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Thread: Carrying a partially concealed empty holster

  1. #1
    Anti-Saldana Freedom Fighter bigtoe416's Avatar
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    Say I'm walking around with a sweatshirt which is covering the top half of an empty holster, but a police officer can still see that I am wearing a holster. What can a police officer legally do?

    My guesses and responses:

    1. Detain you for suspicion of carrying a concealed weapon.

    Can a police officer detain you without any knowledge that you aren't permitted to carry a concealed weapon?

    2. Stop you to ask to perform an (e) check.

    Can a police officer stop you to perform an (e) check if he isn't sure a weapon is present? If I were to remain silent, what recourse would a police officer have at that point?

    3. Arrest you for a violation of PC 148.

    Maybe they'd be angry that you'd walk around with an empty holster. Maybe they would think the only reason you would do that would be to delay a police officer. I would argue that carrying an empty holster is a sign of protest over our lost second amendment rights. A prosecutor might argue that a covered holster where a bystander couldn't see that the holster was empty is not speech.

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    ive done it before got double looks but no incident looks like wtf holster but no gun?

    i did it for the reaction factor it was great....lol... mine wasent concield though i dont think there is any laws prohibiting carrying a concield holster

  3. #3
    Regular Member Decoligny's Avatar
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    bigtoe416 wrote:
    Say I'm walking around with a sweatshirt which is covering the top half of an empty holster, but a police officer can still see that I am wearing a holster. What can a police officer legally do?

    My guesses and responses:

    1. Detain you for suspicion of carrying a concealed weapon.

    Can a police officer detain you without any knowledge that you aren't permitted to carry a concealed weapon?

    2. Stop you to ask to perform an (e) check.

    Can a police officer stop you to perform an (e) check if he isn't sure a weapon is present? If I were to remain silent, what recourse would a police officer have at that point?

    3. Arrest you for a violation of PC 148.

    Maybe they'd be angry that you'd walk around with an empty holster. Maybe they would think the only reason you would do that would be to delay a police officer. I would argue that carrying an empty holster is a sign of protest over our lost second amendment rights. A prosecutor might argue that a covered holster where a bystander couldn't see that the holster was empty is not speech.
    Having a partially exposed holster would most likely give the cop the RAS that you have a gun, which, if you don't have a CCW, would be a violation of PC 12025. Thus he could investigate further by requiring you to submit to a search to ensure there is no concealed gun.

    If you did have a CCW, you would then be required to present the CCW and surrender the firearm to any law enforcement officer upon demand, so the officer would again be good to go in demanding to see if there was a concealed gun.

    Since there is no law against carrying a concealed, or partially concealed holster, the cop could be angry, but would have no legal recourse.

    As far as a DA arguing that a covered holster is not free speech, it is irrelevant, as whether it is free speech or not, it is not illegal in any manner.

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    I'm not sure it would be RAS. I'm no attorney, so I'm not sure how case law may be cited... but at one time I read a federal case for a US territory (Puerto Rico or some similar place) where the federal court said that it's only good RAS if they have some way of knowing their subject in fact does NOT have a permit to carry concealed. The court essentially said it's not suspicous to carry a concealed firearm, unless there is no possible way to do so legally.

    Sorry I have no citation... had to reformat my PC a while back and lost a boat load of case law I had bookmarked...

    The real question is: could you cite this federal case (which wasn't a SCOTUS or US District Court of Appeals decision)? Perhaps you could if you were filing a federal 1983 suit...
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    Anti-Saldana Freedom Fighter bigtoe416's Avatar
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    CA_Libertarian wrote:
    I'm not sure it would be RAS. I'm no attorney, so I'm not sure how case law may be cited... but at one time I read a federal case for a US territory (Puerto Rico or some similar place) where the federal court said that it's only good RAS if they have some way of knowing their subject in fact does NOT have a permit to carry concealed.
    Was this the Ubiles case? That's identical to the opinion in that case, but he was in the Virgin Islands.

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    Pretty sure Ubiles is the one I'm thinking of, thanks for the jogging my memory!
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  7. #7
    Regular Member Decoligny's Avatar
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    CA_Libertarian wrote:
    I'm not sure it would be RAS. I'm no attorney, so I'm not sure how case law may be cited... but at one time I read a federal case for a US territory (Puerto Rico or some similar place) where the federal court said that it's only good RAS if they have some way of knowing their subject in fact does NOT have a permit to carry concealed. The court essentially said it's not suspicous to carry a concealed firearm, unless there is no possible way to do so legally.

    Sorry I have no citation... had to reformat my PC a while back and lost a boat load of case law I had bookmarked...

    The real question is: could you cite this federal case (which wasn't a SCOTUS or US District Court of Appeals decision)? Perhaps you could if you were filing a federal 1983 suit...
    If nothing else, it would give the officer the justification to demand an 12031(e) check. This would result in the individual either saying "I have a CCW and the weapon IS loaded" and submitting to showing the officer his CCW, or the individual would say, "It's an empty holster".

