Alameda County District Attorney and UOC

imported post

I spoke with Alameda County District Attorney Nancy O'Malley today regarding unloaded open carry. In Alameda County, her office decides whether or not a person gets charged with a crime.

In summary, she views shoulder holsters/thigh holsters as legal for UOC, legal to carry loaded magazines concealed in a pocket, needs to do research on legality of UOC while driving, will strictly hold open carriers to the 1,000 foot gun free school zone (regardless of the "reasonably should know" verbage of PC 626.9).

For more details, check out my latest blog entry:

http://adnanshahab.com/?p=443

imported post

AdnanShahab wrote:

I spoke with Alameda County District Attorney Nancy O'Malley today regarding unloaded open carry. In Alameda County, her office decides whether or not a person gets charged with a crime.

In summary, she views shoulder holsters/thigh holsters as legal for UOC, legal to carry loaded magazines concealed in a pocket, needs to do research on legality of UOC while driving

Click to expand...

Weird - People v. Knight was about LOADED guns in vehicles in unincorporated terretories - generally legal - just as unloaded open carry in vehciles in cities is generally legal.

imported post

AdnanShahab wrote:

I spoke with Alameda County District Attorney Nancy O'Malley today regarding unloaded open carry. In Alameda County, her office decides whether or not a person gets charged with a crime.

In summary, she views shoulder holsters/thigh holsters as legal for UOC, legal to carry loaded magazines concealed in a pocket, needs to do research on legality of UOC while driving, will strictly hold open carriers to the 1,000 foot gun free school zone (regardless of the "reasonably should know" verbage of PC 626.9).

For more details, check out my latest blog entry:

http://adnanshahab.com/?p=443

Click to expand...

Ha. . . Go figure. The only thing they can get us on so they will have a hard-on to get more of us. . . that way they can get the headlines "Open Carriers Endanger School Children".

imported post

News spreads like wildfire...I just ordered my holster today and will be OC'ing by the end of the week in my community in La Mirada. I've been threatened by the Los Angeles County Sheriff Dept. that I will be spread eagle on the floor if I choose open carry in this town until they determine that my weapon is unloaded. I am married and a father of 2 small children.

I wil record any and all interactions with LE on my blacberry.

People have stood by for too long and done nothing...but I will protect my 2nd Amendment Rights, protect my family, my children, neighbours, and community.

I've read the laws on transporting firearms, but I would likesomeone to confirm what I've read and "think."

I can carry a firearm through a school zone as long as it is unloaded and in a locked container (ammunition can be in the container with the gun), andI can tranport ahandgun in my car the same way (in a locked container - anywhere in the vehicle?). As long as it is in a locked container it doesn't need to be in the trunk?

Am I good on this?

THanks!

imported post

desertfox wrote:

News spreads like wildfire...I just ordered my holster today and will be OC'ing by the end of the week in my community in La Mirada. I've been threatened by the Los Angeles County Sheriff Dept. that I will be spread eagle on the floor if I choose open carry in this town until they determine that my weapon is unloaded. I am married and a father of 2 small children.

I wil record any and all interactions with LE on my blacberry.

People have stood by for too long and done nothing...but I will protect my 2nd Amendment Rights, protect my family, my children, neighbours, and community.

I've read the laws on transporting firearms, but I would likesomeone to confirm what I've read and "think."

I can carry a firearm through a school zone as long as it is unloaded and in a locked container (ammunition can be in the container with the gun), andI can tranport ahandgun in my car the same way (in a locked container - anywhere in the vehicle?). As long as it is in a locked container it doesn't need to be in the trunk?

Am I good on this?

THanks!

Click to expand...

locked container correct. This will avoid the pitfalls of passing through a school zone with an exposed weapon.

imported post

desertfox wrote:

News spreads like wildfire...I just ordered my holster today and will be OC'ing by the end of the week in my community in La Mirada. I've been threatened by the Los Angeles County Sheriff Dept. that I will be spread eagle on the floor if I choose open carry in this town until they determine that my weapon is unloaded. I am married and a father of 2 small children.

I wil record any and all interactions with LE on my blacberry.

People have stood by for too long and done nothing...but I will protect my 2nd Amendment Rights, protect my family, my children, neighbours, and community.

