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Thread: Internal Open Carry Memo Sep 18 2009 Sunnyvale CA

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    Anti-Saldana Freedom Fighter bad_ace's Avatar
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    Here is the memo dated Sep 18 2009

    http://www.opencarryradio.com/docume..._18_Sep_09.pdf

    It was an attachment to an email obtained through a PRAR.

    What I had to say about it on my website:
    I’ve just received this internal memo issued to all Sunnyvale California DPS officers (and fire fighters). The author, Mark Stivers shows his bias toward Open Carry by stating “To be frank I do not like the fact that people can carry an unloaded gun in a holster in plain view in public”

    Then he starts to get it right, stating “However the law says they can and we uphold the law”. Bravo Mark, you hit the nail on the head. He goes on to remind officers reading the memo that they took an oath to uphold the constitution. I’m starting to like this guy.
    If the owner of californiaopencarry.org would like to add it to the library feel free.

    UPDATE:
    Update on the Public Records Request.

    As a bit of "house keeping" I went back and filed a follow up records request, this time scooping up a copy of the "open carry" folder on the departments "J Drive" (a network accessible drive). It was mentioned in the memo as a place of reference for the officers.

    In it:
    • A copy of the SDPS memo on UOC (dated Sep-18-2009)
      A copy of the DA's one-minute-brief (dated Dec-23-2008)
      A_Pocket_review_of_California_Penal_Code_6th_Revis ion[1].doc (lifted from californiaopencarry.org)
      A copy of People vs. James Edward Knight
      California open carriers letter.doc (a template letter sent to police chiefs and sheriffs by UOCers
      CA Peace Officers Association's memo (dated 4-Dec-2008)
      An "End of Watch" statement the responding officer to this encounter ( http://www.youtube.com/watch?v=r3mF7opZ_sI ) sent to himself and possibly others. I've attached this one.
      A copy of "open carry guidlines.pdf" (lifted from californiaopencarry.org)
      Police Chief Magazine article "Chief’s Counsel: Responding to Gun Possession Reports By John M. Collins
      "St.John_v_Alamogordo_Police_Order.pdf" The New Mexico open carry case.
      "Sunnyvale Starbucks 072509.pdf" which is a printed copy of this thread http://opencarry.mywowbb.com/view_topic.php?id=28830 Notice one poster's comments wanting to know if a lawyer would be present were later twisted to make us seem sue-happy.

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    I hate the term "constitutional right". It sounds as if the Constitution somehow gives you permission. It is just a plain right, no one gives you permission, as there is no higher power to give permission. It is an endowed, unalienable right.

    Thanks bad_ace for all the hard work. Looking forward to more reading.



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    Anti-Saldana Freedom Fighter Sons of Liberty's Avatar
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    One of the more thorough memos I've seen. I like the discussion on dispatch digging deeper in the nature of the call. I don't like the direction concerning the running of serial numbers without probable cause or reasonable suspicion. IMHO, such action runs roughshod over the 4th amendment.
    Clinging to God & Guns: The Constitution Restoration Project

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    Anti-Saldana Freedom Fighter bigtoe416's Avatar
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    Good memo. A tip of the hat definitely goes out to Mr. Stivers.

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    Anti-Saldana Freedom Fighter Sons of Liberty's Avatar
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    Just another comment about the issue of serial numbers in "plain view."

    The Sunnyvale memo uses People v. DeLong as the case law that prohibits the search for serial numbers not in plain view.

    My reading of People v. DeLong is that the case law has to dowith the constitutionality of a loaded gun check. This case law does not address the running of serial numbers from a gun.

    Arizona v. Hicks has to do with obtaining serial numbers under the "plain view" doctrine limitations. The court was very clear that in order for the "plain view" doctrine to be invoked, there must be probable cause.

    "We now hold that probable cause is required. To say otherwise would be to cut the "plain view" doctrine loose from its theoretical and practical moorings."

    What is the difference between "happen to see it" during a 12031(e) inspection and seeing it during a "search" of the weapon? Only the perspective of the individual whoistrying to protecthis privacy and theperspective of the individual trying to invadeanother's under the color of happenstance.