    This is where the officer can demand to see a CCW if he doesn't believe that it is an empty holster. If the individual doesn't havea CCW to show, then the officer can demand to see that the holster is indeed empty, because he would then be investigating a refusal to submit to a 12031(e) check based on his assumption that there actually is a gun in the holster.

    Either way the cop IS going to determine whether or not the holster is empty.

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    Founder's Club Member MudCamper's Avatar
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    99% of the time, nobody will notice your empty holster. In this day and age of smart phones and ipods hanging off most people, your holster will be seen as something like this when noticed in passing.

  9. #9
    Anti-Saldana Freedom Fighter bigtoe416's Avatar
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    Decoligny wrote:
    If nothing else, it would give the officer the justification to demand an 12031(e) check. This would result in the individual either saying "I have a CCW and the weapon IS loaded" and submitting to showing the officer his CCW, or the individual would say, "It's an empty holster".
    I'm not too familiar with the rules of a CCW. Presumably you have to inform a peace officer that you have one if you are going to claim that certain laws don't apply to you.

    I'm just tossing ideas around here, but lets say I'm an off-duty peace officer and I'm carrying loaded and a police officer sees my poorly concealed weapon and asks to do an (e) check. I say that 12031 doesn't apply to me, and hence, he cannot perform such a check. He asks why, I say I don't have to answer such personal questions. Now what?

    It's entirely possible that I am excluded from 12031, and I don't know of any law which requires police officers to identify themselves. Based on Ubiles we can conclude that the officer asking to do the (e) check cannot arrest me because he lacks probable cause since carrying a loaded weapon isn't absolutely illegal, and by my reading of 12031, refusing an (e) check isn't absolutely illegal too, because sometimes 12031 doesn't apply.

    Say he detains me because if I'm a police officer then I'm not acting like one. That's fine, I can buy that. He starts asking for ID or for me to identify myself. I stand mute. Now the police officer has no place to go. He can't pull the serial number of my weapon because he can't check my weapon. If he does remove my sidearm from its holster, reads the serial number and determines that the owner of the firearm isn't a police officer, so what? I could be borrowing it. Even if he decides that he has PC at this point, and arrests me for 12031(e), under the exclusionary rule, he has no evidence.

    It would almost seem that any peace officer asking to do a 12031(e) check would first have to ask if 12031 applies to the person with the firearm. I can see the argument that asking if the (e) check can be performed as performing a dual function though.

    If the individual doesn't have a CCW to show, then the officer can demand to see that the holster is indeed empty, because he would then be investigating a refusal to submit to a 12031(e) check based on his assumption that there actually is a gun in the holster.
    I'm not entirely sure this is true. If I wear a shirt that says, "I am carrying a firearm and CA PC 12031 applies to me" and a cop sees me and my shirt, can he play "find the gun"? I would sincerely hope not.

    Using lessons learned from above, if the police officer asks to perform a 12031(e) check on your partially concealed holster, and you don't have a firearm on you, you can simply reply, "12301 doesn't apply to me sir". At that point, the police officer isn't sure WHY 12031 doesn't apply to you, but if he seizes you and searches for a firearm, he's violating the fourth amendment and Terry since he lacks reasonable and articulable suspicion.

    Either way the cop IS going to determine whether or not the holster is empty.
    I will agree that this is likely to be the ultimate outcome of the situation, lawful or not.

    On a somewhat related note, I found this exception in 12031:

    (5) Persons who are using target ranges for the purpose of practice shooting with a firearm or who are members of shooting clubs
    That's the entirety of the exception. It's very interesting to note that this exception doesn't say you have to be at the target range. It might be amusing, but futile, to argue that I am loaded in San Francisco because I am practicing my shooting at the nearest outdoor range. Of course, you'd have to exclaim it like you were a demigod -- "No shooting range can satisfy my amazing long distance accuracy!"

  10. #10
    Regular Member mjones's Avatar
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    bigtoe416 wrote:
    (5) Persons who are using target ranges for the purpose of practice shooting with a firearm or who are members of shooting clubs
    That's the entirety of the exception. It's very interesting to note that this exception doesn't say you have to be at the target range. It might be amusing, but futile, to argue that I am loaded in San Francisco because I am practicing my shooting at the nearest outdoor range. Of course, you'd have to exclaim it like you were a demigod -- "No shooting range can satisfy my amazing long distance accuracy!"
    No, its actually, "12031 (b) (5) Persons who are using target ranges for the purpose of practice shooting with a firearm or who are members of shooting clubs while hunting on the premises of those clubs."

  11. #11
    Anti-Saldana Freedom Fighter bigtoe416's Avatar
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    mjones wrote:
    No, its actually, "12031 (b) (5) Persons who are using target ranges for the purpose of practice shooting with a firearm or who are members of shooting clubs while hunting on the premises of those clubs."
    Yeah, you're right...my mistake. So much for, "in its entirety" right?

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