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Thread: Case Law needed.

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    Exclamation Case Law needed.

    Hi all, I an looking for case law on what is considered an excessive detention for a 12031 e check? Anyone have anything on that???

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    Anti-Saldana Freedom Fighter bigtoe416's Avatar
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    According to the wording of the law, 12031(e) isn't a detention, it is an inspection. There are cases which discuss the length of a detention and when it becomes a de facto arrest though. The supreme court has never established anything below a detention, so California has been treading on thin ice with their "inspection" language for decades. If you are not free to leave or a reasonable person would conclude that you are not free to leave, then you are detained.

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    Quote Originally Posted by bigtoe416 View Post
    According to the wording of the law, 12031(e) isn't a detention, it is an inspection. There are cases which discuss the length of a detention and when it becomes a de facto arrest though. The supreme court has never established anything below a detention, so California has been treading on thin ice with their "inspection" language for decades. If you are not free to leave or a reasonable person would conclude that you are not free to leave, then you are detained.
    Do you by chance happen to have the name of any of those cases that discuss detention versus arrest? Thank you!
    Last edited by MadMadi; 10-06-2011 at 02:28 PM.

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    Anti-Saldana Freedom Fighter bigtoe416's Avatar
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    The case that introduced the idea of a detention was Terry v. Ohio, that's a must read if you haven't done so already. If an officer moves you, then you are arrested (Florida v. Royer, Dunaway v. New York, Kaupp v. Texas). Cases that deal with the length of time a detention can last before it becomes an arrest include U.S. v. Sharpe (where police succeeded in keeping a detention reasonable (in 30-40 minutes)), U.S. v. Place (where a detention became an arrest (90 minutes)). On the other hand, if you are crossing an international border you can be detained for a long period of time if you are suspected of smuggling drugs internally. I imagine that scenario is useless to you though.

    In general, if police are hurrying to get you on your way as quickly as possible, courts may look upon the detention favorably. If the police are detaining you to give you a lecture about the evils of open carry or whatever, then the courts may begin to think the detention has become an arrest. Take a look at the reasoning in the above cases for further clarity. If you're detained for 45 minutes, that may or may not be an arrest depending on the specifics revolving around the detention.

    Hope that helps.
    Last edited by bigtoe416; 10-06-2011 at 06:23 PM.

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    Newbie cato's Avatar
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    People v DeLong, CA - speaks directly to 12031 e inspections.

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    State Pioneer ConditionThree's Avatar
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    People v Delong (1970)

    http://law.justia.com/cases/californ...3d/11/786.html

    We hold that the examination permitted by Penal Code section 171e and section 12031, subdivision (c) is constitutional and does not violate the Fourth Amendment. In the first place, the examination of the weapon [11 Cal. App. 3d 792] may hardly be deemed to be a search at all. The chamber of a gun is not the proper or usual receptacle for anything but a bullet or a shell. The loading of a gun simply affects the condition of the weapon by making it immediately useful for firing. The ammunition becomes, as it were, part of the gun. There is nothing private or special or secret about a bullet. The use of the word "examine" in the statutes instead of the word "search" is not at all a devious one. In examining the weapon, the officers are not attempting to find some kind of contraband which is unrelated to the gun itself.

    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...

    ...Bearing in mind that a state is free, as Chief Justice Warren put it, "to develop its own law of search and seizure to meet the needs of local law enforcement," provided, of course, that the Fourth Amendment standard of reasonableness be not offended (Sibron v. New York, 392 U.S. 40, 60-61 [20 L.Ed.2d 917, 933-934, 88 S.Ct. 1889]), we hold that the mere examination of a weapon which is brought into a place where it is [11 Cal. App. 3d 793] forbidden to have a loaded weapon, is not unreasonable and that the statutes authorizing such examination are constitutional.
    Emphasis mine.

    A couple of points-

    1) The court indicates that the 12031(e) inspection is reasonable when one brings a firearm into an area where loaded weapons are prohibited. It can be construed that an examination in an area where loaded weapons are NOT prohibited makes such an examination UNREASONABLE. In other words, 12031(e) doesnt give probable cause for officers to demand an inspection in unicorporated areas where discharge is not prohibited by local ordinance.

    2) The court also states that a 12031(e) examination is not unreasonable because it is limited to a single purpose- to determine whether a firearm is loaded. This single purpose limitation makes any examination of the firearm beyond a loaded inspection absent any other probable cause a forth amendment infringement. To determine whether a firearm is loaded takes just seconds- less, if the firearm has a chamber flag or has an integral loaded chamber indicator.

    3) Police need probable cause (not just reasonable suspicion) to seize items in plain view. (Arizona v Hicks) While 12031 creates probable cause for an examination, peace officers must have a seperate probable cause to search the serial number to determine whether a firearm was stolen or used in a crime. This is a distinct and different purpose than a loaded inspection.
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    Anti-Saldana Freedom Fighter bigtoe416's Avatar
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    Quote Originally Posted by ConditionThree View Post
    3) Police need probable cause (not just reasonable suspicion) to seize items in plain view. (Arizona v Hicks) While 12031 creates probable cause for an examination, peace officers must have a seperate probable cause to search the serial number to determine whether a firearm was stolen or used in a crime. This is a distinct and different purpose than a loaded inspection.
    How does 12031 create probable cause?

