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Thread: Oceanside Trianing Memo

  1. #1
    Regular Member Decoligny's Avatar
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    http://www.hoffmang.com/firearms/car...2009-03-12.pdf

    Look like Oceanside has joined the ranks of San Diego, Los Angeles, Sacramento, and the other agencies that have put out training memos.

    Looks pretty good with the exception ofthe PC 12026.1(a)(1) section where they make it look like the only way to lawfully transport a concealable firearm is in a locked container or in the trunk.

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    :celebrate:Sniffle:: a tear of joy ::i think ill leave the tear there as a reminder:::celebrate

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    That was excellent, particularly the clear direction to end the inspection after determining the weapon is not loaded and to NOT extend the inspection to look at registration etc. absent Reasonable Suspicion of some other crime.

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    So much for the thrill of the threat tomorrow.... Probably makes the wife happy though.

    I got a dirty look when I sent her the Lawyers information... Just in case :-)


  5. #5
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    I think this may be the best memo yet. I believe it covers more penal code and case law than any of the other memos.

    Most notable (to me, at least) is the lack of a direct reference to us as being lawsuit shoppers. Perhaps the lack of civil suits - despite a dozen or so situations that warrant one - is being recognized.

    Kudos to the Oceanside activists. Another milestone of progress has been reached due to your hard work and courage.
    Participant in the Free State Project - "Liberty in Our Lifetime" - www.freestateproject.org
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    CA_Libertarian wrote:
    I think this may be the best memo yet. I believe it covers more penal code and case law than any of the other memos.

    Most notable (to me, at least) is the lack of a direct reference to us as being lawsuit shoppers. Perhaps the lack of civil suits - despite a dozen or so situations that warrant one - is being recognized.

    Kudos to the Oceanside activists. Another milestone of progress has been reached due to your hard work and courage.
    wow, I like this one as well and agree this is the best one yet. I like the fact it says CLEARLY "to end the contact right there" at least to that extent once the weapon has been deemed unloaded...I am very happy about this as well...

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    I wonder if this will affect the case against Barker. The Marine who was arrested for open carry on the 4th of July.
    Wasn't that in Oceanside?

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    flintlock tom wrote:
    I wonder if this will affect the case against Barker. The Marine who was arrested for open carry on the 4th of July.
    Wasn't that in Oceanside?
    Affirmative.
    New to OPEN CARRY in California? Click and read this first...

    NA MALE SUBJ ON FOOT, LS NB 3 AGO HAD A HOLSTERED HANDGUN ON HIS RIGHT HIP. WAS NOT BRANDISHING THE WEAPON, BUT RP FOUND SUSPICIOUS.
    CL SUBJ IN COMPLIANCE WITH LAW


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    Sean and I were the only two people to show up at the Oceanside OC event, which was canceled at the last moment due in part to my own input in the message threads. you see, I have lived in Oceanside, and I know about the OPD. In a word, they are "unpredictable." They seem to enforce laws using a make-it-up-as-you-go-along tactic, meaning that in the morning the law can mean one thing to the officer(s) on duty, and in the afternoon, the same law can mean something completely different when other officers begin their shift. All backed by the county commissioners and judges who RARELY rule that OPD could have done anything wrong.

    Anyway, Yes, "Bobbarker" is the marine who was arrested on the 4th of July. The arrogant SOB officer who had to be told by his partner that the rounds bobbarker had in his DETACHED magazine were practice rounds, not "armor piercing bullets" like the over-zealous arresting officer originally ass-u-med.

    Even though the weapon was NOT loaded, the officer told him that he was carrying a loaded weapon and arrested him for carrying a loaded weapon, because there were bullets in the magazine on the other side of his belt that could be fired if the magazine was inserted. There is more to the case, and it is not over yet. The DA dropped the case, but the Oceanside city atty. picked it up, just to ***k with him and force him to let the clock run out before his weapon is returned to him, IF it is returned at all. (I doubt he will ever see that gun again.)

    If you can't trust a United States MARINE with a personal firearm on the 4th of July, in a "Marine town" of Oceanside which sits on the south border of Camp Pendleton, walking to his car with his family at his side after watching the fireworks display then who CAN you trust?

    Anyway, it was determined, and IMHO rightfully so, that an UOC event in Oceanside was too risky at this point, since OPD could easily interpret 12025(a)(2) to mean you can't carry ANY handgun, since even when carried openly, it meets the criteria of being capable of BEING concealed.

    PC § 12025(a)(2) – Firearm Concealed on Person
    This section prohibits carrying a concealed pistol or other firearm capable of being concealed upon the person without a license to carry such a firearm.


