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Thread: Open Carry Near School Issue

  1. #1
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    My house's backyard shares a fence with my old highschool. Does the "Within 1000' of a school" law overrule my ability to OC on my property? Or does my property not guarantee me any protection?


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    You would probably be safe in your house and backyard, but your front yard is dicey unless it's fenced and has a no trespassing sign up.

    Look up the case of Thesus. Charged and convicted for UOC on private property (at a laundrymat), despite having no knowledge of proximity to a school. If they can get you for private property at all, then the front yard could potentially be a hazard if the general public can just walk on, since there is now case law they can point to disregarding the private property exclusion.

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    read all of626.9 PCfyi

    snip...

    626.9. (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.
    (2) When the firearm is an unloaded pistol, revolver, or other
    firearm capable of being concealed on the person and is in a locked
    container or within the locked trunk of a motor vehicle.
    This section does not prohibit or limit the otherwise lawful
    transportation of any other firearm, other than a pistol, revolver,
    or other firearm capable of being concealed on the person, in
    accordance with state law...

    Make sure your "private property" is fully enclosed by a fence or similar barrier until "private property" is better defined. (search at calguns.net for 'Theseus' issues or pm him here for a better understanding of some of the GFSZ issues)

    Also read 12026 PC regarding open/concealed carry on your property. You should also be familiar with 12031 PC and it's case law.

    I would recommend sadly for you to conceal carry for now to avoid many of the pitfalls related to 626.9 until things are fleshed out better in the upcoming 2A civil lawsuits.

    Also be advised based on the writting of this law (all guns are illegal)you can be detained, arrested,and or charged until you prove your exemption.

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    Ha, beat ya to the 'Theseus'!

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    NightOwl wrote:
    Ha, beat ya to the 'Theseus'!
    Yes, but I posted a link and used spell check :P.

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    ++++++

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    Don't bother me with details, lol.

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    NightOwl wrote:
    You would probably be safe in your house and backyard, but your front yard is dicey unless it's fenced and has a no trespassing sign up.

    Look up the case of Thesus. Charged and convicted for UOC on private property (at a laundrymat), despite having no knowledge of proximity to a school. If they can get you for private property at all, then the front yard could potentially be a hazard if the general public can just walk on, since there is now case law they can point to disregarding the private property exclusion.
    AFAIK, Theseus' case is not case law.
    "Why should judicial precedent bind the nation if the Constitution itself does not?" -- Mark Levin

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    coolusername2007 wrote:
    NightOwl wrote:
    You would probably be safe in your house and backyard, but your front yard is dicey unless it's fenced and has a no trespassing sign up.

    Look up the case of Thesus. Charged and convicted for UOC on private property (at a laundrymat), despite having no knowledge of proximity to a school. If they can get you for private property at all, then the front yard could potentially be a hazard if the general public can just walk on, since there is now case law they can point to disregarding the private property exclusion.
    AFAIK, Theseus' case is not case law.
    Totally agree Cool! Let's not concede this because of one local judge's poor decision! Recognize this could happen to you, but it's only unlawful now in that judges jursidiction.
    Clinging to God & Guns: The Constitution Restoration Project

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    What it is, if one followed the legal drama, is a realization of the tools the prosecution has within Ca's criminal courts to nail you to a wall. I would advise against going near that wall until we have the tools to have a door open when you get there to pass through it unharmed.

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    cato wrote:
    What it is, if one followed the legal drama, is a realization of the tools the prosecution has within Ca's criminal courts to nail you to a wall. I would advise against going near that wall until we have the tools to have a door open when you get there to pass through it unharmed.
    Is it unlawful to possess a handgun on private property not a part of the school grounds but within the school zone, and the possession of the handgun is otherwise lawful? Is it a miscarriage of justice for a judge to not allow the use of this provision of the law as a defense? Did Theseus break the law?
    Clinging to God & Guns: The Constitution Restoration Project

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    Sons of Liberty wrote:
    cato wrote:
    What it is, if one followed the legal drama, is a realization of the tools the prosecution has within Ca's criminal courts to nail you to a wall. I would advise against going near that wall until we have the tools to have a door open when you get there to pass through it unharmed.
    Is it unlawful to possess a handgun on private property not a part of the school grounds but within the school zone, and the possession of the handgun is otherwise lawful? Is it a miscarriage of justice for a judge to not allow the use of this provision of the law as a defense? Did Theseus break the law?
    According to the judge and jury, yes.

    He was disallowed the 'private property' exemption because the pp was open to the public dispite the different language used in 626.9from 12031.


