So, can I lock my firearm in a pistol safe that is in my trunk with 2 loaded magazines or would that kick-in People vs Hale as being concealed? Would the loaded magazines being locked in a seperate container violate people vs Hale? Or do I have to empty my mags before heading down the road?
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Is locked also considered concealed?
- Thread starter yawn
- Start date
dirtykoala
Regular Member
- Joined
- Jan 27, 2009
- Messages
- 644
mjones
Regular Member
Of course its concealed...but is exempt from being illegally concealed.
You can do whatever you want with magazines which have rounds in them...including putting them in the same locked container as a firearm (so long as they are no in the gun)
People v Hale doesn't enter into this at all for what you describe. You may want to examine Clark though for a clarification about what "loaded" means.
Why wouldnt people vs Hale enter into this... they stated that a concealed mag was equivalent to a concealed gun. The law specifically makes amends in certain situations for concealed guns, such as propperly being transported in a vehicle. But, it makes no such law about mags. So, concealing them according to people vs Hale would therefore then be illegal, wouldn't it? IF not, why wouldn't it be?
Thanks!
Oh, and while I am asking... a firearm can be loaded and open carried in a temporary residence or campsite, but there is no mention in 12026 (the clauses usurping the anti-concealment laws of 12025) about those places... so, would one need to openly wear his loaded firearm to sleep without covers on so as to not conceal his weapon in his campsite/hotel room.... would being inside a tent/hotel room be considered concealment in this case? In fact, even if it wasn't loaded, 12025 - 12026 makes no allotment for campsite or temporary residence... so, what would one do with his/her firearm at night? Lock it up in his/her vehicle or in his/her nightstand or something of the sorts since it is then not concealed on your person? See below for the vehicle locking up option....
12026.1 says that it is lawful to transport or CARRY a firearm in your car provided that it is locked away and...
(2) The firearm is carried by the person directly to or from any
motor vehicle for any lawful purpose and, while carrying the firearm,
the firearm is contained within a locked container.
What does lawful purpose mean? The answer to this would help answer my question above about storing the firearm in your car overnight.
But...
12026.2 appears to be a stringent restating of 12026.1. 12026.2 says that other than two instances, it is not posession but lawful transport that is legally usruping 12025 and even then the route between the two lawful places must be somewhat direct; though then at the bottom seems to open it up for 12026.1 to still be in full affect to carry. Is 12026.1's "lawful purpose" defined in 12026.2? Does 12026.2 negate the Carry function of 12026.1? If so, then one could not store their firearm in their vehicle because that would be carrying and not transporting. In fact, if this was how it is to be read, then one would be lawful to have a loaded firearm in ones hotel room, but transporting it to that room would not be lawful... which would then make having it not lawful.
Thoughts?
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Decoligny
Regular Member
People v. Hale would not come into play because if the gun is locked up, then it CANNOT be readily available for use, which is a key component to a concealed full magazine bringing about a 12025 charge.
People v. Hale essentially stated that a concealed loaded magazine in the presence of an unconcealed unloaded gun is the equivalent of having the entire gun concealed.
From People v. Hale 43 Cal.App.3d 353
[1a] On the facts of the case we conclude that Officer Price had reasonable cause to search the front seat of Hale's automobile and that consequently his discovery of contraband was an incident of a lawful search. [43 Cal.App.3d 356] The facts known to the officer at the time of the search gave him reasonable cause to suspect Hale was committing a crime, viz. unlicensed carrying of a firearm concealed in a vehicle (Pen. Code, § 12025 fn. 2). Only partial concealment of a firearm is required. (People v. Koehn, 25 Cal.App.3d 799, 802 [102 Cal.Rptr. 102]; People v. Tarkington, 273 Cal.App.2d 466, 469 [78 Cal.Rptr. 149]; People v. Linden, 185 Cal.App.2d 752, 757 [8 Cal.Rptr. 640].) One portion of the automatic pistol, the housing and barrel, was visible, and it was reasonable for the officer to suspect concealment nearby of the remaining portion of the firearm, the automatic clip and ammunition. (See Green v. State (Okla.Crim.) 489 P.2d 768.) A firearm disassembled into two or more parts, can nevertheless constitute an operable weapon within the meaning of the Dangerous Weapons Control Law. (People v. Ekberg, 94 Cal.App.2d 613, 616-617 [211 P.2d 316]; see also, State v. Ware (Fla.App.) 253 So.2d 145.)
