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Thread: Read This!

  1. #1
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    Read This!

    Discuss the validity(is that a word?)OPEN CARRY.pdf

  2. #2
    State Pioneer ConditionThree's Avatar
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    Quote Originally Posted by TopSnake View Post
    Discuss the validity(is that a word?)OPEN CARRY.pdf
    I have spotted a couple of incorrect conclusions...

    The Alameda County District Attorney's Office claims that a person who refuses to identify may be arrested for obstruction, citing Hibel- however, there is no stop and identify statute in California.

    The DA's office also mistakenly applies "Terry" stop conditions upon open carry situations where they most often do not apply. Mere possession of a firearm is not reasonable suspicion that a crime is being or about to be commited-- Police must be investigating a crime in order to invoke "Terry".

    The introduction of PC833.5 changes NOTHING if the officer cannot articulate an offense for which they can justify a detention.

    I quote:

    For purposes of this section "reasonable cause to detain" requires
    that the circumstances known or apparent to the officer must include
    specific and articulable facts causing him or her to suspect that
    some offense relating to firearms or deadly weapons has taken place
    or is occurring or is about to occur and that the person he or she
    intends to detain is involved in that offense
    . The circumstances must
    be such as would cause any reasonable peace officer in like
    position, drawing when appropriate on his or her training and
    experience, to suspect the same offense and the same involvement by
    the person in question.
    I believe this could be their strategy to unlawfully detain open carriers and seize weapons for disposal as a 'nuisance'. Fortunately, we havent seen any action taken to deprive someone of their property using this PC.

    The only authority the police have to detain an open carrier is 12031(e)- and only to inspect for loaded condition.

    The DA also makes a mistake with searching serial numbers. While they can look if it is plain view to ensure it was not obliterated, they have no cause to run the S/N for wants unless they, once again, are able to articulate a crime, particularly a report of the firearm being stolen.
    Last edited by ConditionThree; 01-05-2011 at 01:09 AM.
    New to OPEN CARRY in California? Click and read this first...

    NA MALE SUBJ ON FOOT, LS NB 3 AGO HAD A HOLSTERED HANDGUN ON HIS RIGHT HIP. WAS NOT BRANDISHING THE WEAPON, BUT RP FOUND SUSPICIOUS.
    CL SUBJ IN COMPLIANCE WITH LAW


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  3. #3
    Anti-Saldana Freedom Fighter bigtoe416's Avatar
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    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.
    The lack of logic here is amazing. How this person can even form coherent sentences is beyond me. By this logic since yelling "fire" in a theater is not protected speech, meaning the right to free speech is "not unlimited" then any law restricting speech is constitutional. Sheer genius.

    For one thing, it is apparent that officers may detain any person who is carrying a handgun in a public place—even if he appears to be an upstanding citizen.
    Fascinating. This only flies against numerous court cases such as Florida v. J.L., U.S. v. Ubiles, and Terry v. Ohio.

    If the person appears to be a minor, they may seek to determine if he is violating Penal Code § 12101 which prohibits possession of concealable firearms by minors.
    Good luck with that. You can seek to determine by asking, but beyond that you're powerless.

    The more difficult—and currently unresolved— question is whether officers who have detained a person for the sole purpose of determining whether his possession of a firearm is lawful are permitted to do the things they normally do in the course of detentions, especially the following:

    DETERMINE AND CONFIRM ID: Officers have a legal right to determine and confirm the identity of every person they detain. As the court observed in People v. Loudermilk, “Without question, an officer conducting a lawful Terry stop must have the right to make this limited inquiry, otherwise the officer’s right to conduct an investigative detention would be a mere fiction.” This is also the view of the Supreme Court which pointed out that “[o]btaining a suspect’s name in the course of a Terry stop serves important government interests. Knowledge of identity may inform an officer that a suspect is wanted for another offense, or has a record of violence or mental disorder.”
    Slippery slope argument here. 12031(e) only allows for an inspection, here they speak of detainment. "What crime am I suspected of committing officer?" None? Well I'll be on my way then.

    ARREST FOR REFUSAL TO ID: If the detainee refuses to identify himself, officers may ordinarily arrest him for willfully delaying or obstructing.
    Even assuming I was detained for something legit, California doesn't have a stop and identify statute, so the citation to Hiibel is worthless.

    PAT SEARCH: Under current law, officers who reasonably believe that a detainee is armed with a firearm may conduct a pat search to determine if he possesses any other weapons.
    Buzzzz. Wrong. The officer must believe that the individual is armed AND dangerous. The footnote here gets it right.

    RUN RAP SHEET: When officers detain a person who possesses a handgun, they may ordinarily check the detainee’s criminal history to determine if he is a felon and is therefore in violation of Penal Code § 12021(a)(1).
    The citation here is also garbage. Vongxay was about a guy who was outside a club and acting like he was concealing a weapon and was attempting to get away from approaching officers. When they found the concealed weapon on him he didn't have a CCW permit, so he was already in violation of a law. At that point the officers could do whatever they wanted. Vongxay wasn't detained after the officers found the firearm, he was under arrest. This argument flies in the face of the fact that police cannot pull people over to see if they have a license.

