Does AB 1934 give police the tools to enforce it?

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There are a variety of exceptions to the proposed 12037 section which grants some people to have the right to UOC while others cannot (Animal Farm anyone?). One of these exceptions is for current and retired police officers, another exception is for people granted permission to do so by a school superintendent while in a school zone.

Lets run through a hypothetical scenario where AB 1934 is law...

I'm unloaded open carrying in San Francisco when a police officer approaches me to investigate why I am open carrying. He asks me why I am carrying a firearm and I choose to remain silent. Does he has RAS detain me at this point? I would say he doesn't. He can ask me for identification, but I cannot be compelled to produce any. He can ask if I am a police officer or if I have the superintendent's permission to be carrying, but I cannot be compelled to answer. Let's say he performs a 12031(e) check to see if I'm carrying loaded or not, and he sees that I am UOCing. What can he do that gives him a case against me?

He cannot arrest me since openly carrying a weapon isn't patently unlawful in California (a la Ubiles). If he illegally runs the firearm's serial number he gains only the name of the owner, and not necessarily my name. If I am carrying sterile carry (which I always do), then he cannot illegally search me for my identification. Even if he gets my ID, that doesn't help him determine if I am an exception to 12037.

Lets say he arrests me for violating 12037. Even during the trial I am innocent until proven guilty (in theory at least). Can they prove that I am subject to 12037? They might be able to. But can they prove that the police officer had PC to arrest? I don't believe so. The arresting officer would have to determine my identity and determine if I was subject to 12037 in a short time period. As long as I was sterile carrying, the first task would be impossible to accomplish.

If I am illegally arrested without PC, I believe all evidence gathered from the arrest is inadmissible in court, and the prosecutor has no case. If the preceding statement isn't true though, then 12037 would have teeth providing that a system exists which could determine if a person was in the list of exceptions or was not.

Thoughts?

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That would be nice, but it won't work that way.

Think of the same scenario you propose but substitute 12025 for 12037. You get 'caught' with a concealed pistol. JohnnyLaw doesn't know it, but you're exempt as a properly credentialed exceptions as a retired LEO under 12027. CCW "isn't patently unlawful" and you choose not to show him your exception...you get arrested

The exceptions are an affirmative defense to the charge.

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Post-AB1934 the penalties for carrying an unloaded handgun are the same as those for carrying a loaded one, and you can't be charged with both 12031 and 12037. If I am going to engage in civil disobedience and get arrested for carrying a gun, that gun will damn well be loaded. AB1934 is a silly law but it is not worth anyone's time, at least not after it passes, when the real target is 12031 a.k.a. the Mulford Act. That law is the true infringement on our rights, and has been for the last four decades.

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Bigtoe, all I know is in a system where my inalienable rights are being taken by the threat of violence and in some cases actual violence, I'd be willing to go to jail to try out this line of logic

I'm also up for some non-compliance and a good old fashioned 'Don't-Taze-Me-Bro' fun!

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wewd wrote:

Post-AB1934 the penalties for carrying an unloaded handgun are the same as those for carrying a loaded one, and you can't be charged with both 12031 and 12037. If I am going to engage in civil disobedience and get arrested for carrying a gun, that gun will damn well be loaded. AB1934 is a silly law but it is not worth anyone's time, at least not after it passes, when the real target is 12031 a.k.a. the Mulford Act. That law is the true infringement on our rights, and has been for the last four decades.

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I definitely understand where you're coming from. But if the proposed 12037 doesn't have teeth, and 12031(e) has teeth, then you're bound to be tried and sentenced to violating 12031. That is, unless you are going to pull the same logic in claiming that the police officer performing the 12031(e) check hadn't first verified that 12031 applied to you, and hence the evidence of the loaded weapon can be suppressed.

mjones: I can understand what you're saying if we can find a case where an individual was stopped for 12025, remained silent, and was arrested for 12025 (and nothing else). I can't find any law that says that a CCW holder has to present his license if demanded to do so by a LEO. Does that law exist? Let's say it does, and I'm stopped and found to have a concealed weapon but I don't present my CCW. Am I violating 12025? No. Am I violating whatever law (if it exists) that says I have to present my CCW? Yeah.

