sudden valley gunner
Regular Member
imported post
SomeGuyInCali wrote:
SomeGuyInCali wrote:
I would apply it to on duty officers also, unless I asked them there.
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Question RE: LOC on Private Property that is NOT yours.
- Thread starter SomeGuyInCali
- Start date
Mike
Site Co-Founder
imported post
mjones wrote:
You may carry loaded guns in all parts of unincorporated areas without violating 12031, including public places, public streets, and vehicles, unless and only unless, the locality (i.e., County, not state law) has prohibited shooting in that place.
Obviously it pays to research local law! But if you happen to be in an unincorporated area, unless local law probits shooting thus making the area "prohibited" within the narrow meaning of 12031, not only is your conduct lawful, but it is unlawful and civilly actionable conduct for police to demand that you surrender your gun for inspection to see if it is loaded.
mjones wrote:
The bolding of the above section is a bit distracting - remember when applying facts to 12031 you must apply the judicial construction in People v. Knight and its progeny!
You may carry loaded guns in all parts of unincorporated areas without violating 12031, including public places, public streets, and vehicles, unless and only unless, the locality (i.e., County, not state law) has prohibited shooting in that place.
Obviously it pays to research local law! But if you happen to be in an unincorporated area, unless local law probits shooting thus making the area "prohibited" within the narrow meaning of 12031, not only is your conduct lawful, but it is unlawful and civilly actionable conduct for police to demand that you surrender your gun for inspection to see if it is loaded.
Mike
Site Co-Founder
imported post
mjones wrote:
You may carry loaded guns in all parts of unincorporated areas without violating 12031, including public places, public streets, and vehicles, unless and only unless, the locality (i.e., County, not state law) has prohibited shooting in that place.
Obviously it pays to research local law! But if you happen to be in an unincorporated area, unless local law probits shooting thus making the area "prohibited" within the narrow meaning of 12031, not only is your conduct lawful, but it is unlawful and civilly actionable conduct for police to demand that you surrender your gun for inspection to see if it is loaded.
mjones wrote:
The bolding of the above section is a bit distracting - remember when applying facts to 12031 you must apply the judicial construction in People v. Knight and its progeny!
You may carry loaded guns in all parts of unincorporated areas without violating 12031, including public places, public streets, and vehicles, unless and only unless, the locality (i.e., County, not state law) has prohibited shooting in that place.
Obviously it pays to research local law! But if you happen to be in an unincorporated area, unless local law probits shooting thus making the area "prohibited" within the narrow meaning of 12031, not only is your conduct lawful, but it is unlawful and civilly actionable conduct for police to demand that you surrender your gun for inspection to see if it is loaded.
Mike
Site Co-Founder
imported post
mjones wrote:
The bolding in the above section is distracting - remember that when you apply facts to 12031, to read 12031 as judicially construed in California thru People v. Knight and its progeny.
12031 only makes it generally unlawful to carry loaded guns in public places and steets in incorporated areas; for 12031 to make public places and public streets off limits to loaded open carry the locality (i.e., by County ordinance, not state law) must explicitly prohibit shooting in the portion of the locality.
If an unincorporated locality has not prohibited shooting specifically in the area where the street or public place "is," then 12031 does not ban carrying loaded guns in the place whether on your person or in a vehicle.
In unincorporated areas then, except in prohibited areas,it is unlawful and civilly actionable for police to detain a gun carrier to demand to inspect the load condition of the gun. Additionally, mistaken belief by police that the unincorporated area is "prohibited"within the meaning of 12031 will not defeat application of the exclusionary rule to evidence of wrongdoing or contraband (e.g., drugs, unregistered or illegal guns, etc.) found by the police as a result of the unlawful effort to carry out a 12031 inspection.
mjones wrote:
The bolding in the above section is distracting - remember that when you apply facts to 12031, to read 12031 as judicially construed in California thru People v. Knight and its progeny.
12031 only makes it generally unlawful to carry loaded guns in public places and steets in incorporated areas; for 12031 to make public places and public streets off limits to loaded open carry the locality (i.e., by County ordinance, not state law) must explicitly prohibit shooting in the portion of the locality.
If an unincorporated locality has not prohibited shooting specifically in the area where the street or public place "is," then 12031 does not ban carrying loaded guns in the place whether on your person or in a vehicle.
In unincorporated areas then, except in prohibited areas,it is unlawful and civilly actionable for police to detain a gun carrier to demand to inspect the load condition of the gun. Additionally, mistaken belief by police that the unincorporated area is "prohibited"within the meaning of 12031 will not defeat application of the exclusionary rule to evidence of wrongdoing or contraband (e.g., drugs, unregistered or illegal guns, etc.) found by the police as a result of the unlawful effort to carry out a 12031 inspection.
