IMPORTANT!!! Watch Bay Area ABC CH 7 NEWS 6pm UOC story of TODAY !!!

[Rusty]

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Try to find a frienldy sheriff or police chief to ask for the opinion - or just one that wants a good excuse to stop these silly e checks and/or not get sued!

I have seen some of these opinions requested by state legislators. I think that would be the best route to go. If you could find a friendly legislator that could submit it for you.

 

[Streetbikerr6]

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...deleted..

 

[coolusername2007]

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Mike wrote:

Can I ask you Cal. unloaded carry folks a question?

Why (apparently) is nobody working the overexuberant e-check issue?

12031e 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 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."

Let's forget the overexubernat serial number checking thing for now - what about seizing people for open carry? The seizure thing is the low hanging fruit here.

What is the state of the law in California (state and federal interpretations binding on Calif.) re pointing guns at people, cuffing them, ordering them to put their hands up, etc.for administrative inspections? has anyone performed legal research on this general issue? Paid an attonrey to produce an opinin? Contacted the ACLU for help? etc.

Seems to me that the way the statute is written it does not state or imply that carrying a gun openly in an incorporated areaisgrounds to presume that crime is afoot - in fact it states specifically when the presumption of crime occurs, that is, where you refuse to allow a peace officer to inspect your fiream - under the statutory construction doctrine of Expressio unius est exclusio alterius (The express mention of one thing excludes all others)then officers would appear to be barred from seizing people just because hey are open carrying, and further, have no mandtory duty to conduct load inspections anyway.

And what does california law say about police pointing guns at people generally?

I think you all need to focus on this issue ASAP. Has anyone asked the AG's office for help i can;t imagine pro-gun AG brown wants to the police to accidentally shoot a legal open carrier.

Time to put on your thinking hats on this issue.

Excellentpost Mike. I would be interested in knowing what the "right people" have to say on your questions. Perhaps Cato can provide a little inside baseball on this one.

I would be willing to work on this as a 2010 project. Anybody else?

 

[cato]

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coolusername2007 wrote:

Excellentpost Mike. I would be interested in knowing what the "right people" have to say on your questions. Perhaps Cato can provide a little inside baseball on this one.

I would be willing to work on this as a 2010 project. Anybody else?

I sent Mike a PM, that's all I'll say on this topic...other then thatI've not been briefed on specifics but I expect to be happy when certain info becomes public...2010 will be a year for the history books!:celebrate

 

[coolusername2007]

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cato wrote:

coolusername2007 wrote:

Excellentpost Mike. I would be interested in knowing what the "right people" have to say on your questions. Perhaps Cato can provide a little inside baseball on this one.

I would be willing to work on this as a 2010 project. Anybody else?

I sent Mike a PM, that's all I'll say on this topic...other then thatI've not been briefed on specifics but I expect to be happy when certain info becomes public...2010 will be a year for the history books!:celebrate

I don't understand the need for secrecy on this. Litigation is public, so clearly nothing has been done to date. If litigation is being planned, which it seems to beby your cryptic post, then I would have to wager its in the queue and being prepared for launch moments after a positive outcome in the McDonald case.

...or something like that.

 

[Dave1947]

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Yeah, not too bad of an e stop, but taking time after completeing the load check to memorize the serial number an announce it in public is not legal in my opinion, and under Arizona v. Hicks would lead to evidnce suppression should that SN lead to any kind of criminal charge.


He was not memorizing, but recording it on his voice recorder or another officer was also writing it dow to do a check on serial number.

 

[Mike]

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What do California state courts consider as being under arrest - perhaps when guns are drawn on people and they are cuffed?

If so, then it might be a problem if the police so "arrest" people soley as preparation to do an e check because "[w]here there is no request there can be no refusal. Hence, section 12031, subdivision (e), did not justify an arrest, and the search was not incident to a lawful arrest." People v. Kern, 93 Cal. App. 3d 779, 782 (Cal. App. 1st Dist. 1979) (affirming trial courts suppression of evidence, i.e., firearm(s), found by police searching a car for guns under color of a Section 12031(e) inspection where police did not first request to examine the firearms).

 

[demnogis]

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Mike, in CA you are under arrest once the LE inform you that you are under arrest (not always telling you why), cuffing you, then Mirandizing you. We specifically ask when officers break leather and take out the cuffs "Am I under arrest?" The answer almost always is "No, you are being detained."

I've been through this as have others here. Sometimes if we are detained a Detention Certificate detailing CA PC §851.6 and the reason for being released is given to them. I'll start asking for them in the future if I am detained and not immediately released after a 12031(e) check is done (I'll start putting them in a scrap book or framing them on my walls).