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    cato wrote:
    Sons of Liberty wrote:
    cato wrote:
    What it is, if one followed the legal drama, is a realization of the tools the prosecution has within Ca's criminal courts to nail you to a wall. I would advise against going near that wall until we have the tools to have a door open when you get there to pass through it unharmed.
    Is it unlawful to possess a handgun on private property not a part of the school grounds but within the school zone, and the possession of the handgun is otherwise lawful? Is it a miscarriage of justice for a judge to not allow the use of this provision of the law as a defense? Did Theseus break the law?
    According to the judge and jury, yes.

    He was disallowed the 'private property' exemption because the pp was open to the public dispite the different language used in 626.9from 12031.
    I don't believe Theseus broke the law. I believe that the judge legislated from the bench and did not allow the jury to hear the issues of law. The judge decided the case before the case was brought before the jury! This effectively resulted in a trial without the right to argue a defense and without the right to a jury decision.

    Judges like this one have created a system where the common man has no expectation of justice!
    Clinging to God & Guns: The Constitution Restoration Project

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    Oh, that's a shame.

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    The Thesus situation hung on the fact that the private property was a parking lot open to the public. A wrong determination made by a judge who wants to be a legislator.

    626.9 (c) Subdivision (b) does not apply to the possession of a firearm
    under any of the following circumstances:


    626.9 (c) (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.

    No mention of PUBLIC PLACE, merely a requirement that you are on PRIVATE PROPERTY to be exempted from 626.9 for loaded or unloaded carry

    In 12031 we DO find "public place" but 12031 is talking about LOADED firearms, which if I remember correctly Thesus did not have.

    12031 (a) (1) 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.

    But 12031 also grants exemptions.

    12031 (h) Nothing in this section shall prevent any person engaged in any lawful business, including a nonprofit organization, or any officer, employee, or agent authorized by that person for lawful purposes connected with that business, from having a loaded firearm within the person's place of business, or any person in lawful possession of private property from having a loaded firearm on that property.


    12031 (l) Nothing in this section shall prevent any person from having a loaded weapon, if it is otherwise lawful, at his or her place of residence, including any temporary residence or campsite.

    I do not see any conflict in the black letter law that prohibits carrying loaded on private property that you are in lawful possession of (own, rent, mom and dads, etc.) or unloaded carry on private property in a school zone - yes the judge is WRONG.

    If I am mistaken in what the LAW says, please correct me. I am in California and carrying quite often. At my mothers home, where I stay so I am therefore it is my abode during that time, I carry loaded and open on the property which is in or very close to in a school zone.

    I have the resources to fight an unlawful arrest and have no reservations about insisting on exercising my rights and privileges.
    "The Second Amendment speaks nothing to an unfettered Right". (Post # 100)
    "Restrictions are not infringements. Bans are infringements.--if it reaches beyond Reasonable bans". (Post # 103)
    Beretta92FSLady
    http://forum.opencarry.org/forums/sh...ons-Bill/page5

    Disclaimer: I am not a lawyer, nothing in any of my posts should be considered legal advice. If you need legal advice, consult a reputable attorney, not an internet forum.

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    After more close observation of the transcripts I understand what happened in my case. The judge ruled that he believed he was bound by Tapia's ruling and didn't have the power to overturn the ruling.

    After reading over the rulings more the judge seemed to try and be fair and open minded. He just didn't make what we consider the right rulings.

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    Regular Member We-the-People's Avatar
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    Well if you (Thesus) say the man wasn't trying to be a legislator I hereby retract my statement that he was.

    But I still think you got a raw deal.
    "The Second Amendment speaks nothing to an unfettered Right". (Post # 100)
    "Restrictions are not infringements. Bans are infringements.--if it reaches beyond Reasonable bans". (Post # 103)
    Beretta92FSLady
    http://forum.opencarry.org/forums/sh...ons-Bill/page5

    Disclaimer: I am not a lawyer, nothing in any of my posts should be considered legal advice. If you need legal advice, consult a reputable attorney, not an internet forum.

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    We-the-People wrote:
    Well if you (Thesus) say the man wasn't trying to be a legislator I hereby retract my statement that he was.

    But I still think you got a raw deal.
    And I don't disagree. Seeing as how I am paying the price. . . almost makes me wish I had done the crime!

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    I still can't figure out how 626.9 can be construed to apply on private property, even when it is a publicly accessible piece of private property, when 626.9 (c) (1) is sitting right there in black letter law. It just doesn't look that confusing to me.

