Results 1 to 19 of 19

Thread: New 12031 Case Law

  1. #1
    Regular Member Decoligny's Avatar
    Join Date
    Nov 2007
    Location
    Rosamond, California, USA
    Posts
    1,865

    Post imported post

    http://www.courtinfo.ca.gov/opinions...ts/B204571.PDF

    Here is an interesting piece of case law.

    Put that fence up around your front yard and you are good to go carrying a loaded firearm, even in Compton.



  2. #2
    Founder's Club Member MudCamper's Avatar
    Join Date
    Sep 2007
    Location
    Sebastopol, California, USA
    Posts
    710

    Post imported post

    Interesting.

    “The term public place generally means a location readily accessible to all those who wish to go there . . . . The key consideration is whether a member of the public can access the place without challenge.‟
    It has been held that a “public place includes the area outside a home in which a stranger is able to walk without challenge.”
    What I now wonder is, if I have no fence, but clearly visible NO TRESPASSING signs posted all around my yard, would that qualify as a "challenge" to entry, and therefore make it a private place?


  3. #3
    Anti-Saldana Freedom Fighter
    Join Date
    Jun 2008
    Location
    San Diego, California, USA
    Posts
    405

    Post imported post

    MudCamper wrote:
    Interesting.

    “The term public place generally means a location readily accessible to all those who wish to go there . . . . The key consideration is whether a member of the public can access the place without challenge.‟
    It has been held that a “public place includes the area outside a home in which a stranger is able to walk without challenge.”
    What I now wonder is, if I have no fence, but clearly visible NO TRESPASSING signs posted all around my yard, would that qualify as a "challenge" to entry, and therefore make it a private place?
    It would seem logical and reasonable that "No Trespassing" signs would constitute a "challenge", so, therefore, in California, it does not. :?

  4. #4
    Regular Member mjones's Avatar
    Join Date
    Jul 2008
    Location
    SoCal, , USA
    Posts
    979

    Post imported post

    My front yard is 'fenced' with lots of shrubbery and rose bushes...I wonder if that counts...

  5. #5
    Regular Member Decoligny's Avatar
    Join Date
    Nov 2007
    Location
    Rosamond, California, USA
    Posts
    1,865

    Post imported post

    mjones wrote:
    My front yard is 'fenced' with lots of shrubbery and rose bushes...I wonder if that counts...
    If there is an access, where they can walk right into the yard, without having to open a gate, or climb over something, then I would say probably not.



  6. #6
    Banned
    Join Date
    Jul 2009
    Location
    San Diego County, CA, California, USA
    Posts
    1,402

    Post imported post

    It's not very challenging to disregard legal texts. Corrupt cops do it all the time.

  7. #7
    Regular Member
    Join Date
    Jul 2009
    Location
    Riverside County, California, USA
    Posts
    353

    Post imported post

    Decoligny wrote:
    http://www.courtinfo.ca.gov/opinions...ts/B204571.PDF

    Here is an interesting piece of case law.*

    Put that fence up around your front yard and you are good to go carrying a loaded firearm, even in Compton.
    I was reading about stuff like this recently. Here are some case laws regarding private property being a public place:

    People v. Olson (1971) 18 Cal.App.3d 592, 598 [driveway, lawn, and porch in front of defendant's house were public places for purposes of section 647, subdivision (f), in that they were accessible and open to common or general use]

    People v. Green (1971) 15 Cal.App.3d 766, 771 [hospital parking lot, accessible to members of public having business with the hospital, was a public place]

    cf. People v. White (1991) 227 Cal.App.3d 886, 890-893 [defendant's fenced front yard, containing three dogs which acted as deterrents to public access, was not a public place for purposes of section 647, subdivision (f), even though the yard was open to public view]

    But relevant to carrying a firearm, 12025, 12031, and 626.9 all have exceptions for private property which is not the case in other laws prohibiting certain acts in public places. In People v. Tapia (2005)129 Cal.App.4th 1153 , 29 Cal.Rptr.3d 158 it states:
    That the Legislature did not necessarily intend section 626.9 to be governed by the "public place" analysis is also suggested by the exception for places of business. It is readily apparent that a great many places of business are open to common use and enjoyment by members of the public. Nonetheless, section 626.9's exception expressly encompasses places of business.
    In Tapia (2005), a sidewalk was ruled to be more public property than private for the purposes of 626.9.