Mike
Site Co-Founder
imported post
Theseus wrote:
Theseus wrote:
Nope, no such rule ever existed. I doubt any state has such a rule.
camsoup
Regular Member
imported post
Mike wrote:
Mike wrote:
It is unlawful to discharge a firearm from or across any public freeway, highway, road, etc...wouldn't that make any of those places "prohibited places" whether they were in incorporated or unincorporated territory??
CA_Libertarian
State Researcher
imported post
camsoup wrote:
While this case law does apply, many of us believe it would be ignored by trial courts (much how Thesues' trial judge is ignoring standing case law on 626.9 in People v Tapia). The lower courts commonly ignore standing case law, and it would be up to you to get that reversed. It is also easily fathomable that the case law would be reversed on appeal.
So, the bottom line is that, technically, Mike is right, and in a perfect world it would be as simple as that. (Then again, in a perfect world we wouldn't need the case law to begin with.) I don't think anybody should put themselves out there as a test case, unless they have the means to go all the way to the 9th Circuit, or higher.
camsoup wrote:
Mike is referring to People v Knight, where Knight was found with a loaded firearm while parked on the shoulder of a public road. The court found that no violation of 12031 occurred because the prosecution failed to prove the side of that road was within an incorporated area.
While this case law does apply, many of us believe it would be ignored by trial courts (much how Thesues' trial judge is ignoring standing case law on 626.9 in People v Tapia). The lower courts commonly ignore standing case law, and it would be up to you to get that reversed. It is also easily fathomable that the case law would be reversed on appeal.
So, the bottom line is that, technically, Mike is right, and in a perfect world it would be as simple as that. (Then again, in a perfect world we wouldn't need the case law to begin with.) I don't think anybody should put themselves out there as a test case, unless they have the means to go all the way to the 9th Circuit, or higher.
MudCamper
Founder's Club Member
imported post
CA_Libertarian wrote:
CA_Libertarian wrote:
Exactly. This is the hard reality at the present time.
Mike
Site Co-Founder
imported post
CA_Libertarian wrote:
Knight has been followed and reinforced multiple times by the ca. appeals court in other cases as I have posted here before. Regardless, prior CA appeals court panels bind future panels; reversing Knight could only occur by way of an en banc appeals ct. or the Ca. S. Ct., somthing that is not going to happen as Knight is settled law that merely affirms the law as it has been since the 1968 AG opinion on the matter. Also, the 9th Circuit does not review decisions of state courts in such matters - why does this conflation keep happenning by California people?
This does not mean everyone should OC loaded in every unincorporated area at all times - obviously it can be risky to do so unless you are sure of where Counties have banned shooting by specific ordinance - but what folks can do is bring civil actions for damages against any non-consensual police stop to check the load status of guns in unincorporated areas if shooting was not in fact banned there by the County - this is the achilles heel of over-exuberant police departments.
Now as to your comment that Theseus's trial court is not folowing an alleged holding in Tapia that a private business held open to the public is school zone exempt private property, this assertion is plainly wrong, and there was not even dicta to this end.
As the Tapia panel stated:
". . . resolution of the instant matter does not require that we determine precisely what “private property” encompasses for purposes of section 626.9. Whatever else the term means, we believe it cannot reasonably be applied to a sidewalk on an easement of way which has been granted to a public entity. The obvious purpose of the statute is to protect children at and near schools. This purpose would be frustrated if the very public sidewalks upon which schoolchildren walk to school were considered outside the scope of the law. We must interpret the law to give it a “ ‘ “reasonable and commonsense interpretation consistent with the apparent purpose and intention of the lawmakers, practical rather than technical in nature, which upon application will result in wise policy rather than mischief or absurdity.”
--
Per the syllabus:
"Aldrich, J., held that:
(1) sidewalk on an easement of way granted to public entity was not “private property” for purposes of private property exception under statute;
(2) statute was not unconstitutionally vague; and
(3) erroneous instruction was harmless beyond a reasonable doubt."
CA_Libertarian wrote:
Again, I disagree with this analysis which leads readers down several very incorrect paths.
Knight has been followed and reinforced multiple times by the ca. appeals court in other cases as I have posted here before. Regardless, prior CA appeals court panels bind future panels; reversing Knight could only occur by way of an en banc appeals ct. or the Ca. S. Ct., somthing that is not going to happen as Knight is settled law that merely affirms the law as it has been since the 1968 AG opinion on the matter. Also, the 9th Circuit does not review decisions of state courts in such matters - why does this conflation keep happenning by California people?
This does not mean everyone should OC loaded in every unincorporated area at all times - obviously it can be risky to do so unless you are sure of where Counties have banned shooting by specific ordinance - but what folks can do is bring civil actions for damages against any non-consensual police stop to check the load status of guns in unincorporated areas if shooting was not in fact banned there by the County - this is the achilles heel of over-exuberant police departments.
