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Thread: 12031(f)

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    From another thread:

    Mike wrote:
    ...loaded open carry is only prohibited in incorporated areas of california, and in portions of unincorporated areas where the County, and only the County, has prohibited shooting. That's important because in those areas the police have no power to seize gun owners to check their guns to see if they are loaded.
    (Bold is my emphasis.)

    I know this is a bit of a necro-post, but I was hoping to get some clarification...

    Is there some case law that can be cited to prove only county ordinances affect 12031?

    CA PC 12031(f) says:
    (f) As used in this section, "prohibited area" means any place where it is unlawful to discharge a weapon.
    To me "any" means any prohibition. It seems to me that the state could implement laws that prohibit discharge in unincorporated territory (e.g. discharge prohibition in the parking lot of a state-owned rest stop).

    I still maintain that the place has to be geographically specific, and can't simply be a non-geographic prohibition (e.g.shooting from a vehicle, since a vehicle is a "thing" and not a "place").
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    PM Mike? LOC seems harder to grasp then UOC because of "f"'s apparent effect. I believe Mike convinced me that only the County dischargeprohibitions triggered 12031 but that thread has been lost to the archives.

    People v Knight is certainly an example because 12031 was found not to apply to the road Knight was detained upon (PC 674c? notwithstanding). I'd like to read again Mike's explanation on this. I would love to see the reasoning included on some of our brochures and get some groupLOC going at a restaurant in UNincorporated areas when the time is right (post REincorporation).

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    cato wrote:
    PM Mike? LOC seems harder to grasp then UOC because of "f"'s apparent effect. I believe Mike convinced me that only the County dischargeprohibitions triggered 12031 but that thread has been lost to the archives.

    People v Knight is certainly an example because 12031 was found not to apply to the road Knight was detained upon (PC 674c? notwithstanding). I'd like to read again Mike's explanation on this. I would love to see the reasoning included on some of our brochures and get some groupLOC going at a restaurant in UNincorporated areas when the time is right (post REincorporation).
    He also used People v. Young, but I have read through that case and can't seem to put the pieces together.

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    cato wrote:
    PM Mike? LOC seems harder to grasp then UOC because of "f"'s apparent effect. I believe Mike convinced me that only the County dischargeprohibitions triggered 12031 but that thread has been lost to the archives.

    People v Knight is certainly an example because 12031 was found not to apply to the road Knight was detained upon (PC 674c? notwithstanding). I'd like to read again Mike's explanation on this. I would love to see the reasoning included on some of our brochures and get some groupLOC going at a restaurant in UNincorporated areas when the time is right (post REincorporation).
    Yeah, I seem to remember him convincing me at some point, too. I was researching a related topic, and wanted a refresher...

    Already past that research, but would still be nice to bookmark the thread for future reference.

    I'll PM Mike.
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    The appeals courts in and subsequent to People v. Knight have construed the meaning of 12031's text for us within their perceived intent of the legislature as outlined in the 1968 AG opinion.

    What you all need to understand is that when the court saus a statute means somthing, that's what it means - the text has been interpretted and that is what the law "is." Only an en banc panel of the appeals court or the Ca. S. Ct. can overtunr this; however the legislature could re-legislate and change the text, disrupting Kinght and forcing the courts to take a nbew look - and that is what the legislature tried to do last year - ban loaded open carry all over Ca - and failed.

    Bottom line, the the subsection f prohibited areas are only areas established by the county (there is no other form of government of an unincorporated area is there?) as no shooting areas; as Gov. Schwartzenagger said in his veto message, banning loaded open carry then is a "local option."

    I can find the case subsequent to Knight if you really need it that laughed out loud at the moder day AG office's petulant attempts to stretch subsection f to cover all roads - it does not do so as a matter of law in California.

    PS. You huys have elephant memories - my citation to People v. Young at one time was in error - brain fart, meant Knight.

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    Apparently not all of us have elephant memories... but it's coming back.

    If you have the citations handy, I'd love to read them.

    If not, don't kill too much time tracking them down. I can always go on FindLaw.com and look for cases citing Knight.
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    CA_Libertarian wrote:
    Apparently not all of us have elephant memories... but it's coming back.

    If you have the citations handy, I'd love to read them.
    A number of Califronia appeals court cases cite to People v. Knight. The following case, People v. Segura,explains People v. Knight in plain English and explicitly explains why Section 374c does not make all roads "prohibited areas" such that loaded open carry is banned:

    --

    "Section 12031, subdivision (a)(1), provides: "A person is guilty of carrying a loaded firearm when he or she carries a loaded firearm on his or her person or in a vehicle while in any public place or on any public street in an incorporated city or in any public place or on any public street in a prohibited area of unincorporated territory." (Italics added.) Section 12031, subdivision (f), provides that "[a]s used in this section, 'prohibited area' means any place where it is unlawful to discharge a weapon."

    In People v. Knight (2004) 121 Cal.App.4th 1568, 1576, in the context of a suppression motion, the Third District had occasion to review section 12031, subdivision (a)(1). The court concluded the suppression motion should have been granted because the officers did not have reasonable cause to believe defendant had committed a felony by possession of a weapon in an incorporated city or a prohibited area of an unincorporated territory. In so holding the court stated, "[S]ection 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." (Id. at p. 1576.)