    This is complicated by People v. Yarbrough (2008) , Cal.App.4th where a conviction for 12025 and 12031 where upheld against a defendant while he was in a driveway.

    But, in spite of Tapia, the convictions were upheld based on public place analysis. The defendant claimed Heller, and challenged jury instructions regarding public place definition, but never raised the private property exception. Since the private place exception was never raised by the defendant, the appellate judge ignored that detail.

    As it stands, it is my opinion (IANAL/TINLA) that you are legally protected in having a loaded and or concealed handgun in your front yard. It is the unfortunate reality however,that it is a coin toss whether or not a DA or judge would respect the law.

  8. #8
    Regular Member
    Join Date
    Jun 2008
    Location
    fresno, California, USA
    Posts
    210

    Post imported post

    I dont have a fence in my front yard so that makes it a public place? well then the county better start payingmy property tax for it!!!

  9. #9
    Regular Member
    Join Date
    Jul 2009
    Location
    Riverside County, California, USA
    Posts
    353

    Post imported post

    poothrowingape wrote:
    I dont have a fence in my front yard so that makes it a public place? well then the county better start payingmy property tax for it!!!
    An unfenced front yard is a public place but private property. That makes it a gray area legally. Theseus's case may settle it if it goes on far enough.

  10. #10
    State Researcher
    Join Date
    Jul 2007
    Location
    Stanislaus County, California, USA
    Posts
    2,586

    Post imported post

    inbox485 wrote:
    poothrowingape wrote:
    I dont have a fence in my front yard so that makes it a public place? well then the county better start payingmy property tax for it!!!
    An unfenced front yard is a public place but private property. That makes it a gray area legally. Theseus's case may settle it if it goes on far enough.
    Thesues' case is unrelated to this topic. 626.9 Exempts private property (versus private places). It's easy to get this exemption confused with the "public places" where 12031 applies.

    IIRC, Thesues was confronted by LE while conducting business in a public laundry facility, which is definitely private property (unless the city owns/leases the facility and runs the business), but which is also definitely a public place (which has no bearing on 626.9, no matter how much the DA in his case wishes to try to apply it).
    Participant in the Free State Project - "Liberty in Our Lifetime" - www.freestateproject.org
    Supporter of the CalGuns Foundation - http://www.calgunsfoundation.org/
    Supporter of the Madison Society - www.madison-society.org


    Don't Tread On Me.

  11. #11
    State Researcher
    Join Date
    Jul 2007
    Location
    Stanislaus County, California, USA
    Posts
    2,586

    Post imported post

    Decoligny wrote:
    http://www.courtinfo.ca.gov/opinions...ts/B204571.PDF

    Here is an interesting piece of case law.
    Thank you for this find! It's heartening to know there are some higher judges who are willing to apply the law and slap down the trial courts. There is hope for CA!
    Participant in the Free State Project - "Liberty in Our Lifetime" - www.freestateproject.org
    Supporter of the CalGuns Foundation - http://www.calgunsfoundation.org/
    Supporter of the Madison Society - www.madison-society.org


    Don't Tread On Me.

  12. #12
    Regular Member
    Join Date
    Sep 2009
    Location
    Ramona, CA, ,
    Posts
    11

    Post imported post

    flintlock tom wrote:
    It has been held that a “public place includes the area outside a home in which a stranger is able to walk without challenge.”


    What if I challange said stranger with my loaded pistol?

  13. #13
    Regular Member
    Join Date
    Jul 2009
    Location
    Riverside County, California, USA
    Posts
    353

    Post imported post

    CA_Libertarian wrote:
    inbox485 wrote:
    poothrowingape wrote:
    I dont have a fence in my front yard so that makes it a public place? well then the county better start paying*my property tax for it!!!
    An unfenced front yard is a public place but private property. That makes it a gray area legally. Theseus's case may settle it if it goes on far enough.
    Thesues' case is unrelated to this topic. 626.9 Exempts private property (versus private places). It's easy to get this exemption confused with the "public places" where 12031 applies.

    IIRC, Thesues was confronted by LE while conducting business in a public laundry facility, which is definitely private property (unless the city owns/leases the facility and runs the business), but which is also definitely a public place (which has no bearing on 626.9, no matter how much the DA in his case wishes to try to apply it).
    Theseus's case was in the parking lot of said laundry mat according to:
    http://opencarry.mywowbb.com/forum12/31135-1.html

    626.9 exempts private property (PC626.9(c)(1)) and 12031 exempts private property lawfully possessed by the individual (PC12031(h)). Neither use the term "private place". So while not the exact same thing, I doubt a case ruling on one could not affect the other.