    (c) Subdivision (b) does not apply to the possession of a firearm under any of the following circumstances:
    Code:
     (1) Within a place of residence or place of business or on 
    Code:
    private property, if the place of residence, place of business, or private
    Code:
    property is not part of the school grounds and the possession of the
    Code:
    firearm is otherwise lawful.
    "The Second Amendment speaks nothing to an unfettered Right". (Post # 100)
    "Restrictions are not infringements. Bans are infringements.--if it reaches beyond Reasonable bans". (Post # 103)
    Beretta92FSLady
    http://forum.opencarry.org/forums/sh...ons-Bill/page5

    Disclaimer: I am not a lawyer, nothing in any of my posts should be considered legal advice. If you need legal advice, consult a reputable attorney, not an internet forum.

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    It's easy. Be a judge and instruct the jury to ignore the fact that it's on private property, while denying the defense the ability to present evidence to that effect. Simple.

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    We-the-People wrote:
    I still can't figure out how 626.9 can be construed to apply on private property, even when it is a publicly accessible piece of private property, when 626.9 (c) (1) is sitting right there in black letter law. It just doesn't look that confusing to me.

    (c) Subdivision (b) does not apply to the possession of a firearm under any of the following circumstances:
    Code:
     (1) Within a place of residence or place of business or on 
    Code:
    private property, if the place of residence, place of business, or private
    Code:
    property is not part of the school grounds and the possession of the
    Code:
    firearm is otherwise lawful.
    Read People v Tapia. It was a 626.9 case where the defendant had crossed a sidewalk on his fathers property. The trial court ruled that the sidewalk was not private property because it was a public place and the appellate court overruled them saying it was still not private property, but because it was subject to an easement, not because it was a public place. In fact, in Tapia they determined that 626.9 was not to be ruled by a public places interpretation.

    This is where the judge first made the mistake in my case (other than the request to suppress the ID and information gained from it). He misunderstood the Tapia case to be controlling because he just didn't pay enough attention to the distinct but subtle difference in reasoning for the appellate to uphold the conviction in the Tapia case.

    Every decision in the Tapia case IMHO was dicta because none of it mattered. Tapia also violated 12031 which lost the protection of the 626.9(c)(2) exemption requiring that the possession be "otherwise legal".

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    Regular Member We-the-People's Avatar
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    Man the Tapia case is hosed. I'm a former Planning Commissioner (in Calif) and the sidewalk in front of your house, in almost ALL jurisdictions, is YOUR private property and the city has easement. YOU have to pay to repair it, YOU have to pay the taxes on it. In some jurisdictions the city has actually taken title to the sidewalk area. It was that way in the town I was Commissioner in. If that were the case then it would be a "public place" and not private property in any way. But, if it's merely an easement it is "private property" even though there is a publc access easement.

    If 626.9 were written differently, with "public place" rather than "private property" in the exemption, it would be a different story but that's not how it's written.

    626.9 says "private property" not "public place". The court in Tapia was headed in the right direction when they discussed the legislatures use of the term "private property" rather than "public place" in 626.9 but then somehow got all screwed up and basically made the two into the same damn thing when there is a city easement.

    That the court even addressed that "place of business" (which is almost always public access and therefore a "public place" by their interpretation) is exempted from 626.9 because of the wording used but that the sidewalk is different makes it even worse.

    BOGUS


    edit added the "place of business" para.
    "The Second Amendment speaks nothing to an unfettered Right". (Post # 100)
    "Restrictions are not infringements. Bans are infringements.--if it reaches beyond Reasonable bans". (Post # 103)
    Beretta92FSLady
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    Disclaimer: I am not a lawyer, nothing in any of my posts should be considered legal advice. If you need legal advice, consult a reputable attorney, not an internet forum.

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    Sons of Liberty wrote:
    cato wrote:
    Sons of Liberty wrote:
    cato wrote:
    What it is, if one followed the legal drama, is a realization of the tools the prosecution has within Ca's criminal courts to nail you to a wall. I would advise against going near that wall until we have the tools to have a door open when you get there to pass through it unharmed.
    Is it unlawful to possess a handgun on private property not a part of the school grounds but within the school zone, and the possession of the handgun is otherwise lawful? Is it a miscarriage of justice for a judge to not allow the use of this provision of the law as a defense? Did Theseus break the law?
    According to the judge and jury, yes.

    He was disallowed the 'private property' exemption because the pp was open to the public dispite the different language used in 626.9from 12031.
    I don't believe Theseus broke the law. I believe that the judge legislated from the bench and did not allow the jury to hear the issues of law. The judge decided the case before the case was brought before the jury! This effectively resulted in a trial without the right to argue a defense and without the right to a jury decision.