    CHECK SERIAL NUMBER: Officers who have temporarily seized a handgun may ordinarily ex- amine the weapon to determine whether the serial number is in plain view. If so, it would seem they could briefly prolong the detention to determine whether the weapon had been stolen. And, if the serial number is not in plain view, they should nevertheless be able to closely examine the weapon (i.e. “search” it) to locate the serial number for the purpose of running the serial number, and determining whether the detainee is carrying a weapon with an obliterated serial number in violation of Penal Code §§ 537e or 12094(a).
    This goes against everything in Arizona v. Hicks. If the serial number happens to come into view during an officer's lawful activity (i.e. performing a loaded status check), then he can go back to his car and run the number. He can't search your property without a warrant if you are not under arrest. He also can't detain you further while he runs the serial number.

    Most of the logic here is based on the argument that anybody carrying a firearm can be detained. This is twisted logic based entirely on a single case coming out of Massachusetts. Those who follow these suggestions of the Alameda County DA's office are likely to be sued in their individual capacity.

  4. #4
    Regular Member Gundude's Avatar
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    More Brady FUD.

  5. #5
    Regular Member mjones's Avatar
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    C3, BigToe, Excellent summary of the flaws in this article! That thing made me throw up a little

  6. #6
    Regular Member stuckinchico's Avatar
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    Has anyone written DA and informed them of their mistakes with cites??

  7. #7
    Regular Member Firemark's Avatar
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    Quote Originally Posted by TopSnake View Post
    Discuss the validity(is that a word?)OPEN CARRY.pdf
    Re-read this paper replacing all references to weapons, serial numbers, loaded with references to cars, Vin numbers, and fueled.

    Seeing as death from automobiles is nearly the same as from firearms...

    FUD
    New to OPEN CARRY? Click here first

    "Gun owners in California in 2011 are like black people in the south in 1955. If you don't understand that then your concepts of fighting for gun rights is just tilting at windmills." Gene Hoffman.

    "Why do you need to carry a gun?" ...Because it not a Bill of Needs, its a Bill of Rights!!

  8. #8
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    The LEO's are going to learn the hard way on this.

    I wonder if the Alameda DA is going to hold the LEO's hands in Federal Court who are sued for following this bulletin for civil rights violations. Seems like the DA thinks he is in Nevada. Last I heard Kalifor-i-a ain't a stop and ID state, and you can't hold someone to see of he is a felon(with a firearm)without articulating known facts. Seems the DA has not heard that police "treasure hunting" for crimes has been outlawed by the Supreme Court for many years.

  9. #9
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    Unbelievable!

    I have forgotten which Supreme Court Ruling has this quote: "...the mere presence of a legally carried firearm does not negate Fourth Amendment rights." (I think this is an accurate quote) The court went on to opine the oxymoronic logic that would allow a 4A exception for legally carried guns, which is an enumerated right.

    One civil liberty negating another? I don't think so.

    markm

  10. #10
    Regular Member hgreen's Avatar
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    Reads like a big pay-day waiting to happen for an OCer in Alameda County...

  11. #11
    Regular Member Decoligny's Avatar
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    Quote Originally Posted by ConditionThree View Post
    I have spotted a couple of incorrect conclusions...

    The Alameda County District Attorney's Office claims that a person who refuses to identify may be arrested for obstruction, citing Hibel- however, there is no stop and identify statute in California.

    The DA's office also mistakenly applies "Terry" stop conditions upon open carry situations where they most often do not apply. Mere possession of a firearm is not reasonable suspicion that a crime is being or about to be commited-- Police must be investigating a crime in order to invoke "Terry".

    The introduction of PC833.5 changes NOTHING if the officer cannot articulate an offense for which they can justify a detention.

    I quote:



    I believe this could be their strategy to unlawfully detain open carriers and seize weapons for disposal as a 'nuisance'. Fortunately, we havent seen any action taken to deprive someone of their property using this PC.

    The only authority the police have to detain an open carrier is 12031(e)- and only to inspect for loaded condition.

    The DA also makes a mistake with searching serial numbers. While they can look if it is plain view to ensure it was not obliterated, they have no cause to run the S/N for wants unless they, once again, are able to articulate a crime, particularly a report of the firearm being stolen.
    There is currently case law that states that PC 12031(e) checks are constitutional because "they are inspections, and are not DETENTIONS".

    �� DETERMINE AND CONFIRM ID: Officers have a legal
    right to determine and confirm the identity of
    every person they detain.8 As the court observed
    in People v. Loudermilk,

    They can't have it both ways. If it is only an inspection then they cannot require ID. If it is a detention then it is unconstitutional as there is no probable cause or reasonalbe suspiscion.
    Last edited by Decoligny; 01-06-2011 at 01:19 PM.

  12. #12
    Regular Member demnogis's Avatar
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    Talking

    Thank you for that re-awakening reminder Decoligny. I suppose the next time an open carrier is stopped, DETAINED and questioned, a simple reminder and citation of that case would let the present LEOs know that they are not allowed to detain you but just inspect the firearm. Anything beyond that is an UNLAWFUL DETAINMENT as there is no PC or RAS of a crime. Hunches and assumptions do not count. Of course, such a reminder should only be given when necessary.


    Quote Originally Posted by Decoligny View Post
    There is currently case law that states that PC 12031(e) checks are constitutional because "they are inspections, and are not DETENTIONS".

    􀂃 DETERMINE AND CONFIRM ID: Officers have a legal
    right to determine and confirm the identity of
    every person they detain.8 As the court observed
    in People v. Loudermilk,

    They can't have it both ways. If it is only an inspection then they cannot require ID. If it is a detention then it is unconstitutional as there is no probable cause or reasonalbe suspiscion.
    Last edited by demnogis; 01-08-2011 at 02:22 PM.
    Gun control isn't about guns -- it is about control.

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