  14. #14
    State Researcher
    Join Date
    Jul 2007
    Location
    Stanislaus County, California, USA
    Posts
    2,586

    Post imported post

    inbox485 wrote:
    Theseus's case was in the parking lot of said laundry mat according to:
    http://opencarry.mywowbb.com/forum12/31135-1.html

    626.9 exempts private property (PC626.9(c)(1)) and 12031 exempts private property lawfully possessed by the individual (PC12031(h)). Neither use the term "private place". So while not the exact same thing, I doubt a case ruling on one could not affect the other.
    Almost right. The devil is in the details.

    12031 only exempts "posession" on private property. In People v Overturf, the court ruled that "carrying" is not exempted, only "possession" is; and since it's possible to possess a firearm without carrying it, that's what the legislature intended to exempt. So, if the loaded firearm were sitting on a table next to you in your unfenced front yard, then it would be legally exempted. (The trick is getting the pistol loaded without "carrying" it - just slide the mag in without picking it up, I guess...)

    You are correct that this decision effects 12031, as it is material in this case. 12031 does rely on whether your private property is a "public place". 626.9, however, does NOT rely on "public places" at all... it simply doesn't apply on private property, whether public or not. (Though the DA in Thesues' case wishes to rewrite the law as such.)
    Participant in the Free State Project - "Liberty in Our Lifetime" - www.freestateproject.org
    Supporter of the CalGuns Foundation - http://www.calgunsfoundation.org/
    Supporter of the Madison Society - www.madison-society.org


    Don't Tread On Me.

  15. #15
    Regular Member
    Join Date
    Jul 2009
    Location
    Riverside County, California, USA
    Posts
    353

    Post imported post

    CA_Libertarian wrote:
    inbox485 wrote:
    Theseus's case was in the parking lot of said laundry mat according to:
    http://opencarry.mywowbb.com/forum12/31135-1.html

    626.9 exempts private property (PC626.9(c)(1)) and 12031 exempts private property lawfully possessed by the individual (PC12031(h)). Neither use the term "private place". So while not the exact same thing, I doubt a case ruling on one could not affect the other.
    Almost right. The devil is in the details.

    12031 only exempts "posession" on private property. In People v Overturf, the court ruled that "carrying" is not exempted, only "possession" is; and since it's possible to possess a firearm without carrying it, that's what the legislature intended to exempt. So, if the loaded firearm were sitting on a table next to you in your unfenced front yard, then it would be legally exempted. (The trick is getting the pistol loaded without "carrying" it - just slide the mag in without picking it up, I guess...)

    You are correct that this decision effects 12031, as it is material in this case. 12031 does rely on whether your private property is a "public place". 626.9, however, does NOT rely on "public places" at all... it simply doesn't apply on private property, whether public or not. (Though the DA in Thesues' case wishes to rewrite the law as such.)
    Quite right. I was thinking of the private property exception for 12025. Either way, I have a fenced yard, and should I move in the future, I will at least have one of those cute little picket fences.

  16. #16
    State Researcher
    Join Date
    Jul 2007
    Location
    Stanislaus County, California, USA
    Posts
    2,586

    Post imported post

    inbox485 wrote:
    Quite right. I was thinking of the private property exception for 12025. Either way, I have a fenced yard, and should I move in the future, I will at least have one of those cute little picket fences.
    Careful to make sure it's a sturdy picket fence... IIRC, the case had some language about "decorative" fences not being a true barrier to entry.

    An interesting note on 12025, in light of Overturf. Look at the wording of 12025. It only prohibits "carrying" a concealed firearm. As we know from Overturf carrying is only one specific form of possession. So it is not illegal to possess a concealed handgun, unless that handgun is also carried.

    So, under the court's logic, the legislature didn't intend 12025 to stop us from, say, going into a restaurant, placing our unloaded firearm on the seat/table next to us, and then covering it with a newspaper of jacket. As long as we expose it again before carrying it out...
    Participant in the Free State Project - "Liberty in Our Lifetime" - www.freestateproject.org
    Supporter of the CalGuns Foundation - http://www.calgunsfoundation.org/
    Supporter of the Madison Society - www.madison-society.org


    Don't Tread On Me.

