Bravo Zulu to all
OMG RPD rush into the mall with eight officers and one carrying a shotgun WTF .....Bravo Zulu guys on your conduct in the mall and standing up for your rights....Loved the "Have you got enough attention remark by the SGT...he came with eight officers and a Shotgun ...purleeeease.....OC'ers are not attention seakers.....can't wait to drop by there with my AR15 over my shoulder....if AB144 goes into law ...that should have all the patrons being scared .....pah!!! RPD huge Fail....read your own OC memo
All California law enforcement personnel should be aware of the following firearms laws in c as they are confronted with a subject openly carrying a firearm.
PC 12025 (f), unloaded firearms carried openly in belt holsters are not concealed with in the meaning of section 12025.
PC 12025 only applies to concealable firearms, which is defined in PC 12001 (a) as a pistol, revolver or firearms with a barrel less than 16 inches in length. There is nothing prohibiting someone from carrying an unloaded, concealed rifle or shotgun on their person or in their vehicle unless the barrel in less than 16 inches.
PC 12031 (g), A firearm shall be deemed to be loaded for the purposes of this section when there is an unexpended cartridge or shell in, or attached in any manner to, the firearm, including, but not limited to, in the firing chamber, magazine, or clip thereof attached to the firearm. **Case law now states the ammunition must be in a position from which it can be fired. People vs. Clark (1996) 45 Cal. App. 4th 1147.
PC 12031 (e), in order to determine whether or not a firearm is loaded for the purpose of enforcing this section, peace officers are authorized to examine any firearm carried by anyone on his or her person or in a vehicle while in any public place or on any public street in an incorporated city or prohibited area of an unincorporated territory, Refusal to allow a peace officer to inspect a firearm pursuant to this section constitutes probable cause for arrest for violation of this section.
PC 626.9, Any person who possesses a firearm, whether loaded or unloaded, in or on the grounds of a public or private school for kindergarten to grade 12, or within 1000 feet of the school, without written permission of the proper school authority or on the grounds of a public or private university or college.
If this Open Carry movement expands, not all people wishing to exercise their Open Carry rights will be as well educated as those actively engaged in the open carry movement. As a society, we could end up with citizens who are not as well informed, make assumptions about the law, and for personal reasons are more hostile to law enforcement encounters. There are many other scenarios that could occur at equally dangerous venues. A deputies knowledge of the law could be very useful in defusing the situation.
EXAMPLE: An example would be where a person is Open Carry legally and then out of ignorance of the law goes to pick up their child at school on violation of PC 626.9. Someone at the school calls 9-1-1 and reports an armed subject on the school grounds. A deputy responds and encounters the Open Carry parent on campus who incorrectly claims their right to Open Carry anywhere and the parent becomes defiant because they believe they understand the law, the parent refuses to let the deputy inspect the gun to see whether or not it is loaded as required by PC 12031 (e); even though the mere possession of an unloaded gun on campus is a violation of PC 626.9.
PC 12031 BACKGROUND: The history of Penal Code 12031 is helpful in understanding this issue. Prior to 1967, it was lawful in California for an adult, not otherwise prohibited from possessing a firearm, to carry a loaded firearm in plain view in public and in an incorporated city. Only the carrying of a concealed firearm was proscribed. However, early in May of 1967, a group of Black Panthers marched into the California legislature fully armed. This action resulted in the Legislature enacting Penal Code 12031, effective July 28, 1967, thereafter proscribing the carrying of a loaded firearm in public, even if not concealed, illegal.
With that background in mind, it is noted the Penal Code 12031 provides in pertinent part that:
(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. (Emphasis added)
Subdivision (g) of 12031 provides that:
A firearm shall be deemed to be loaded for the purposes of this section when there is an unexpected cartridge or shell, consisting of a case that holds a charge of powder and a bullet or shot, in, or attached in any manner to, the firearm, including, but not limited to, in the firing chamber, magazine, or clip thereof attached to the firearm; except that a muzzle-loader firearm shall be deemed to be loaded when it is capped or primed and has a powder charge and ball or shot in the barrel or cylinder. (Emphasis added)
While Penal Code 12025 addresses carrying a concealed firearm, subdivision (f) of that statute expressly declares that "Firearms carried openly in blet holsters are not concidered concealed within the meaning of this section." The firearm does not become "loaded" for purposes of a violation of 12031 if there is a loaded magazine or other carry of ammunition close at hand.
Here, the situation presented is of an adult person carrying an unloaded firearm in plain view in public. While there is ammunition close at hand for said firearm, the ammunition is not attached to the firearm. Even if the ammunition was, for instance, taped to the side of the firearm, it is questionable whether this would constitute "loading" of the firearm in light of the holding in People v. Clark, (1996) 45 Cal. App. 4th 1147, 1152, where the court of appeal, dealing with the question of whether the defendant had committed the offence of possession of methamphetamine while armed with a loaded, operable firearm, held that:
Under the commonly understood meaning of the term "loaded," a firearm is "loaded" when a shell or cartridge has been placed into a position from which it can be fired; the shotgun is not "loaded" if the shell or cartridge is stored elsewhere and not yet placed in a firing position. The shells here were placed in a separate storage compartment of the shotgun and were not yet "loaded" as the term is commonly understood.