    The way it is worded, an unloaded handgun carried OPENLY is a "firearm capable of being concealed upon the person."

    Oceanside is its own little world, with a police force that has no trouble getting a judge to rule ANY shooting "justifiable" when the bullet came from a cop's weapon.

    Therefore, waiting for Nordyke and a few other things to settle first is the better course of action, where Oceanside is concerned.


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    gravedigger wrote:
    Anyway, it was determined, and IMHO rightfully so, that an UOC event in Oceanside was too risky at this point, since OPD could easily interpret 12025(a)(2) to mean you can't carry ANY handgun, since even when carried openly, it meets the criteria of being capable of BEING concealed.

    PC § 12025(a)(2) – Firearm Concealed on Person
    This section prohibits carrying a concealed pistol or other firearm capable of being concealed upon the person without a license to carry such a firearm.


    The way it is worded, an unloaded handgun carried OPENLY is a "firearm capable of being concealed upon the person."

    I'm not so sure that an openly carried pistol meets this criteria.


    This section prohibits carrying a concealed pistol (note that there is no prohibition onunconcealed pistols)or (not and)other firearm capable of being concealed upon the person (concealable, short barreledrifles or short barreledshotguns that are carried openly or concealed?) without a license to carry such a firearm.
    I interperetitto mean that only unconcealed pistols are lawful. What say you?
    "An armed society is a polite society. Manners are good when one may have to back up his acts with his life." Robert A. Heinlein

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    I looked up the P.C. on the CA DoJ website and it's worded differently:

    12025. (a) A person is guilty of carrying a concealed firearm when he or she does any of the following:
    (2) Carries concealed upon his or her person any pistol, revolver, or other firearm capable of being concealed upon the person.


    ...and then there's this:


    (f) Firearms carried openly in belt holsters are not concealed within the meaning of this section.


    Oh, and for the record, I like how people from Utah think.

    Welcome to California (forum).



  13. #13
    State Researcher Kevin Jensen's Avatar
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    flintlock tom wrote:
    Oh, and for the record, I like how people from Utah think.

    Welcome to California (forum).
    Thank you. I like to poke my nose into the other states forums now and then.

    It is always interesting how one state will codify of define something compared to another state.
    "An armed society is a polite society. Manners are good when one may have to back up his acts with his life." Robert A. Heinlein

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    The following is a copy of the email I sent to OPD last night.
    +++++++++++++++++++++++++++++++++++++++++++


    The following letter is a template that was sent out by Mike Stollenwerk, co-founder of Opencarry.org, to be sent by concerned individuals to their applicable police departments. Mike and I collaborated over a letter that is no doubt the inspiration for this letter (I haven't sent you or your department my version of that letter as of yet but it will be attached towards the bottom) and I feel that these two letters, in combination with the one I already sent you (Murray) should put the whole "tape over serial number=PC/RAS" debate to an end.

    This email has also been CC'd to Chief Frank S McCoy as well. I am sure he is going to need some filling in from you Lt. Murray so when he asks I would be prepared.

    ------------------------------------------

    Dear Lt. Murray,

    I just want to touch base with you on the growing practice in California of openly carrying handguns.

    Like most states, folks in California can legally carry visible handguns in belt holsters without any permit. But unlike these states, in California, these handguns must remain unloaded except when being used in self defense or when carried in unincorporated areas where shooting is not prohibited by the County. Loaded magazines may remain attached to belts.

    While you personally may be up to speed on this issue, please ensure that your officers/deputies are reminded from time to time that open carry of unloaded guns in cities (unlike rural areas where guns can be loaded) is lawful in California and that any police stop of open carriers is limited to merely checking the loading condition of the firearm. See, e.g., People v. Knight, 121 Cal.App.4th 1568 (2004) (citing to 51 Ops. Cal. Atty. Gen. 197 (1968)), available at http://caselaw.lp.findlaw.com/data2/californiastatecases/c045858.pdf.

    In my opinion, even though the text of Section 12031 allows it, officers/deputies should not insist on checking load conditions absent reasonable articulable suspicion that either the guns are loaded or that some other crime might be afoot. This would be like stopping cars randomly to see if the driver's are licensed, raising obvious constitutional concerns.

    But it should go without saying that police have no authority to bootstrap these Section 12031 loading checks into serial number checks, see Arizona v. Hicks, 480 U.S. 321 (1987) (holding that police manipulation of personal property to obtain serial numbers violates the Fourth Amendment),or instant background checks, see
    Kolender v. Lawson
    , 461 U.S. 352 (1983) (striking down state statue requiring persons to carry or show ID to police). And as you know, California has no "stop and ID" statute so Hiibel v. Sixth Judicial Dist. Court of Nevada, 542 U.S. 177 (2004) has no bearing on this matter.