I've read the laws on transporting firearms, but I would likesomeone to confirm what I've read and "think."

I can carry a firearm through a school zone as long as it is unloaded and in a locked container (ammunition can be in the container with the gun), andI can tranport ahandgun in my car the same way (in a locked container - anywhere in the vehicle?). As long as it is in a locked container it doesn't need to be in the trunk?

Am I good on this?

THanks!

Click to expand...

Is your blackberry recording at all times while you are carrying a firearm?

If not, you need to get a digital recorder that does not have to be turned on after the police contact you.

If the police do contact you while you are carrying a firearm, they will not take kindly to your reaching for anything, including your blackberry. So, if it's not on already you will not have the opportunity to turn it on to record.

imported post

Below is a link to a publication on case law that the Alameda County DA puts out a few times a year. In the latest edition there is a significant article about 'Open Carry Detentions.'

Several cases are cited and I got the impression the DA supported most of the issues that are not clearly defined by case law yet. The basis of the article is a 2009 case out of Springfield, Massachusetts, Schubert v. City of Springfield. However, several other cases are cited.

Read it for yourself.


http://le.alcoda.org/publications/point_of_view/2010_editions

imported post

Interesting. . . she is suggesting, as the court did in the case. . . there is an firearms exemption to the 4th.

But this makes me wonder. . . what is the specific threshold between reasonable suspicion and not? Mere open carrying of a firearm means the officer has RS to detain you, does that mean that if you have a clear bag of a white powdery substance they can immediately search your car, or do they have to have RS that it is actually a narcotic?

If I am in a bakery truck with the white powdery substance, in this example confectionist sugar for icing. . . does that remove the RS they supposedly have?

I think the issue comes into play, how reasonable is the suspicion? There are far more legal guns than illegal, so what makes it a reasonable suspicion?

imported post

I'm going to guess the 'reasonableness' of RAS will be held to the standard established in graham v. connor (U.S. Supreme Court; Graham v. Connor, 490 U.S. 386 {1989} No. 87-6571 Argued February 21, 1989, Decided May 15, 1989)

In this case a cop thought he saw a robbery happen and they chased down the 'suspect' and force was used in the detention. Once all was settled, the guy had simply run into a quick stop to get a candy bar and then ran out cuz the line was too long. He was suffering from a diabetic issue and in a hurry for quick remedy. The cop thought it looked like a robbery and jacked the guy before asking any questions at the quick stop.

The courts ruled that 'reasonable' facts should be held to the standard of what an officer would find reasonable, not the typical citizen. This ruling was based on the assumption that many average citizens may not recognize a potential crime as quickly as an officer. Therefore, if an officer can articulate a reasonable suspicion that another officer would also find suspicious, they are good.

I'll bet cops use this standard as means of RAS when detaining UOCers.

imported post

bomb_guy wrote:

I'm going to guess the 'reasonableness' of RAS will be held to the standard established in graham v. connor (U.S. Supreme Court; Graham v. Connor, 490 U.S. 386 {1989} No. 87-6571 Argued February 21, 1989, Decided May 15, 1989)

In this case a cop thought he saw a robbery happen and they chased down the 'suspect' and force was used in the detention. Once all was settled, the guy had simply run into a quick stop to get a candy bar and then ran out cuz the line was too long. He was suffering from a diabetic issue and in a hurry for quick remedy. The cop thought it looked like a robbery and jacked the guy before asking any questions at the quick stop.

The courts ruled that 'reasonable' facts should be held to the standard of what an officer would find reasonable, not the typical citizen. This ruling was based on the assumption that many average citizens may not recognize a potential crime as quickly as an officer. Therefore, if an officer can articulate a reasonable suspicion that another officer would also find suspicious, they are good.

I'll bet cops use this standard as means of RAS when detaining UOCers.

Click to expand...