  17. #17
    Regular Member Decoligny's Avatar
    Join Date
    Nov 2007
    Location
    Rosamond, California, USA
    Posts
    1,865

    Post imported post

    CA_Libertarian wrote:
    inbox485 wrote:
    Quite right. I was thinking of the private property exception for 12025. Either way, I have a fenced yard, and should I move in the future, I will at least have one of those cute little picket fences.
    Careful to make sure it's a sturdy picket fence... IIRC, the case had some language about "decorative" fences not being a true barrier to entry.

    An interesting note on 12025, in light of Overturf. Look at the wording of 12025. It only prohibits "carrying" a concealed firearm. As we know from Overturf carrying is only one specific form of possession. So it is not illegal to possess a concealed handgun, unless that handgun is also carried.

    So, under the court's logic, the legislature didn't intend 12025 to stop us from, say, going into a restaurant, placing our unloaded firearm on the seat/table next to us, and then covering it with a newspaper of jacket. As long as we expose it again before carrying it out...
    So, If you are sitting in your front yard, and your firearm is concealed under your shirt, since you are not in motion, you "HAVE" a concealed firearm (legal). If you were to get up and walk around, you would then be "CARRYING" a concealed fiream (illegal).

    If a cop showed up and said "Come over here", would you have to say "I can't without breaking the law, I have a concealed firearm, but I can't carry it"?

  18. #18
    Regular Member
    Join Date
    Jul 2009
    Location
    Riverside County, California, USA
    Posts
    353

    Post imported post

    Decoligny wrote:
    CA_Libertarian wrote:
    inbox485 wrote:
    Quite right. I was thinking of the private property exception for 12025. Either way, I have a fenced yard, and should I move in the future, I will at least have one of those cute little picket fences.
    Careful to make sure it's a sturdy picket fence... IIRC, the case had some language about "decorative" fences not being a true barrier to entry.

    An interesting note on 12025, in light of Overturf. Look at the wording of 12025. It only prohibits "carrying" a concealed firearm. As we know from Overturf carrying is only one specific form of possession. So it is not illegal to possess a concealed handgun, unless that handgun is also carried.

    So, under the court's logic, the legislature didn't intend 12025 to stop us from, say, going into a restaurant, placing our unloaded firearm on the seat/table next to us, and then covering it with a newspaper of jacket. As long as we expose it again before carrying it out...
    So, If you are sitting in your front yard, and your firearm is concealed under your shirt, since you are not in motion, you "HAVE" a concealed firearm (legal).* If you were to get up and walk around, you would then be "CARRYING" a concealed fiream (illegal).

    If a cop showed up and said "Come over here", would you have to say "I can't without breaking the law, I have a concealed firearm, but I can't carry it"?
    I would imagine that courts would rule that a firearm on your person is carrying.

  19. #19
    State Researcher
    Join Date
    Jul 2007
    Location
    Stanislaus County, California, USA
    Posts
    2,586

    Post imported post

    Decoligny wrote:
    So, If you are sitting in your front yard, and your firearm is concealed under your shirt, since you are not in motion, you "HAVE" a concealed firearm (legal). If you were to get up and walk around, you would then be "CARRYING" a concealed fiream (illegal).

    If a cop showed up and said "Come over here", would you have to say "I can't without breaking the law, I have a concealed firearm, but I can't carry it"?
    I think you may be right... here's the footnote from Overturf:

    [1] "Carrying" and "having" are not synonymous. "Having" relates to an "act or state of possessing," Webster's New International Dictionary, Second Edition, page 1145, while "carrying" refers to the "act or instance of carrying" and the verb "carry" in relevant definition connotes "to convey, or transport ...;" and "to transfer from one place ... to another." (Id. at p. 412.)
    As long as the weapon is not being "conveyed or transported from one place to another", then you are not "carrying".

    However, I don't recommend anybody try using this defense. California courts seem to like "making new law" at any opportunity.

    Participant in the Free State Project - "Liberty in Our Lifetime" - www.freestateproject.org
    Supporter of the CalGuns Foundation - http://www.calgunsfoundation.org/
    Supporter of the Madison Society - www.madison-society.org


    Don't Tread On Me.

Posting Permissions

  • You may not post new threads
  • You may not post replies
  • You may not post attachments
  • You may not edit your posts
  •