Now as to your comment that Theseus's trial court is not folowing an alleged holding in Tapia that a private business held open to the public is school zone exempt private property, this assertion is plainly wrong, and there was not even dicta to this end.
As the Tapia panel stated:
". . . resolution of the instant matter does not require that we determine precisely what “private property” encompasses for purposes of section 626.9. Whatever else the term means, we believe it cannot reasonably be applied to a sidewalk on an easement of way which has been granted to a public entity. The obvious purpose of the statute is to protect children at and near schools. This purpose would be frustrated if the very public sidewalks upon which schoolchildren walk to school were considered outside the scope of the law. We must interpret the law to give it a “ ‘ “reasonable and commonsense interpretation consistent with the apparent purpose and intention of the lawmakers, practical rather than technical in nature, which upon application will result in wise policy rather than mischief or absurdity.”
--
Per the syllabus:
"Aldrich, J., held that:
(1) sidewalk on an easement of way granted to public entity was not “private property” for purposes of private property exception under statute;
(2) statute was not unconstitutionally vague; and
(3) erroneous instruction was harmless beyond a reasonable doubt."
imported post
Mike wrote:
An interesting way to get a police officer to perform a 12031(e) check while one is on unincorporated territory would be to be in an unincorporated island of some sort.
Here is a map of unincorporated portions of San Mateo county: http://www.co.sanmateo.ca.us/planning/pdf/smcuninc.pdf
As you can see there are some pretty sizable pockets of unincorporated land. The one I find the most interesting is San Francisco Airport, although I'm still not convinced that it is really unincorporated.
Here are some unincorporated islands in Santa Clara county: http://www.santaclara.lafco.ca.gov/pdf-files/Urban_Pockets_2005.pdf. You'll notice that some of these pockets are really small. It would be easy to be in one of these islands and have a police officer perform the e check, and then having standing to bring the case to court.
Mike wrote:
Surely you meant to say unincorporated area.
An interesting way to get a police officer to perform a 12031(e) check while one is on unincorporated territory would be to be in an unincorporated island of some sort.
Here is a map of unincorporated portions of San Mateo county: http://www.co.sanmateo.ca.us/planning/pdf/smcuninc.pdf
As you can see there are some pretty sizable pockets of unincorporated land. The one I find the most interesting is San Francisco Airport, although I'm still not convinced that it is really unincorporated.
Here are some unincorporated islands in Santa Clara county: http://www.santaclara.lafco.ca.gov/pdf-files/Urban_Pockets_2005.pdf. You'll notice that some of these pockets are really small. It would be easy to be in one of these islands and have a police officer perform the e check, and then having standing to bring the case to court.
Theseus
Founder's Club Member
imported post
The original court in Tapia ruled the sidewalk was a public place and therefore it was not private property as it applies to 626.9 and that is exactly what the appellate court struck down. The fact that they did not overturn the conviction is another matter, but they expressely defeated the public place and open to the public thought process.
The original court in Tapia ruled the sidewalk was a public place and therefore it was not private property as it applies to 626.9 and that is exactly what the appellate court struck down. The fact that they did not overturn the conviction is another matter, but they expressely defeated the public place and open to the public thought process.
stuckinchico
Regular Member
imported post
I have abuddy that lives right across from Chico State Ive almost got him convinced to have a LOADED OPEN carry bbq on his front lawn GOd that will be so much fun!!!
I have abuddy that lives right across from Chico State Ive almost got him convinced to have a LOADED OPEN carry bbq on his front lawn GOd that will be so much fun!!!
Mike
Site Co-Founder
imported post
Theseus wrote:
Theseus wrote:
The only court that counts is the appeals court which expressly decided not to decide the issue of what "private property" means besides the fact that it was not a private sidewalk. Did you read what I posted? That's what they wrote.
Sons of Liberty
Anti-Saldana Freedom Fighter
imported post
Mike wrote:
I think I see what Theseus is saying, but let me first refresh our memories on what 626.9 states,
"(a) This section shall be known, and may be cited, as the Gun-Free School Zone Act of 1995.
(b) Any person who possesses a firearm in a place that the person knows, or reasonably should know, is a school zone, as defined in paragraph (1) of subdivision (e), unless it is with the written permission of the school district superintendent, his or her designee, or equivalent school authority, shall be punished as specified in subdivision (f).
(c) Subdivision (b) does not apply to the possession of a firearm under any of the following circumstances:
(1) Within a place of residence or place of business or on private property, if the place of residence, place of business, or private property is not part of the school grounds and the possession of the firearm is otherwise lawful.
..."