In which case it would seem to me that with the increasing encounters where OC'ers are not in fact doing anything illegal they will lose their RAS argument as they now have experienced evidence that suggests they are aware of the situation and instead are bothering us to target us and not because they have numbers to back up their suspicions.

imported post

Hey All,

In JL v. Florida, the Supremes stated that they don't buy the "firearms exception" to the 4th A.

http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=000&invol=98-1993

Also, a tenth circuit Judge (Black) disagrees with a "firearms exception." The seven police officers involved collectively paid Matthew St. John $21,000--from their personal accounts.

http://www.nmcourt.fed.us/Drs-Web/view-file?full-path-file-name=%2Fdata%2Fdrs%2Fdm%2Fdocuments%2Fndd%2F2009%2F09%2F08%2F0002561429-0000000000-08cv00994.pdf

Granted, this was the 10th Circuit; however, the 9th Circuit is not known for being LEO friendly on 4th A cases.

Terry v. Ohio is the gold standard.

It clearly defines RAS and guns in the case of Terry.

http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=392&invol=1

The lesson I am taking from Graham v. Conner[suP]1[/suP] is don't run away from LEO--ever! I once was doing culturally unacceptable things (a prank); however, my pranks were completely legal. A CHP drove by and slammed on hisbrakes and squealed to a stop. I was startled. The CHiP sat their while looking at me in his rear view mirror. I started to walk towards his cruiser. He rolled down his window, waved and drove off. I know that if I had run, he wouldhave had RAS to detain me.

If you UOC and have an encounter with LEO, stop, smile, and say "Good day Officer." Oh yea, and keep your hands away from your weapon.

Foot Note #[suP]1[/suP]: I did not read the ruling--I hope yourparaphrase was correct.

markm

imported post

bomb_guy wrote:

Below is a link to a publication on case law that the Alameda County DA puts out a few times a year. In the latest edition there is a significant article about 'Open Carry Detentions.'

Several cases are cited and I got the impression the DA supported most of the issues that are not clearly defined by case law yet. The basis of the article is a 2009 case out of Springfield, Massachusetts, Schubert v. City of Springfield. However, several other cases are cited.

Read it for yourself.


http://le.alcoda.org/publications/point_of_view/2010_editions

Click to expand...

[align=left]Alameda County DA: "Moreover, the Supreme Court has ruled that Second Amendment rights are “not unlimited,” which apparently means that all of the California statutes pertaining to handgun control are constitutional and, therefore, enforceable."[/align]

[align=left]How in the world do you jump to such a conclusion!!! This should be our first clue that the whole article is a "shoot from the hip" attempt to justify illegal action taken against the citizenry. It is filled withsuperficial references to certain out of state decisions applied haphazardly to open carry in California with unfounded conclusions concerning what and what is legal for police to do! This POV is not worth the storage space it is taking up on their server and will cause Alameda County law enforcement to conduct themselves illegally! Obviously put together by a first year law student![/align]

imported post

Wow, I just read Alameda's County DA's point of view. Wow!

She cites Delong but she fails to quotethe most important paragraph.

"But if the examination may be called a search, it is not an unreasonable one; and only unreasonable searches are forbidden by the Fourth Amendment. (Terry v. Ohio, 392 U.S. 1 [20 L.Ed.2d 889, 88 S.Ct. 1868].) It is, as we have said, limited to a single purpose. It does not have about it any except the slightest element of embarrassment or annoyance, elements overbalanced by far by the purpose of preventing violence or threats of violence. The minimal intrusion does not begin to approach the indignity of the frisk, as graphically described in Terry v. Ohio, supra, at p. 17, fn. 13 [20 L.Ed.2d at p. 903]. It is true that the frisk, as sustained in the Terry case, requires as justification something different than mere possession of a firearm in a proscribed place, but it requires a good deal less than cause for arrest."

She cites Hibel, but Nevada is a "stop and ID state." California is not a "stop and ID state."

Judge Black describes it well in his summary judgement (no trial as case law filled--defendants were denied their day in court because their actions were so egregious) (St. John v. Alamogordo NM.)

She writes that an officer can Determine and Confirm ID. She uses a Terry stop as the example; however, LEO in Terry had reasonable articulable suspicion that a crime was afoot. It is not a crime to UOC (in most places); therefore, RAS for a "Terry hot stop" does not exist.

Is she a Juris Doctor? Where did she buy her law degree from?

Arrest for refusal to ID?

Pat Search?

Run Rap Sheet?

Check Serial number?

She is justifying a fishing expedition.

markm