    The purpose of a 12031(e) check is to determine whether a gun is loaded. To manipulate the gun, observe the serial number, write it down, and run it in the database to obtain owner information is beyond the authority of a 12031(e) check.A 12031(e) inspection is not probable cause to run a serial number. And when a serial number is taken from the inspection and run, itconstitutes an unreasonablesearch in violation of the 4th amendment. IMHO.
    Clinging to God & Guns: The Constitution Restoration Project

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    Anti-Saldana Freedom Fighter bad_ace's Avatar
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    Additionally, lets say the officer has a photographic memory and only needed to see the serial number for a second during the 'e' check. At this point he's discovered that I am in fact law abiding (unloaded firearm) and am free to go. If a search of a database given to dispatch takes minutes, am I to be detained without probable cause or suspicion of a crime? I'm sure the officers will try and "persuade" you to stick around but I see no duty on my part to do so. Expect to hear something like "We need you to stick around because we don't know if you've committed a crime yet." a.k.a A Fishing Expedition.

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    Hi Guys and Gals! Lead Lobber here, and I just want to say, keep up the good work. As a citizen of Sunnyvale, I am dismayed by recent reports of police activity against UOC.

    Just to keep you all in good spirits, I sent off paperwork tonight to add to my handgun collection, and also posted an order for three different speed loaders for my S&W wheel guns.

    But actually go UOC? In Sunnyvale? It seems the powers that be ignore the law of the land, so why cops with guns? The cops that will bust you for this have small penis fears, and the ones that don't, don't.

    So, stay away from cops with little dicks, and you should have no problems.

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    They're in a position where they're not used to dealing with legal firearm carry. From reading the memo, it seems they're in the process of sorting it out and sticking to the law without stepping on anybody's rights.

    Thanks for the link, it's promising. Now...to just get politicians in office that can actually implement decent gun laws...like Idaho has. I'm moving back there soon, hopefully for only a short time, and I'm not looking forward to it. Wish I could bring all the Idaho politicians with me, I've had a little correspondance with several of them and it's pretty much across the board in support of the 2nd amendment (and the Idaho state constitution, as well, which supports gun rights).

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    Lol, you gotta love the part..

    "These citizens perceive themselves as law abiding people excersizing their rights"

    Perceive? How about we know.

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    Regular Member Decoligny's Avatar
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    Can someone either post the text, or upload the memo as a pdf?

    I (and others) can't access certain links due to firewall restrictions.

    Thanks

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    I have about 28 years of law enforcement expirence under my gun belt and I believe, from his memo,Mark Stivers is very professional in his job.

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    Regular Member mjones's Avatar
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    Here you go Deco



    ETA: I think that's the most solid LEO Memo to date (barring the minor editorializing at the beginning)

    Nice work Sunnyvale OCers!

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    Founder's Club Member MudCamper's Avatar
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    bad_ace wrote:
    Here is the memo dated Sep 18 2009

    http://www.opencarryradio.com/docume..._18_Sep_09.pdf

    It was an attachment to an email obtained through a PRAR.

    If the owner of californiaopencarry.org would like to add it to the library feel free.
    Will do. Thanks, bad_ace!

    Just finished reading it. This is the best memo I've seen so far. The author seems to be pro-RKBA and is thorough and professional.

    Also cross-posted this over on CalGuns.


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    So is OK or not to put tale over your serial #? Reading this it appears illegal

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    Regular Member mjones's Avatar
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    woodey wrote:
    So is OK or not to put tale over your serial #? Reading this it appears illegal
    I'd call it a wobbler myself, but there is a thread here somewhere where we had a big discussion on the topic. I'll look for it shortly...

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    Regular Member mjones's Avatar
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    mjones wrote:
    woodey wrote:
    So is OK or not to put tale over your serial #? Reading this it appears illegal
    I'd call it a wobbler myself, but there is a thread here somewhere where we had a big discussion on the topic. I'll look for it shortly...
    I didn't reread it, so I'm not positive I got the right thread.

    Anyhow...here you go:

    http://opencarry.mywowbb.com/view_to...=serial+number

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    That didn't clear anything up

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    Looks like LEO may have there wording wrong, from another forum





    Quote:




    Originally Posted by KylaGWolf
    Yes if you cover your serial number then you have broken a law.I am going to write to BeeMiller Inc, who made my Hi-Point, explaining the Open Carry movement. I will try to get a letter giving me "specific authorization" to cover the serial number with a piece of electrical tape. This will allow me to be exempt from 537(e).