    Here, the evidence showed that Segura's possession of the .38 caliber revolver occurred in an unincorporated area of Tulare County. However, the prosecution did not present any evidence that it occurred in a "prohibited area."

    Respondent contends that the possession of the revolver occurred in a "prohibited area" of Tulare county within the meaning of section 12031, subdivision (f) because section 374c makes it unlawful to shoot a firearm from or upon a public road or highway. According to respondent, Segura must have carried the revolver on a public street in order for it to have reached the location where it was found.

    We reject respondent's contention because it is contrary to the opinion of the Attorney General that section 374c does not make rural roads a prohibited area within the meaning of section 12031, subdivision (f). (51 Ops. Atty. Gen. 197, 200.)" People v. Segura, 2006 Cal. App. Unpub. LEXIS 4969, 5-6 (Cal. App. 5th Dist. 2006) (emphasis added).

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    cato wrote:
    PM Mike? LOC seems harder to grasp then UOC because of "f"'s apparent effect. I believe Mike convinced me that only the County dischargeprohibitions triggered 12031 but that thread has been lost to the archives.

    People v Knight is certainly an example because 12031 was found not to apply to the road Knight was detained upon (PC 674c? notwithstanding). . . . I would love to see the reasoning included on some of our brochures and get some groupLOC going at a restaurant in UNincorporated areas.
    Yeah, please do update all brochures and references - and note that the legislature's effort to ban loaded car crry in rural areas failed in 2008 - frankly "unloaded" open carry is not any right - the handgun is not a "functional" firearm so promoting it as a "right" does not really make much sense - we only track the carry of loaded handguns at OpenCarry.org and California would be categorized as open carry banned state were it not for the right to open carry loaded handguns in rural areas.

    The key part about not being in an incorporated are or a prohibited areas of an unincorporated area is that the 12031e load check power of police does not exist - you are like in most states - police have no power to even detain you briefly absent reasonable articulable suspicion of crime afoot, let alone all this ID check and serial number check nonesense.

    PS. I would hold some nice non-confrontational picnics in unincorporated areas first - a commercial restaurant setting may create an unnecessary confrontation with police with bad subsequent publicity fallout until there are some press reports about the right to open carry loaded and without e checks in unincorporated areas.

    Unfortunately, much of the pro-gun community has been educating everyone in california that only unloaded open carry is allowed . . .

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    Mike wrote:
    (51 Ops. Atty. Gen. 197, 200.)
    I've been looking for this AG opinion without success. Got a copy/link?

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    Mike wrote:
    PS. I would hold some nice non-confrontational picnics in unincorporated areas first - a commercial restaurant setting may create an unnecessary confrontation with police with bad subsequent publicity fallout until there are some press reports about the right to open carry loaded and without e checks in unincorporated areas.

    Unfortunately, much of the pro-gun community has been educating everyone in california that only unloaded open carry is allowed . . .
    Kern Co. which is generally a great LOC county, close to LA (70 miles),prohibits discharge in County owned or maintained parks by ordinance (last I checked).

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    cato wrote:
    Mike wrote:
    (51 Ops. Atty. Gen. 197, 200.)
    I've been looking for this AG opinion without success. Got a copy/link?
    No link, can you or somebody in California stop by a law library, copy it, pdf it, and post here?

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    Mike wrote:
    I would hold some nice non-confrontational picnics in unincorporated areas first - a commercial restaurant setting may create an unnecessary confrontation with police with bad subsequent publicity fallout until there are some press reports about the right to open carry loaded and without e checks in unincorporated areas.

    Unfortunately, much of the pro-gun community has been educating everyone in california that only unloaded open carry is allowed . . .
    National and State Parks are out.

    National, State, and Countybuildings maintained by public employees are out. (So if you had to use the bathroom or a covered picnic areayou would need to disarm.)

    National Forest land would be okay in areas where discharge isnt prohibited, but there probably arent any picnic or bbqfacilities near those locations.

    So if we are able to find an open meadow on public lands150 yards from any structure or road we could tote our bbq, our picnic table, and our loaded weapons and enjoy the liberty ensconcedin theConstitution by the second amendment.

    And we do not have the endorsement of Calguns for such an event.

    It sorta reminds me of designated 'free speechareas'.
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    ConditionThree wrote:
    Mike wrote:
    I would hold some nice non-confrontational picnics in unincorporated areas first - a commercial restaurant setting may create an unnecessary confrontation with police with bad subsequent publicity fallout until there are some press reports about the right to open carry loaded and without e checks in unincorporated areas.

    Unfortunately, much of the pro-gun community has been educating everyone in california that only unloaded open carry is allowed . . .
    National and State Parks are out.

    National, State, and Countybuildings maintained by public employees are out. (So if you had to use the bathroom or a covered picnic areayou would need to disarm.)