    Your officers are likley to run into folks who will tape over their serial numbers and refuse to disclose personal information and will expect not to be detained for these actions. In fact, they'd just like the police to say "howdy" and keep moving along unless some facts or circumstances truly warrant some otheraction.

    Sincerely,

    N8

    -------------------

    BELOW IS A COPY OF THE LETTER I WROTE UP FOR Lt. Shawn Murray
    ----------

    The OC meeting in Oceanside has been canceled by myself until I can get things sorted out better.

    In the meantime, I would like you to peruse the following information.

    Arizona v. Hicks, 480 U.S. 321 (1987). In Hicks, an officer entered an apartment under exigent circumstances to try to find and stop a person who was firing gunshots from inside the apartment. Once inside,the officer saw very expensive stereo equipment in what was otherwise a squalid apartment.[highlight= rgb(255, 255, 255);] [/highlight]Suspecting that the equipment was stolen, [highlight= rgb(153, 153, 255);]the officer picked up the equipment to see the serial numbers so he could run the numbers for hits with known stolen property.[/highlight] In an opinion by Justice Scalia, the Court held that moving the equipment to reveal the serial numbers was a search:
    It matters not that the search uncovered nothing of any great personal value to respondent - serial numbers rather than (what might conceivably have been hidden behind or under the equipment) letters or photographs. A search is a search, even if it happens to disclose nothing but the bottom of a turntable.
    Now, I have highlighted two very important statements, both of which are relevant do the discussions that you and I have had today.

    1) Just because something is "unusual" does not give the police a right to conduct a warrantless search of theperson, their house, their papers or effects (altered 4th Amendment). As Scalia said in her opinon, "a search is a search."

    To better define the term "search", one need look no further than the dictionary.

    to look at or examine (a person, object, etc.) carefully in order to find something concealed

    2) Notice that the officer physically lifted and removed equipment to gather evidence, all without a search warrant, so that the equipment could be checked in their database. Again, just because the evidence is not visible or is "unusually" obstructed does not mean that removal of said obstruction is justified.


    Now, to look at Terry vs. Ohio

    While the 12031 check gives CA peace officers the power but not the obligation to conduct a 12031(e) check on people carrying a firearm, the scope of the (questionably illegal) "search" is to check if the weapon is unloaded or not. If the weapon is LOADED, then an arrest and thereby a further search can be conducted, since clear and articulable suspicion can be provided. However, if unloaded, the individual must be released to go about his business. The tape over the serial number is not a crime and the mere "hunch" that the person bearing the weapon may be a criminal or have a stolen weapon is not relevant.

    Simple “‘good faith on the part of the arresting officer is not enough.’ ... If subjective good faith alone were the test, the protections of the Fourth Amendment would evaporate, and the people would be ‘secure in their persons, houses, papers, and effects,’ only in the discretion of the police.” - Beck v. Ohio

    Now, you might be wondering... is the bearing of arms a crime? NOPE! There is also no "gun exclusion" to Terry, meaning that just because a gun is present does not mean that a crime has been or is going to be committed. See Florida v. J.L..

    Putting everything together, one can see that carrying a gun is not an indication that a crime has been committed and that it would be a 4th amendment violation to remove tape or accessories from a firearm to uncover and run a serial number.

    -----------------------------------------------------------------

    Also, I am going to need a lot of clarification on Oceanside's (questionably legal) local ordinance, copied below.

    Sec. 20.10. Weapons--Possession in public--Prohibited.
    No person shall be or appear in any street, alley, sidewalk, parkway or any public place or place open to public view while carrying upon his person, or having in his immediate possession, any dangerous or deadly weapon. This section shall not be construed to duplicate prohibitions of California state statute, or to prohibit the possession of weapons expressly authorized by California state statute.
    (Ord. Code, § 4134; Ord. No. 93-19, § 9, 10-13-93)


    Open carry is expressly authorized by California state statute but the ordinance bans "dangerous or deadly weapons"... how does that work, exactly?

    Get back to me when you can.

    -N8

    -------------------------------------
    This is the exact same letter I sent to SDPD prior to the SD OC Meet. I was helped by Mike Stollenwerk, co-founder of Opencarry.org

    Arizona v. Hicks - precludes police access to or recording of serial numbers as a matter of Fourth Amendment law.