    537e. (a) Any person who knowingly buys, sells, receives, disposes of, conceals, or has in his or her possession any personal property from which the manufacturer's serial number, identification number, electronic serial number, or any other distinguishing number or identification mark has been removed, defaced, covered, altered, or destroyed, is guilty of a public offense, punishable as follows:
    (1) If the value of the property does not exceed four hundred dollars ($400), by imprisonment in a county jail not exceeding six months.
    (2) If the value of the property exceeds four hundred dollars ($400), by imprisonment in a county jail not exceeding one year.
    (3) If the property is an integrated computer chip or panel of a value of four hundred dollars ($400) or more, by imprisonment in the state prison for 16 months, or 2 or 3 years or by imprisonment in a county jail not exceeding one year.
    For purposes of this subdivision, "personal property" includes, but is not limited to, the following:
    (1) Any television, radio, recorder, phonograph, telephone, piano, or any other musical instrument or sound equipment.
    (2) Any washing machine, sewing machine, vacuum cleaner, or other household appliance or furnishings.
    (3) Any typewriter, adding machine, dictaphone, or any other office equipment or furnishings.
    (4) Any computer, printed circuit, integrated chip or panel, or other part of a computer.
    (5) Any tool or similar device, including any technical or scientific equipment.
    (6) Any bicycle, exercise equipment, or any other entertainment or recreational equipment.
    (7) Any electrical or mechanical equipment, contrivance, material, or piece of apparatus or equipment.
    (8) Any clock, watch, watch case, or watch movement.
    (9) Any vehicle or vessel, or any component part thereof.
    (b) When property described in subdivision (a) comes into the custody of a peace officer it shall become subject to the provision of Chapter 12 (commencing with Section 1407) of Title 10 of Part 2, relating to the disposal of stolen or embezzled property. Property subject to this section shall be considered stolen or embezzled property for the purposes of that chapter, and prior to being disposed of, shall have an identification mark imbedded or engraved in, or permanently affixed to it.
    (c) This section does not apply to those cases or instances where any of the changes or alterations enumerated in subdivision (a) have been customarily made or done as an established practice in the ordinary and regular conduct of business, by the original manufacturer, or by his or her duly appointed direct representative, or under specific authorization from the original manufacturer.



    The memo is also WRONG when it says "PC 12090 Tampering with marks on firearms. It is illegal to possess a firearm in which the serial number has been altered, COVERED, or obliterated. (FEL)

    Nowhere is 12090 do you see the term "covered". You do see the following terms used:
    Changes
    Alters
    Removes
    Obliterates

    The one thing all these terms have in common is that they are all permanent attempts to keep the firearm from being identified.

    Taping Over the serial number does not change the number.
    Taping Over the serial number does not alter the number.
    Taping Over the serial number does not remove the number.
    Taping Over the serial number does not obliterate the number.

    12090. Any person who changes, alters, removes or obliterates the name of the maker, model, manufacturer's number, or other mark of identification, including any distinguishing number or mark assigned by the Department of Justice on any pistol, revolver, or any other firearm, without first having secured written permission from the department to make such change, alteration or removal shall be punished by imprisonment in the state prison.

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    woodey wrote:
    Looks like LEO may have there wording wrong, from another forum





    Quote:




    Originally Posted by KylaGWolf
    Yes if you cover your serial number then you have broken a law.I am going to write to BeeMiller Inc, who made my Hi-Point, explaining the Open Carry movement. I will try to get a letter giving me "specific authorization" to cover the serial number with a piece of electrical tape. This will allow me to be exempt from 537(e).

    537e. (a) Any person who knowingly buys, sells, receives, disposes of, conceals, or has in his or her possession any personal property from which the manufacturer's serial number, identification number, electronic serial number, or any other distinguishing number or identification mark has been removed, defaced, covered, altered, or destroyed, is guilty of a public offense, punishable as follows:
    (1) If the value of the property does not exceed four hundred dollars ($400), by imprisonment in a county jail not exceeding six months.
    (2) If the value of the property exceeds four hundred dollars ($400), by imprisonment in a county jail not exceeding one year.
    (3) If the property is an integrated computer chip or panel of a value of four hundred dollars ($400) or more, by imprisonment in the state prison for 16 months, or 2 or 3 years or by imprisonment in a county jail not exceeding one year.
    For purposes of this subdivision, "personal property" includes, but is not limited to, the following:
    (1) Any television, radio, recorder, phonograph, telephone, piano, or any other musical instrument or sound equipment.
    (2) Any washing machine, sewing machine, vacuum cleaner, or other household appliance or furnishings.
    (3) Any typewriter, adding machine, dictaphone, or any other office equipment or furnishings.
    (4) Any computer, printed circuit, integrated chip or panel, or other part of a computer.
    (5) Any tool or similar device, including any technical or scientific equipment.
    (6) Any bicycle, exercise equipment, or any other entertainment or recreational equipment.
    (7) Any electrical or mechanical equipment, contrivance, material, or piece of apparatus or equipment.
    (8) Any clock, watch, watch case, or watch movement.
    (9) Any vehicle or vessel, or any component part thereof.
    (b) When property described in subdivision (a) comes into the custody of a peace officer it shall become subject to the provision of Chapter 12 (commencing with Section 1407) of Title 10 of Part 2, relating to the disposal of stolen or embezzled property. Property subject to this section shall be considered stolen or embezzled property for the purposes of that chapter, and prior to being disposed of, shall have an identification mark imbedded or engraved in, or permanently affixed to it.
    (c) This section does not apply to those cases or instances where any of the changes or alterations enumerated in subdivision (a) have been customarily made or done as an established practice in the ordinary and regular conduct of business, by the original manufacturer, or by his or her duly appointed direct representative, or under specific authorization from the original manufacturer.