    National Forest land would be okay in areas where discharge isnt prohibited
    Unless the County prohibits discharge, then loaded open carry should be fine in National Forests even where the National Forest prohibts discharge - the key is the wishes of the local sovereign, not the state or federal sovereigns

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    cato wrote:
    Mike wrote:
    PS. I would hold some nice non-confrontational picnics in unincorporated areas first - a commercial restaurant setting may create an unnecessary confrontation with police with bad subsequent publicity fallout until there are some press reports about the right to open carry loaded and without e checks in unincorporated areas.

    Unfortunately, much of the pro-gun community has been educating everyone in california that only unloaded open carry is allowed . . .
    Kern Co. which is generally a great LOC county, close to LA (70 miles),prohibits discharge in County owned or maintained parks by ordinance (last I checked).
    That is correct. It isthe only county ordinance dealing with firearms in Kern County.

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    Mike wrote:
    A number of Califronia appeals court cases cite to People v. Knight. The following case, People v. Segura,explains People v. Knight in plain English and explicitly explains why Section 374c does not make all roads "prohibited areas" such that loaded open carry is banned:
    ...

    We reject respondent's contention because it is contrary to the opinion of the Attorney General that section 374c does not make rural roads a prohibited area within the meaning of section 12031, subdivision (f). (51 Ops. Atty. Gen. 197, 200.)" People v. Segura, 2006 Cal. App. Unpub. LEXIS 4969, 5-6 (Cal. App. 5th Dist. 2006) (emphasis added).
    This is very interesting. I will read these cases. I am still not clear on how they came to this conclusion. I'll have to update the CA Open Carry Flyer.

    Related question:

    Mike wrote:
    Bottom line, the the subsection f prohibited areas are only areas established by the county (there is no other form of government of an unincorporated area is there?) as no shooting areas; as Gov. Schwartzenagger said in his veto message, banning loaded open carry then is a "local option."
    What about federal shooting restrictions? I have always assumed that federal shooting restrictions, like no shooting in developed areas in National Forests, trigger 12031's prohibited area language. Perhaps they do not?


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    Mike wrote:
    cato wrote:
    Mike wrote:
    (51 Ops. Atty. Gen. 197, 200.)
    I've been looking for this AG opinion without success. Got a copy/link?
    No link, can you or somebody in California stop by a law library, copy it, pdf it, and post here?
    OK I see the problem now. This case is not available anywhere online.

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    OK I found a link to the correct Segura case (there are several Seguras which confuses things). But it contains this:


    NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.
    So it is not binding case law.

    http://www.fearnotlaw.com/articles/article2613.html



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    MudCamper wrote:
    OK I found a link to the correct Segura case (there are several Seguras which confuses things). But it contains this:


    NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.
    So it is not binding case law.

    http://www.fearnotlaw.com/articles/article2613.html

    Not quite the right term; see http://www.courtinfo.ca.gov/rules/in...kid=rule8_1115. None of the post-People v. Knight opinions were "published," yet in practice unpublished cases are cited frequently, see also http://www.ladas.com/BULLETINS/2006/...Opinions.shtml.

    Sugura cites to and re-explains what People v. Knight and in particular the 1968 AG opinion - having just read a proprietary version of the AG Opinion, and its complicated - the rational is that the term "public streets" in 12031 is a lesser included set of "public roads and highways" in 347c and so 12031 as applied to unincrporated areas only bans loaded open carry in "the public ways of towns and villages and not the 'open roads' in rural sections of unincorporated areas" . . . for other similar non-local shooting bans like 374c the opinion applies the notion of requring a concurrance of a "prohibited area" and "public place," concluding that a park in an unincorporated town or village without a uiilding on it would not bring on the proscriptions of12031, nor would "public places" more than150 yards from a building" citing to Fish & Game Code Section 3004 which is od as it only prohibits discharge while hunting, not generally - hence explaining perhaps the decision by the Auberti court to not find a bank, though a public place, automatically inside a prohibited area.

    **Can one of you guys in california get a non-proprietary copy of the Ag opinion and pdf and post it?**

    In any event, that last part of the AG opinion seems to be no longer valid as Section 415 of the Ca. penal Code was repealed, so now the appeals court says even carrying a loaded gun ina bank (clearly a public place) in an unincorporated area is not a violation of 12031 because "[t]he Attorney General has opined, for example, that not every public road or highway is a prohibited area within the meaning of section 12031 (51 Ops.Atty.Gen. 197, 199-200) and that the 'prohibited' nature of a particular unincorporated area may turn on whether there are local ordinances or other laws or regulations prohibiting the discharge of firearms (id. at p. 197). And while former section 415 once made it illegal to fire a gun in an incorporated area - - and thereby brought all of an unincorporated town into the definition of "prohibited area" under section 12031 -- that section has been repealed. (Compare Cohen v. California (1971) 403 U.S. 15, 16 fn. 1 [29 L. Ed. 2d 284] and Kopp v. Fair Pol. Practices Com. (1995) 11 Cal.4th 607, 644, fn. 40.). People v. Auberti,2005 Cal. App. LEXIS 8987 (Cal. App. 3d Dist. 2005).

    Iread all this, consistent with Knight, to appear to mean that a prohibited area must be a locally designated to trigger 12031 penalty for loaded open carry.

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