I really feel that this all goes back to Ubiles though. Granted, it isn't a SCOTUS decision, but the logic there seems to go along with my reasoning. AB 1934 doesn't make open carry patently illegal, it gives a whole lot of exceptions. One of those is that school superintendent exception, another is being a police officer, either current or retired. We can therefore unequivocally state that if a police officer sees a person openly carrying a firearm (assuming AB 1934 becomes law), that that officer can merely perform the 12031(e) check and nothing else. He has no reason to suspect that any criminal activity is afoot, and he has no reason to think the armed individual is currently dangerous (part of Terry's "armed and dangerous" requirement for a pat down). He must let the armed person continue on his way or engage in a consensual encounter where the silence of the individual will foil any attempts to discover illegal activity.

What mjones says is applicable though. If you are caught doing something illegal while UOCing, the additional charge of violating 12037 would be easy to add on providing that they can adequately determine if a person is entitled to being an exception or not. The prosecution would have ample time to determine this and the fourth amendment and case law wouldn't be there to protect you.

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bigtoe416 wrote:

mjones: I can understand what you're saying if we can find a case where an individual was stopped for 12025, remained silent, and was arrested for 12025 (and nothing else). I can't find any law that says that a CCW holder has to present his license if demanded to do so by a LEO. Does that law exist? Let's say it does, and I'm stopped and found to have a concealed weapon but I don't present my CCW. Am I violating 12025? No. Am I violating whatever law (if it exists) that says I have to present my CCW? Yeah.

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No, that's not how it would go down.

There is no law (that I'm aware) which requires presentation of a 12050 license.

If you are carrying concealed, get made and remain silent. You will likely get arrested and booked for CCW.

CCW is generally illegal unless you can 'convince' they LEO that you have an exception. I know there has even been at leastone case where a LEO confiscated a firearm (and arrested?) from someone (a lawyer?) carrying on a reciprocal permit because the LEO 'couldn't verify they validity' I even seem to remember it being upheald on appeals. I wish I could remember more about this case...I think it was in the last year in the North East-ish area.

So,if AB1934 becomes law, open carry of a firearm (loaded or not) in an incorporated area will become generally illegal. So unless you can 'convince' a LEO that you have some form of 12037 exception, you can be arrested and booked on the violation.

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mjones wrote:

So,if AB1934 becomes law, open carry of a firearm (loaded or not) in an incorporated area will become generally illegal. So unless you can 'convince' a LEO that you have some form of 12037 exception, you can be arrested and booked on the violation.

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I'll cite Delaware v. Prouse here in refuting this. This case covers the constitutionality of pulling a driver over solely for the purpose of checking his driver's license. There are obvious parallels here:

It is illegal to drive in California without having a valid driver's license, but police cannot stop and check a driver's license solely for the purpose of verifying that a person is driving legally.
Similarly, today it is illegal to carry concealed in California without a valid concealed weapon permit, but I would argue that a police officer cannot detain a person solely for the purpose of verifying that the person is carrying legally.
If AB 1934 passes, it will be illegal to open carry unless you are one of the exceptions. But under Prouse I cannot see how it would be constitutional for a police officer to detain a person solely for the purpose of verifying that the person is carrying legally.

Prouse held that

Except where there is at least articulable and reasonable suspicion that a motorist is unlicensed or that an automobile is not registered, or that either the vehicle or an occupant is otherwise subject to seizure for violation of law, stopping an automobile and detaining the driver in order to check his driver's license and the registration of the automobile are unreasonable under the Fourth Amendment.

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Florida v. J.L. held that

This Court also declines to adopt the argument that the standard Terry analysis should be modified to license a "firearm exception," under which a tip alleging an illegal gun would justify a stop and frisk even if the accusation would fail standard pre-search reliability testing.

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Since there isn't a firearm exception to Terry, and since police lack the ability to detain a person to see if a license has been obtained for a given activity, I still believe police lack the authority to enforce 12037 if it becomes law.

Problems with my argument include the hypothetical where a person is arrested for an unrelated crime while open carrying. My argument also fails if there is a case in existence that allows police to detain a person in order to determine if that person is licensed for a particular activity.

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I think you're right BigToe - ultimately its going to come down to determining a standard of reasonable suspicion as defined by the courts. Which really sucks as that probably means multiple people getting arrested first