imported post
The following is a copy of the email I sent to OPD last night.
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The following letter is a template that was sent out by Mike Stollenwerk, co-founder of Opencarry.org, to be sent by concerned individuals to their applicable police departments. Mike and I collaborated over a letter that is no doubt the inspiration for this letter (I haven't sent you or your department my version of that letter as of yet but it will be attached towards the bottom) and I feel that these two letters, in combination with the one I already sent you (Murray) should put the whole "tape over serial number=PC/RAS" debate to an end.
This email has also been CC'd to Chief Frank S McCoy as well. I am sure he is going to need some filling in from you Lt. Murray so when he asks I would be prepared.
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Dear Lt. Murray,
I just want to touch base with you on the growing practice in California of openly carrying handguns.
Like most states, folks in California can legally carry visible handguns in belt holsters without any permit. But unlike these states, in California, these handguns must remain unloaded except when being used in self defense or when carried in unincorporated areas where shooting is not prohibited by the County. Loaded magazines may remain attached to belts.
While you personally may be up to speed on this issue, please ensure that your officers/deputies are reminded from time to time that open carry of unloaded guns in cities (unlike rural areas where guns can be loaded) is lawful in California and that any police stop of open carriers is limited to merely checking the loading condition of the firearm.
See,
e.g.,
People v. Knight, 121 Cal.App.4th 1568 (2004) (citing to 51 Ops. Cal. Atty. Gen. 197 (1968)), available at
http://caselaw.lp.findlaw.com/data2/californiastatecases/c045858.pdf.
In my opinion, even though the text of Section 12031 allows it, officers/deputies should not insist on checking load conditions absent reasonable articulable suspicion that either the guns are loaded or that some other crime might be afoot. This would be like stopping cars randomly to see if the driver's are licensed, raising obvious constitutional concerns.
But it should go without saying that police have no authority to bootstrap these Section 12031 loading checks into serial number checks,
see Arizona v. Hicks, 480 U.S. 321 (1987) (holding that police manipulation of personal property to obtain serial numbers violates the Fourth Amendment),or instant background checks,
see
Kolender v. Lawson, 461 U.S. 352 (1983) (striking down state statue requiring persons to carry or show ID to police). And as you know, California has no "stop and ID" statute so
Hiibel v. Sixth Judicial Dist. Court of Nevada, 542 U.S. 177 (2004) has no bearing on this matter.
Your officers are likley to run into folks who will tape over their serial numbers and refuse to disclose personal information and will expect not to be detained for these actions. In fact, they'd just like the police to say "howdy" and keep moving along unless some facts or circumstances truly warrant some otheraction.
Sincerely,
N8
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BELOW IS A COPY OF THE LETTER I WROTE UP FOR Lt. Shawn Murray
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The OC meeting in Oceanside has been canceled by myself until I can get things sorted out better.
In the meantime, I would like you to peruse the following information.
Arizona v. Hicks, 480 U.S. 321 (1987). In
Hicks, an officer entered an apartment under exigent circumstances to try to find and stop a person who was firing gunshots from inside the apartment. Once inside, the officer saw very expensive stereo equipment in what was otherwise a squalid apartment.[highlight= rgb(255, 255, 255);]
[/highlight]Suspecting that the equipment was stolen, [highlight= rgb(153, 153, 255);]the officer picked up the equipment to see the serial numbers so he could run the numbers for hits with known stolen property.[/highlight] In an opinion by Justice Scalia, the Court held that moving the equipment to reveal the serial numbers was a search:
It matters not that the search uncovered nothing of any great personal value to respondent - serial numbers rather than (what might conceivably have been hidden behind or under the equipment) letters or photographs. A search is a search, even if it happens to disclose nothing but the bottom of a turntable.
Now, I have highlighted two very important statements, both of which are relevant do the discussions that you and I have had today.
1) Just because something is "unusual" does not give the police a right to conduct a warrantless search of the
person, their house, their papers or effects (altered 4th Amendment). As Scalia said in her opinon, "a search is a search."
To better define the term "search", one need look no further than the dictionary.
to look at or examine (a person, object, etc.) carefully in order to find something concealed
2) Notice that the officer physically lifted and removed equipment to gather evidence, all without a search warrant, so that the equipment could be checked in their database. Again, just because the evidence is not visible or is "unusually" obstructed does not mean that removal of said obstruction is justified.
Now, to look at
Terry vs. Ohio
While the 12031 check gives CA peace officers the power but not the obligation to conduct a 12031(e) check on people carrying a firearm, the scope of the (questionably illegal) "search" is to check if the weapon is unloaded or not. If the weapon is LOADED, then an arrest and thereby a further search can be conducted, since clear and articulable suspicion can be provided. However, if unloaded, the individual must be released to go about his business. The tape over the serial number is not a crime and the mere "hunch" that the person bearing the weapon may be a criminal or have a stolen weapon is not relevant.
Simple “‘good faith on the part of the arresting officer is not enough.’ ... If subjective good faith alone were the test, the protections of the Fourth Amendment would evaporate, and the people would be ‘secure in their persons, houses, papers, and effects,’ only in the discretion of the police.” - Beck v. Ohio
Now, you might be wondering... is the bearing of arms a crime? NOPE! There is also no "gun exclusion" to Terry, meaning that just because a gun is present does not mean that a crime has been or is going to be committed. See
Florida v. J.L..
Putting everything together, one can see that carrying a gun is not an indication that a crime has been committed and that it would be a 4th amendment violation to remove tape or accessories from a firearm to uncover and run a serial number.
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Also, I am going to need a lot of clarification on Oceanside's (questionably legal) local ordinance, copied below.
Sec. 20.10. Weapons--Possession in public--Prohibited.
No person shall be or appear in any street, alley, sidewalk, parkway or any public place or place open to public view while carrying upon his person, or having in his immediate possession, any dangerous or deadly weapon. This section shall not be construed to duplicate prohibitions of California state statute, or to prohibit the possession of weapons expressly authorized by California state statute.
(Ord. Code, § 4134; Ord. No. 93-19, § 9, 10-13-93)
Open carry is expressly authorized by California state statute but the ordinance bans "dangerous or deadly weapons"... how does that work, exactly?
Get back to me when you can.
-N8
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This is the exact same letter I sent to SDPD prior to the SD OC Meet. I was helped by Mike Stollenwerk, co-founder of Opencarry.org
Arizona v. Hicks - precludes police access to or recording of serial numbers as a matter of Fourth Amendment law.
Kolender v. Lawsen- a state cannot mandate people identify themselves with credentials even if they want to.
Hiibel v. Sixth Judicial District Court of Nevada- Quoted in Kolender v. Lawsen style="font-family: arial,helvetica,sans-serif;" as supporting case law. Limits police interaction to stating my name with no requirement to show ID when I am stopped and detained for suspicious activity, e.g. articulable suspicion that I was involved in a crime.
Terry v. Ohio- Police can stop and search a person if and only if "specific and articulable facts" are present. Police hunches and searches based on one exercising one's Constitutional rights are not included.
Other things to consider
1) Law states that serial numbers cannot be obliterated or altered, not obscured or hidden. If the obscured or hidden rule were to be followed, then a lot of revolvers could be considered illegal since the serial number is oftentimes hidden beneath the grip. Likewise with Glocks and a mounted accessory on the accessory rail, Mossbergs and sidesaddles, etc.
2) In Arizona vs. Hicks, the police removed moved objects in order to record a serial number, an action which requires a search warrant as the serial numbers were not plainly visible. Likewise, removing tape to reveal a serial number is grounds for a 4th amendment violation.