other hand, 374c does plainly make it unlawful do discharge a firearm from or across a public road. And in the ruling, the court even states that the prosecution failed to present evidence proving the area was a prohibited one - possibly hinting that this is all that is needed to win the case.

So, either way some of the wording of 12031 is surplusage. Technically, the court would be wrong to rule either way on this case, and would have to find that 12031 is null and void as it deprives us of due process since it contradicts itself and renders itself surplusage... right?

So, back to my original point: I don't think the debate is fruitful. We should make a thread that has the debate laid out. Then any time this subject comes up you could just post links to that thread and save us all from having to read the epic posts.

imported post

CA_Libertarian wrote:

Decoligny wrote:

CA_Libertarian wrote:

OK, 12031 MUST be repealed... for the sake of not rehashing this argument every couple weeks...

FFS, just agree to disagree! :banghead:

Click to expand...

With Mike about to send out a press release, I thought it would be prudent to explore this particular aspect of the DA's memo.

Mike disagreed with the DA memo on two points. The first I agree with Mike on, the second I agree with how the DA interprets it.

Click to expand...

Well, like the first 20 times, Mike's opinion was not swayed. I'm still on the fence on this one myself...

On the one hand, the court and AG at the time of the case agreed. The court should not overturn Knight, even now, as that would render part of the wording of 12031 as 'surplusage' as ALL public roads are prohibited. (You don't need to distinguish between roads in prohibited areas if they are prohibited areas themselves.)

On the other hand, 374c does plainly make it unlawful do discharge a firearm from or across a public road. And in the ruling, the court even states that the prosecution failed to present evidence proving the area was a prohibited one - possibly hinting that this is all that is needed to win the case.

So, either way some of the wording of 12031 is surplusage. Technically, the court would be wrong to rule either way on this case, and would have to find that 12031 is null and void as it deprives us of due process since it contradicts itself and renders itself surplusage... right?

So, back to my original point: I don't think the debate is fruitful. We should make a thread that has the debate laid out. Then any time this subject comes up you could just post links to that thread and save us all from having to read the epic posts.

Click to expand...

While I understand what you are saying about issues being hashed over time and again, I for one think it can be a good thing.

If each "discussion" was limited to only a fewtimes around, and then due to its having been alreadyaddressed it was then relagated to a thread that everyone was directed to each time the subject was brought up, this would soon cease tobe a forum, it would after a while become merely a reference library.

I know of several time, and several different individuals (new to the forum) who have learned a great deal from subjects being brought up and rehashed, that have been discussed dozens of times. The key issue is, it was the first time that they saw the subject discussed, and it raised their awareness of an issue, sometimes from the point of them not being aware that something was legal, or illegal. It has even sometimes change some peoples minds after hearing an issue argued 10 different ways, they finally hear it put one way that throws the switch and they go "Ah Ha, Now I see what you have been trying to say!"

Oft times someone will be put off by being told "that's been discussed before, look here" and will see it as a slight, kind of like "What's the matter with you, don't you know what the search button is for?"

But, as with everything I post here, it is only my humble (occasionally not so humble) opinion.

HAPPY NEW YEAR TO ALL.