    And on an entirely different note...

    If one reads Delaware v. Prouse, one can get an idea how the Supreme Court will rule on 12031. In Prouse an individual was pulled over without having committed a traffic infraction. A police officer spotted cannabis in the car, and arrested Prouse. The Supreme Court ruled that the initial stop was unconstitutional:

    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.
    Then later, still in the holdings:

    An individual operating or traveling in an automobile does not lose all reasonable expectation of privacy simply because the automobile and its use are subject to government regulation. People are not shorn of all Fourth Amendment protection when they step from their homes onto the public sidewalk; nor are they shorn of those interests when they step from the sidewalks into their automobiles.
    This is a somewhat similar situation to an individual carrying a firearm. Driving a car requires being licensed, but the police cannot stop selectively stop people at their discretion. Similarly, carrying a loaded weapon in CA requires an individual to meet one of the various exceptions. Is it a stretch of the imagination that the Supreme Court would classify these two activities in a similar manner, especially given that there is explicit protection of bearing arms in the constitution? There's little doubt in my mind that the conclusions drawn in Prouse will be applied when somebody gets around to challenging 12031.
    Last edited by bigtoe416; 10-08-2011 at 12:16 AM.

  8. #8
    State Pioneer ConditionThree's Avatar
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    Quote Originally Posted by bigtoe416 View Post
    How does 12031 create probable cause?

    And on an entirely different note...

    If one reads Delaware v. Prouse, one can get an idea how the Supreme Court will rule on 12031. In Prouse an individual was pulled over without having committed a traffic infraction. A police officer spotted cannabis in the car, and arrested Prouse. The Supreme Court ruled that the initial stop was unconstitutional:

    Then later, still in the holdings:

    This is a somewhat similar situation to an individual carrying a firearm. Driving a car requires being licensed, but the police cannot stop selectively stop people at their discretion. Similarly, carrying a loaded weapon in CA requires an individual to meet one of the various exceptions. Is it a stretch of the imagination that the Supreme Court would classify these two activities in a similar manner, especially given that there is explicit protection of bearing arms in the constitution? There's little doubt in my mind that the conclusions drawn in Prouse will be applied when somebody gets around to challenging 12031.
    While I realize your interrogatory is rhetorical, I will reply anyway.
    The probable cause for an officer to stop an armed individual for an inspection is a purely statutorial contrivance.

    The fulcrum on which 12031 lives or dies is not in the constitutionality of loaded check authorized by statute (ie; a forth amendment intrusion), but on whether or not Californians have the right to carry a loaded weapon outside our home. "Bear" will be fully fleshed out before we see an end to 12031. This is why those who have sought support for a premature ($5,000) lawsuit would certainly fail.

    I think the only way 12031 might be challenged as a forth amendment issue before 'bear' is recognized would be a plantiff in unincorporated territory, where discharge is not prohibited, being subject to the demand of an (e) check, is arrested as a result of a refusal to allow an officer to inspect for loaded condition.
    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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  9. #9
    Anti-Saldana Freedom Fighter bigtoe416's Avatar
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    Quote Originally Posted by ConditionThree View Post
    The fulcrum on which 12031 lives or dies is not in the constitutionality of loaded check authorized by statute (ie; a forth amendment intrusion), but on whether or not Californians have the right to carry a loaded weapon outside our home. "Bear" will be fully fleshed out before we see an end to 12031. This is why those who have sought support for a premature ($5,000) lawsuit would certainly fail.
    To be honest, I had forgot that 12031 explicitly contrived probable cause if one refuses a 12031(e) check.

    I'm not sure I agree that 12031 will only be ruled unconstitutional after the right to bear is clarified. It seems as though there are at least four distinct prongs of attack one could launch against 12031.

    1. The fourth amendment violations that take place are damning. Prouse, Terry, Ubiles, and Florida v. J.L. should be enough ammo to get the ball rolling here. While DeLong attempts to address the search of 12031, it doesn't mention the seizure. All the above cases aside from Terry have come after DeLong, so the attack on 12031 should have new ways of destroying the supposed constitutionality of the law.
    2. The creation of probable cause by not allowing an officer to seize and search you without reasonable suspicion is likely a power that the state lacks. Imagine if every law followed this reasoning. "If you chew gum on a sidewalk, and do not allow an officer to inspect this gum, then that constitutes PC for arrest." The states do not have the ability to ignore the fourth amendment and magically create RAS or PC because they said so.
    3. The obvious right to bear challenge. This likely has some issues if the challenge is brought forth today, but perhaps not. For some reason in my case, the defense never broached the idea that the right to bear didn't exist outside the home. I still have little explanation for this.
    4. My long-lost idea of 12031 being a prima facie case of discrimination.
    Last edited by bigtoe416; 10-10-2011 at 12:51 PM. Reason: fixing b0rked italics

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    Great info

    Thank you all for posting your knowledge!!

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    Goldberg v. Glastonbury may answer this question

    Search for the case of James Golbberg v. Glastonbury which will be heard at the 2nd Circuit on Nov. 21st of this year.

    You can find info in the Ct. section of this message board.

    I will post links soon.

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