I think what Theseus is saying is that the appellate court in People v. Tapia said that the term "private property" is not equivalent to anything that is "not a public place" or anything that is "not a public area". So to allow the jury to establish what "private property" was by determining whether it was a "public area" or "public place" is not correct,since you can have public areas on "private property". The code specifically says "private property". If you are in a public area on private property, "Subdivision (b) does not apply".
The appellate court reasoned,
"The difficulty with the trial court’s application of these principles to the instant case is that, unlike the statutes at issue in the aforementioned authorities, section 626.9 does not use the terms “public place” or “public area.” To the contrary, section 626.9 creates an exception for firearm possession on “private property.”"
Is that right Theseus?
Mike wrote:
I think I see what Theseus is saying, but let me first refresh our memories on what 626.9 states,
"(a) This section shall be known, and may be cited, as the Gun-Free School Zone Act of 1995.
(b) Any person who possesses a firearm in a place that the person knows, or reasonably should know, is a school zone, as defined in paragraph (1) of subdivision (e), unless it is with the written permission of the school district superintendent, his or her designee, or equivalent school authority, shall be punished as specified in subdivision (f).
(c) Subdivision (b) does not apply to the possession of a firearm under any of the following circumstances:
(1) Within a place of residence or place of business or on private property, if the place of residence, place of business, or private property is not part of the school grounds and the possession of the firearm is otherwise lawful.
..."
I think what Theseus is saying is that the appellate court in People v. Tapia said that the term "private property" is not equivalent to anything that is "not a public place" or anything that is "not a public area". So to allow the jury to establish what "private property" was by determining whether it was a "public area" or "public place" is not correct,since you can have public areas on "private property". The code specifically says "private property". If you are in a public area on private property, "Subdivision (b) does not apply".
The appellate court reasoned,
"The difficulty with the trial court’s application of these principles to the instant case is that, unlike the statutes at issue in the aforementioned authorities, section 626.9 does not use the terms “public place” or “public area.” To the contrary, section 626.9 creates an exception for firearm possession on “private property.”"
Is that right Theseus?
CA_Libertarian
State Researcher
imported post
Exactly.
The Tapia decision is useful, even though the court didn't go into great elaboration. The CA App Court gave us some language (as noted by Thesues) that points to the fact the legislature obviously didn't intend 626.9 to apply to all places open to the public.
I think Mike makes some good points. And he's definitely better at the legal stuff than I am. I think he's right that when you appeal your conviction to the CA App Ct, you will have it overturned. However, I'd be willing to make book on a trail court conviction. That means time and money. IMO, don't carry loaded on any public road unless you have ample extra time and money lying about.
Exactly.
The Tapia decision is useful, even though the court didn't go into great elaboration. The CA App Court gave us some language (as noted by Thesues) that points to the fact the legislature obviously didn't intend 626.9 to apply to all places open to the public.
I think Mike makes some good points. And he's definitely better at the legal stuff than I am. I think he's right that when you appeal your conviction to the CA App Ct, you will have it overturned. However, I'd be willing to make book on a trail court conviction. That means time and money. IMO, don't carry loaded on any public road unless you have ample extra time and money lying about.
Theseus
Founder's Club Member
imported post
Sons of Liberty wrote:
Sons of Liberty wrote:
That is correct. Private property is private property for the purposes of 626.9. Open to the public or public place has no place in reading of 626.9 and Tapia supports that belief.
Mike
Site Co-Founder
imported post
Theseus wrote:
In the end though, in your case, unless the prosecutor can prove that you knew or had reason to know you were in a school zone, you cannot be convicted. Maybe you admitted you knew you were in a school zone or live in that area and thus were on inquiry notice of this fact?
Don't answer if you wuold incriminate yourself here, but seems to me the biggest bar to your prosecution would by this element of the offense before we even get to the exception for "private property."
Theseus wrote:
Except no appeals court has ever ratified what you state as the rule of law; in fact though the Tapia panel appeared sympathetic to your view of the meaning of 626.9's text - as am I - tapia explicilty said essentially - "but don't quote us, we are not going there nor do we need to."
In the end though, in your case, unless the prosecutor can prove that you knew or had reason to know you were in a school zone, you cannot be convicted. Maybe you admitted you knew you were in a school zone or live in that area and thus were on inquiry notice of this fact?
Don't answer if you wuold incriminate yourself here, but seems to me the biggest bar to your prosecution would by this element of the offense before we even get to the exception for "private property."
Theseus
Founder's Club Member
imported post
Mike wrote:
What I point out, I think, is not merely some novel theory.
The following were the instructions given to the jury:
Mike wrote:
I won't get into that argument because the DA has put me on notice that they are watching this board and writing down everything I say.
What I point out, I think, is not merely some novel theory.
The following were the instructions given to the jury:
I am no lawyer, but the fact that the appellate case struck doen the logic then makes it more than mere dicta.