    The memo is also WRONG when it says "PC 12090 Tampering with marks on firearms. It is illegal to possess a firearm in which the serial number has been altered, COVERED, or obliterated. (FEL)

    Nowhere is 12090 do you see the term "covered". You do see the following terms used:
    Changes
    Alters
    Removes
    Obliterates

    The one thing all these terms have in common is that they are all permanent attempts to keep the firearm from being identified.

    Taping Over the serial number does not change the number.
    Taping Over the serial number does not alter the number.
    Taping Over the serial number does not remove the number.
    Taping Over the serial number does not obliterate the number.

    12090. Any person who changes, alters, removes or obliterates the name of the maker, model, manufacturer's number, or other mark of identification, including any distinguishing number or mark assigned by the Department of Justice on any pistol, revolver, or any other firearm, without first having secured written permission from the department to make such change, alteration or removal shall be punished by imprisonment in the state prison.
    Yes you are correct. for that specific violation, they are basically telling their officers to make an arrest under 12090 when in fact they are only violating 537e. Someone needs to email the guy who created this memo and let them know. Good find!



    Edit: So now it looks like whenever we buy a gun we should only agree to buy that gun if the original manufacturer sends us "specific authorization" by email or letter that we are allowed to cover up that serial number with a piece of tape... then we will not be able to be charged with anything :celebratebut good luck having the manufacturer send you this authorization.

    c) This section does not apply to those cases or instances where any of the changes or alterations enumerated in subdivision (a) have been customarily made or done as an established practice in the ordinary and regular conduct of business, by the original manufacturer, or by his or her duly appointed direct representative, or under specific authorization from the original manufacturer.

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    What I don't understand is how they can tell me that I can't do with my personal property what I wish. . .

    And the idea that if my iPod falls on the ground and the serial number is then removed or obliterated I am guilty of a crime? It seems to me that this is nothing more than a PC to charge a criminal with stolen property with a crime.

    Oh, and the manufacturer would probably say something like. . . I don't care if you put tape over your guns serial number! It's your gun!

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    Theseus wrote:
    What I don't understand is how they can tell me that I can't do with my personal property what I wish. . .

    And the idea that if my iPod falls on the ground and the serial number is then removed or obliterated I am guilty of a crime? It seems to me that this is nothing more than a PC to charge a criminal with stolen property with a crime.

    Oh, and the manufacturer would probably say something like. . . I don't care if you put tape over your guns serial number! It's your gun!
    lol true, I think we should update the "new to oc" thread/videos etc to have any person contact the manufacturer and obtain an email allowing a hot glue gun of plastic over the serial number.

    and your ipod example is very interesting. I doubt that would hold up in court if charged under that circumstance though

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    Founder's Club Member MudCamper's Avatar
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    Given the traffic yesterday's KTVU story will generate, BTT.

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    MudCamper wrote:
    Given the traffic yesterday's KTVU story will generate, BTT.
    Can't figure out how to embed it:
    http://www.youtube.com/watch?v=mKSPQlSFtZs

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    N6ATF wrote:
    MudCamper wrote:
    Given the traffic yesterday's KTVU story will generate, BTT.
    Can't figure out how to embed it:
    http://www.youtube.com/watch?v=mKSPQlSFtZs
    It's been removed I suspect for forum bandwidth or security issues?

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    cato wrote:
    N6ATF wrote:
    MudCamper wrote:
    Given the traffic yesterday's KTVU story will generate, BTT.
    Can't figure out how to embed it:
    http://www.youtube.com/watch?v=mKSPQlSFtZs
    It's been removed I suspect for forum bandwidth or security issues?
    Maybe. I thought I saw it here before, but WowBB documentation isn't great, so I give up if I can't figure it out within a couple of edits.

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