CONFLICTS WITH LOCAL ORDINANCE: Local ordinances are able to close this gap by, making it a violation of a city's municipal code to carry an unloaded and unconcealed firearm in public. In this regard, please note Article XI §7 of the California Constitution, provides that:
A county or city may make and enforce within its limits all local, police, sanitary, and other ordinances and regulations not in conflict with general laws.
Peace Officers may rely upon 12031(e), which provides that:
In order to determine whether or not a firearm is loaded for the purpose of enforcing this section, peace officers are authorized to examine any firearm carried by anyone on his or her person or in any vehicle while in nay public place or on any public street in an in corporated city or prohibited area of an unincorporated territory. Refusal to allow a peace officer to inspect a firearm pursuant to this section constitutes probable cause for arrest for violation of this section.
OTHER FEDERAL AND STATE RESTRICTIONS: California selectively prohibits possession of firearms. Prohibitions generally apply to drug addicts and those convicted of felonies and specified misdemeanors, or subject to probation orders or restraining orders that prohibit possession (PC 12021, 12021.1), and those with histories of making deadly threats or receiving mental treatment for dangerous proclivities (W&I 8100, 8103). Minors may not generally possess concealable firearms (PC 12101).
In addition, individuals generally may not possess firearms in certain places, such as public buildings (PC 171b), airport and passenger vessel terminal "sterile areas" (PC 171.5), or on the ground or within 1000 feet of a public or private school, or on a college campus or property (PC 626.9). Possession during specified crimes increases the punishment (Exs: PC 12021.5, 12022, 12022.3, 12022.5, 12023 and 12024).
Other restrictions are you cannot carry in a National Park (36 CFR 2.4 (a)) or in a State Park (CCR Title 14, Div 3, Chap 1 s4313 (a)); however firearms may be possessed within temporary lodging or a vehicle when unloaded and packed, cased, or stored in a manner that will prevent their ready use" and you cannot carry on U.S. Postal Service property (39 CFR 232.1(I)).
It is also generally unlawful to carry a loaded firearm (whether concealed or not) in a public place in incorporated cities and in prohibited areas of unincorporated territory (PC 12031). Because "prohibited area" includes any place where it is unlawful to discharge a firearm, this includes all Public streets (PC 12031 (e)). If the serial number of the weapon comes into plain view during inspection, it may be noted and run against data bases. Arizona v. Hicks (1987) 480 US 321, 324. The incidental detention of the armed individual justifies a demand for ID, allowing age verification and database check for information about any disqualification to possess firearms. Hiibel v. Sixth Judicial District (2004) 543 US 177, 187.
Per PC 12031 (g) (also for H&S 11370.1 -possession of certain drugs while armed with a loaded firearm, and for PC 12035 - Criminal storage), a firearm is "loaded" if there is matching ammunition in or attached to the weapon in such a way that it can be fired. People v. Clark (1996) 45 Cal. App. 4th 1147. Under this definition, neither PC 12025 nor 12031 is violated merely because a person openly carrying an unloaded firearm on a belt holster has matching ammunition on him, or close at hand. (Contrast: PC 171c and 171d - "loaded" at the state capitol/offices and governor's mansion, and 12023 - "loaded" with intent to commit a felony, all of which define "loaded" as being in possession of the firearm and matching ammunition; F&G 2006 - "loaded" rifle or shotgun in a vehicle on a public road, requires chambered shell).
HOW DOES THIS AFFECT OUR AGENCY?
Presentation of an individual walking down the street carrying a pistol in a holster raises obvious tactical issues, as well as safety concerns for both officers and the public. Other than to note these safety and tactical issues, we would urge that officers be alerted of this issue, that there is a possibility that they may encounter this behavior, and that they should be prepared to appropriately respond.
Field personnel should be made aware of the current state of the law as set forth in this Training Bulletin and cautioned that this is not behavior warranting arrest, but that that they are legally entitled under 12031(e) to demand inspection of any such firearms in order to ascertain that the weapon is unloaded. If the firearm is unloaded, it should be returned and the subject released to go about his/her lawful business. Of course, if the firearm is loaded - as defined above - then an arrest is appropriate. Any refusal to allow inspection of the firearm constitutes cause for immediate arrest for violation of 12031.
BOTTOM LINE; Police may stop a person who is openly carrying a firearm in a belt holster and may inspect to see if the firearm is loaded. Prompt incidental checks on the person and the weapon may provide probable cause for arrest; however, the person may not be arrested for violating PC 12031 if ammunition is not in nor attached to the weapon so as to allow it to be fired, even though the person may have access to matching ammunition.