    Kolender v. Lawsen- a state cannot mandate people identify themselves with credentials even if they want to.
    Hiibel v. Sixth Judicial District Court of Nevada- Quoted in Kolender v. Lawsen style="font-family: arial,helvetica,sans-serif;" as supporting case law. Limits police interaction to stating my name with no requirement to show ID when I am stopped and detained for suspicious activity, e.g. articulable suspicion that I was involved in a crime.

    Terry v. Ohio- Police can stop and search a person if and only if "specific and articulable facts" are present. Police hunches and searches based on one exercising one's Constitutional rights are not included.

    Other things to consider

    1) Law states that serial numbers cannot be obliterated or altered, not obscured or hidden. If the obscured or hidden rule were to be followed, then a lot of revolvers could be considered illegal since the serial number is oftentimes hidden beneath the grip. Likewise with Glocks and a mounted accessory on the accessory rail, Mossbergs and sidesaddles, etc.

    2) In Arizona vs. Hicks, the police removed moved objects in order to record a serial number, an action which requires a search warrant as the serial numbers were not plainly visible. Likewise, removing tape to reveal a serial number is grounds for a 4th amendment violation.

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    Regular Member mjones's Avatar
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    gravedigger wrote:
    Anyway, it was determined, and IMHO rightfully so, that an UOC event in Oceanside was too risky at this point, since OPD could easily interpret 12025(a)(2) to mean you can't carry ANY handgun, since even when carried openly, it meets the criteria of being capable of BEING concealed.

    PC § 12025(a)(2) – Firearm Concealed on Person
    This section prohibits carrying a concealed pistol or other firearm capable of being concealed upon the person without a license to carry such a firearm.


    The way it is worded, an unloaded handgun carried OPENLY is a "firearm capable of being concealed upon the person."
    Ahandgun can't be both a 'pistol' and an 'other firearm' at the same time.

    Also don't forget the specific exemtion for openly carried.

    "12025(f) Firearms carried openly in belt holsters are not concealed
    within the meaning of this section."




  16. #16
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    N8,
    Lots of good stuff there.
    One tiny point, however"
    As Scalia said in her opinon...
    Antonin Scalia believes himself to be male. If you have information to the contrary I bet he would be anxious to here it.



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    flintlock tom wrote:
    N8,
    Lots of good stuff there.
    One tiny point, however"
    As Scalia said in her opinon...
    Antonin Scalia believes himself to be male. If you have information to the contrary I bet he would be anxious to here it.

    DAMMIT! I've always had gender identification issues though. Speaking of which, I am off to Forever 21 for a nice tight shirt to OC in.





  18. #18
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    gravedigger wrote:
    ...

    Anyway, it was determined, and IMHO rightfully so, that an UOC event in Oceanside was too risky at this point, since OPD could easily interpret 12025(a)(2) to mean you can't carry ANY handgun, since even when carried openly, it meets the criteria of being capable of BEING concealed.

    PC § 12025(a)(2) – Firearm Concealed on Person
    This section prohibits carrying a concealed pistol or other firearm capable of being concealed upon the person without a license to carry such a firearm.


    The way it is worded, an unloaded handgun carried OPENLY is a "firearm capable of being concealed upon the person."
    First, I think the meetup was cancelled due to an indication from the OPD that they would be doing serial number checks and possibly construing a taped-over serial number as a crime.

    Second, you're misquoting 12025(a)(2). (I'm guessing you actually are quoting another source that misquotes the section.) Here's what it really says:

    Code:
    12025.  (a) A person is guilty of carrying a concealed firearm when
    he or she does any of the following:
    (1) Carries concealed within any vehicle which is under his or her
    control or direction any pistol, revolver, or other firearm capable
    of being concealed upon the person.
    (2) Carries concealed upon his or her person any pistol, revolver,
    or other firearm capable of being concealed upon the person.
    It is painfully obvious that the statute prohibits only concealed carry of any firearm that is a "pistol, revolver, or other firearm capable of being concealed upon the person."

    Hope this helps.
    Participant in the Free State Project - "Liberty in Our Lifetime" - www.freestateproject.org
    Supporter of the CalGuns Foundation - http://www.calgunsfoundation.org/
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  19. #19
    Anti-Saldana Freedom Fighter
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    Would anyone be interested in an OC meet-up on the 4th of July at the same location that BobBarker was detained?
    I would like to see the Oceanside city attorney choke on his Wheaties trying to justify persecuting BobBarker and not prosecuting the 2 dozen other open carriers at the same location.

    And, by the way, is there any update on his case?

  20. #20
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    very interesting idea...

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