I forget which case it is, but the CA courts have upheld that the authority to perform a 12031 (e) check is in fact not a search or seizure, but specifically an inspection. We've argued this ad nauseum amongst ourselves. It seems to be a circular argument coming back to the fact that the State knows it is a gross 4A violation, but prefers to allow it because of "public safety".

I agree, this needs to be brought to a judge to strike down bad policy and prevent "qualified immunity" when it is obviously not deserved. Performing a felony hot-stop with guns drawn and rifles trained on lawful open carriers needs to be put to rest. How will the LEAs react when 12031 is stricken from the books? 626.9? Almost assuredly they will cling to their policies for "public safety" until they are forced to rewrite them kicking and screaming.

Mike wrote:

What do California state courts consider as being under arrest - perhaps when guns are drawn on people and they are cuffed?

If so, then it might be a problem if the police so "arrest" people soley as preparation to do an e check because "[w]here there is no request there can be no refusal. Hence, section 12031, subdivision (e), did not justify an arrest, and the search was not incident to a lawful arrest." People v. Kern, 93 Cal. App. 3d 779, 782 (Cal. App. 1st Dist. 1979) (affirming trial courts suppression of evidence, i.e., firearm(s), found by police searching a car for guns under color of a Section 12031(e) inspection where police did not first request to examine the firearms).

 

[bad_ace]

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For those that love YouTube links here's the news report on youtube.

http://www.youtube.com/watch?v=fJVpCMyMKWU

My only critique: Walter should have refused to put down his recorder (or at least not complied), and also not answered the officers questions.

Asking questions of your own are OK. Am I under arrest? Who are you? How can I help you? Am I free to go? What have I done wrong officer? etc.

Can you imagine if the officer responded to "What have I done wrong officer?" with "nothing, but I want to check and see if you may be breaking the law"

edit: name change.

 

[AdnanShahab]

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That wasn't Livermoron in that ABC News story.

 

[bad_ace]

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AdnanShahab wrote:

That wasn't Livermoron in that ABC News story.

You're right, my mistake. I've got to get a handle on all the new names

 

[demnogis]

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Lets play a game: take a shot of your favorite beverage every time they use an incarnation of the word "demonstrate".

 

[AdnanShahab]

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No problem, bad_ace. We are all meeting a whole lot of new people these days.

 

[Livermoron]

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Did someone call for - Livermoron?

 

[J. Tremain]

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coolusername2007 wrote:

Ok a couple of quick comments...

1. Did anyone else notice the violation with a smile service? I think this LEO thought this was his 15 seconds of fame.

2. I like the UOCer's t-shirt, great interview attire.

3. Am I the only one who thought thise-check seemed awfullycontrived for the amountof firepower in the background along with rolling backup? Could the reporter have been the one who called 911 in fear? Makes a great story doesn't it?

4. Ignore the Brit and his racist remarks against Native Americans! Like the only time we need guns is when indians are afoot. What an elitist remark! Did anyone check to see if he is here legally?!

Yah, I thought it was a bit ironic the two people they could find to interview are some frightened/paranoid housewife who clearly has never given any thought at all to personal safety or to self-defense, and then that Brit. If America is such crap he can always go back home where citizens don't have any rights and even knife ownership is under attack now. (Knife attacks have skyrocketed in England- good job on that gun ban). It is hard to believe his ancestors ever had an empire.

I guess we should all tell the cops "Hey, put away your "assault rifle", there are no Cowboys and Indians here!".

Actually, given its heritage as a "cow town", Livermore does in fact still have cowboys, of a sort, and I'm sure there are some Indians around somewhere. There's a great Indian buffet just up the street (excellent vegetable koorma, btw).

 

[KansasScout]

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I just ran into the video on another blog tonight. The unloaded condition gives them an excuse to disarm you if they need one. Still, they did not treat the guy as bad as they could have. And they did return the gun. They overreacted with the rifle and circling cruiser but overall, in spite of the posturing, the right to carry prevailed. The citizen did a good job of handling the situation and avoided confrontation. They knew it was a media event and acted like it. Good job to the guy who tested this out. Job well done.

 

[yelohamr]

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J. Tremain wrote:

Actually, given its heritage as a "cow town", Livermore does in fact still have cowboys, of a sort, and I'm sure there are some Indians around somewhere. There's a great Indian buffet just up the street (excellent vegetable koorma, btw).

When I was a kid, Indian food involved fry bread and dog meat.



Don't ask why I know this.