"The carrying of concealed firearms is prohibited as a means of preventing physical harm to persons other than the offender." (People v. Jurado, 25 Cal.App.3d 1027, 1032 [102 Cal.Rptr. 498].) [2] In our opinion concealment of an essential component of a visible weapon, when done in such a fashion as to make the weapon readily available for use as a firearm, presents a threat to public order comparable to concealment of the entire firearm and falls within the prohibition of section 12025. [1b] In the light of the bizarre arsenal of weaponry Hale had installed around the driver's seat of his automobile, Officer Price had reasonable cause to suspect that a clip and ammunition for the automatic pistol might be hidden close at hand and to make a search for them.
mjones
Regular Member
Hale isn't a factor if the firearm is legally concealed (e.g. in a 'secure locked container')
Basically Hale is only a factor when a concealed magazine is in the presence of an incomplete unconcealed firearm. Not simply 'concealed mag = concealed gun'. This is based on long standing CA Case-law which strongly adheres to the concept of 'Partially Concealed' = 'Concealed'
There is a working theory that a concealed magazine in the presence of an unloaded yet complete pistol would be perfectly legal. i.e. the unloaded pistol has an empty magazine inserted...thereby denying the concept that the concealed magazine is completing the pistol.
All in all Hale is REALLY bad case-law and can likely be defeated with a good attorney and $$$ if it is ever brought into play against you.
12026(a) is indeed the exception to 12025 for your hotel room or campsite as you either 'lawfully posses' it or 'reside' there
Each of the subsections providing an exemption to 12025 are 100% separate; they do not interact nor negate each other.
Its easy to make the mistake of thinking that they interact. Simply put, they don't.
First, thanks for your time and response. Second, what evidence do you have supporting your claim that 12026.1 is spereate from 12026.2? Third, why would that matter either way? Does that negate the juxtaposition of the more stringent 12026.2 over and against the more liberal 12026.1? 12026.2 limits heavily the blanket freedom that 12026.1 seems to give. Or am I missing something here?
12026.2 would be in line with 12026.1 IF one were to read 12026.1 subsections 1 and 2 as being connected to one another. The problem is that the wording does not support that.
mjones
Regular Member
1) My Pleasure
2) They have separate numbers. In CA code a separate number indicates a separation of law unless sections explicitly state otherwise.
3) Yes, that's why the strict to/from destination requirements of 12026.2 don't apply to the exceptions in 12026.1
I wouldn't call 12026.1 "blanket freedom" - it's certainly more broad then 12026.2 in the sense that there aren't destination requirements, but it also has the constraint of requiring the involvement of a motor vehicle which. 12026.1 also requires citizenship - though that's likely defeatable in court.
I originally wrote:
TO which mjones responded:
The problem is that 12031 specifies temporary residence/campsite, and couldn't the ommission of such language be cause for a decent legal argument that 12026's statement of residence did not mean temporary residence/campsite? And what would define a temporary residence?
Then I wrote:
To which mjones responded:
Based on what have you reached your conclusion that they do not interact with each other? Why isn't 12026.2 a clarification of the lawful purpose mentioned in 12026.1?
As always, thanks so much for your time!
TO which mjones responded:
The problem is that 12031 specifies temporary residence/campsite, and couldn't the ommission of such language be cause for a decent legal argument that 12026's statement of residence did not mean temporary residence/campsite? And what would define a temporary residence?
Then I wrote:
To which mjones responded:
Based on what have you reached your conclusion that they do not interact with each other? Why isn't 12026.2 a clarification of the lawful purpose mentioned in 12026.1?
As always, thanks so much for your time!
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mjones
Regular Member
I didn't reach a conclusion, its simply the way the law works.
Sections of code are independant unless there are explicit references stating otherwise. That's why all over the codes you see very similar statements repeated a zillion times; each code stands on its own.
.1 and .2 are separate independant sections of code which offer exemptions to 12025.