    Judges like this one have created a system where the common man has no expectation of justice!
    If you think the best thing to do is to follow in his foot steps knowing where it will get you, then go for it. Go do some laundry at the same place if you want to. But don't expect a lot of sympathy. Cato is dead on on his advice on this one.

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    We-the-People wrote:
    Man the Tapia case is hosed. I'm a former Planning Commissioner (in Calif) and the sidewalk in front of your house, in almost ALL jurisdictions, is YOUR private property and the city has easement. YOU have to pay to repair it, YOU have to pay the taxes on it. In some jurisdictions the city has actually taken title to the sidewalk area. It was that way in the town I was Commissioner in. If that were the case then it would be a "public place" and not private property in any way. But, if it's merely an easement it is "private property" even though there is a publc access easement.

    If 626.9 were written differently, with "public place" rather than "private property" in the exemption, it would be a different story but that's not how it's written.

    626.9 says "private property" not "public place". The court in Tapia was headed in the right direction when they discussed the legislatures use of the term "private property" rather than "public place" in 626.9 but then somehow got all screwed up and basically made the two into the same damn thing when there is a city easement.

    That the court even addressed that "place of business" (which is almost always public access and therefore a "public place" by their interpretation) is exempted from 626.9 because of the wording used but that the sidewalk is different makes it even worse.

    BOGUS


    edit added the "place of business" para.
    I don't like 626.9, but Tapia was correct IMO. They based private property on a pre-existing legal definition consistent with the legislative intent. They defined private property (for that set of circumstances) to be ownership of property with the right to use at the exclusion of others. In that sense of ownership, the public owns the easement since the private "owner" has no right that any other person does not have on that property.

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    If the legislature intended "private property" to exclude privately owned property that had an easement upon it they would (should) have said "public place". A sidewalk is legaly recognized almost everywhere to be "public access".

    That does not change the fact that it is (as previously pointed out in MOST jurisdictions) OWNED by a private entity.

    Considering that the legislature used "public place" in quite a few other firearms related statutes, that they used "private property" in 626.9 is significant. It is also significant to understand the intent of 626.9 which, in my opinion (though I'm not a judge) was to give law enforcement a method of helping to keep schools safer BUT that they specifically presented it as not going to infringe upon private property owners within the gun-free zones it created. The court in Tapia even went into "legislative intent" to the point of addressing correspondence from lawmakers at the time it was being debated in which the intent was stated that it would not interfere with lawful property owners rights.

    If 626.9 said "public place" then the sidewalk would be included. However, it does not say "public place" but instead says "private property". When 626.9 also provides that business, generally considered to be public access, are also exempted from the GFSZ prohibitions, that serves to stengthen the argument that "private property" does not exclude private property with public access (such as the sidewalk in front of ones own home).

    Now, if you were walking down the sidewalk and not at your own place of residence, it would be different. Still, if you were on the sidewalk in front of a friends home and were a guest there, it should not be different as you have been granted permission by the property owner.

    The same should apply to private property that is a business parking lot per the black letter of 626.9.

    Sadly, the activist judges, prosecutors, and law enforcement who don't want anyone armed are twisting black letter law to disarm the people "lawfully".

    As I read some of the case law on this issue it's apparent that even on private property that you're in danger because of case law. My mothers home has no fence along the front (nor a sidewalk)and yet there is case law to support that it is "public access" as the driveway is not gated.That is totally outside the intent of the legislature and the letter of the law. As I have the financialmeans to defend myself if necessary, I'd certainly prefer not to, I will continue to carry openly and loaded when staying there.

    My wife and I are both onboard with this and shehas instructions to NOT bail me out unless I tell her to do so. This is because I will not sign any bailment or other pre-trail release document that restricts ANY of my rights including to a fair and speedy trial, possession or carry of firearms, unreasonable search, reporting to probation officers, submitting to some class or another, etc. Which I have seen all to often as restrictions placed upon the accused as conditions of release.

    I already have my Oregon representation lined up (though it's doubtful to ever be needed here except for a civil lawsuit) but Cali is a different animule and it's difficult in a small town. Hopefully I'll have representation lined up before (if ever) I need it.

    Those of us who can must stand up to this crap. Waiting around for incoporation to happen may have us waiting until it's too late.
    "The Second Amendment speaks nothing to an unfettered Right". (Post # 100)
    "Restrictions are not infringements. Bans are infringements.--if it reaches beyond Reasonable bans". (Post # 103)
    Beretta92FSLady
    http://forum.opencarry.org/forums/sh...ons-Bill/page5

    Disclaimer: I am not a lawyer, nothing in any of my posts should be considered legal advice. If you need legal advice, consult a reputable attorney, not an internet forum.

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