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Discuss the validity(is that a word?)View attachment OPEN CARRY.pdf
Discuss the validity(is that a word?)View attachment 4930
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.
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.
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.
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.
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.”
ARREST FOR REFUSAL TO ID: If the detainee refuses to identify himself, officers may ordinarily arrest him for willfully delaying or obstructing.
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.
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).
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).
Discuss the validity(is that a word?)View attachment 4930
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.