Weapons Violations

[AyatollahGondola]

I had a recent event, not my first time at all either, with local LEO and my possession of a handgun. I have read the penal code a few hundred times, and admittedly I interpret it differently some times I do, but it seems fairly simple when you break it down piece by piece. Viewed in aggregate, it seems confusing, especially if you think you can gain an overall sense of the intent. I am apparently not the only one with conflicting opinions either. Even among law enforcement their seems a little disagreement. So if you wouldn't mind extending an opinion of your own here, I'd like to see how some of you interpret the concealed weapon/transportation of them, and possession if you are not a permittee. One thing I've been noticing is that there seem to be as many unwritten laws as there are codified ones on this subject when it comes to professional law enforcement.

[AyatollahGondola]

First off, you make a stop, and all facts about probable cause or search aside, this lock bag turns up with this weapon in the condition you see it.
Is this weapon loaded for the purposes of charging for a loaded weapon?

http://img2.putfile.com/thumb/6/17300503642.jpg (http://www.putfile.com/pic.php?img=5765401)

http://img2.putfile.com/thumb/6/17300503626.jpg (http://www.putfile.com/pic.php?img=5765402)

http://img2.putfile.com/thumb/6/17300503685.jpg (http://www.putfile.com/pic.php?img=5765403)

[snowdog]

First, where did it turn up in relation to the driver or any other occupants. And, you cannot just set aside all facts about probable cause or search. Those are very important elements. You're looking for a very simple answer to a question that could have many variables.

[AyatollahGondola]

First, where did it turn up in relation to the driver or any other occupants. And, you cannot just set aside all facts about probable cause or search. Those are very important elements. You're looking for a very simple answer to a question that could have many variables.
No search. Officer asks if you have any weapons and you say yes, I do. and you provide the location within the vehicle. I'm not trying to beat the rap here, I thinking there isn't one

[snowdog]

Again, too many variables. Only a fool would try to answer with such limited information.

[AyatollahGondola]

Again, too many variables. Only a fool would try to answer with such limited information.
I don't understand that. The photo should be pretty descriptive.
From the photo, does this appear to be a loaded weapon? Does having rounds in the magazine but none in the chamber qualify it as loaded?
does having the magazines with rounds in them in the container, but not in the handgun itself qualify that weapon as being loaded?

This has nothing to do with whether or not there was cause to search or even ask. I don't care about that really.

[AyatollahGondola]

I think this might clear it up a little. The definition from the penal code. The interpretation of it is at the crux of my questions


(g) A firearm shall be deemed to be loaded for the purposes of
this section when there is an unexpended 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.

[snowdog]

I don't understand that. The photo should be pretty descriptive.
C'mon AG, shall we refer to the thread regarding LAPD on May 1 and how a photo/video gives only a fraction of the facts. If it's good enough for the mayor and chief then it must be accurate.
Pose the question to a lawyer or you might have better luck getting an answer at the ACLU's or NRA's web site. I'm not ragging on them, just saying I'm sure they wil be happy to give an opinion.

[snowdog]

Besides looking at the penal code, try looking up case law. Or, jury instructions regarding the violation. Perhaps they might help answer your question.

[AyatollahGondola]

I'm interested in how law enforcement officers interpret this also. And how they are trained to deal with this.
Case law is after the fact, and jury instructions vary from case to case, court to court, and judge to judge. The first thing that happens is a violation is written or an arrest is made. I'd like to follow the pathway here.
The facts seem fairly descriptive here. rounds in magazines; magazines not in gun. both in locked bag, and within vehicle. All upon a california highway or local street. What other facts are necessary to determine this was a loaded weapon or not?
I'm no fan of chief bratton by the way. Quite the opposite really

[ResQ]

AyatollahGondola wrote, "I'm interested in how law enforcement officers interpret this also. And how they are trained to deal with this."

Law Enforcement Officers interpret this as a slipperly slope that most will choose not to engage in because they were not there. (It is in the anti-monday morning quarterbacking pills we are forced to take by the government along with our daily injections)

They are trained to deal with this by not engaging so their twice-removed opinions do not end up thrown around town without their knowledge or consent. (Read: the guy who says..."but my friend's brother's cousin is a chippy and he said I could conceal THIS weapon in THIS way")

AG wrote: "I had a recent event, not my first time at all either, with local LEO and my possession of a handgun." So you are saying this SAME thing has happened before...and what did the officers tell you in your previous encounters? Did you follow THEIR advice and interpretation? ...or did you ignore them and continue with your OWN interpretation of the PC?

You also said "Officer asks if you have any weapons and you say yes, I do." then something happened that has been left out...like an arrest...confiscation...warning...I dunno...if it were a real issue, some action would have been taken. So...tell the whole story.

I'm all ears

[PapaBear]

Basically, if a firearm is transported within the PASSENGER area of a vehicle and the ammunition for said firearm is either attached to the weapon or both the firearm and ammunition are within reach of any occupant of the vehicle the weapon is considered to be a violation of CCW laws.

If transported in the trunk area in a case or bag and it is unloaded no violation providing the weapon is only being transported from point A to point B or to a range for target practice.

If you were transporting the weapon in the bag pictured with the magazines loaded and in the bag; and, the bag was in the passenger compartment of your vehicle you are in violation!!!

Sections 12025 and 12031 of the California Penal Code

[AyatollahGondola]

ResQ,

Every time was not exactly the same, but many of the same codes were cited as to why. In addition, the codes have been amended in between the events I mentioned, so not all of the old advice from those periods applies exactly now.
As for the whole story......I'll do that, but because there were so many different points it will take a bit more time than I have at the keyboard right now. tomorrow or this evening though. On the issue of advice taking from the previous events:
I can tell you that once again, the interpretation of the code was not the same from officer to officer, and even the DA's office agrred with me on some of them. What I can tell you from these experiences is that often when I pointed out the code in print to a disgreeing officer, there was another defense applied, and that was ususally something akin to "well, the bottom line is that you will end up going to jail and have your weapon siezed." "Even if you win in court in the end, the cost will be significant". Now i'm not saying that an officer isn't within the boundaries of the law in doing so; just saying that knowing the law and how it is interpreted might be better for all of us. the courts interpretation is of course important, but that is not our first contact really.

Papa Bear,

Your answers are hitting the mark here.

Basically, if a firearm is transported within the PASSENGER area of a vehicle and the ammunition for said firearm is either attached to the weapon or both the firearm and ammunition are within reach of any occupant of the vehicle the weapon is considered to be a violation of CCW laws.

Specifically, the within reach part. The only part of this I can find that applies, is to the penalty for doing so under these circumstances. Basically it says that you can go to prison longer for carrying a weapon concealed if it is within your reach, although that applies only if 2 conditions are present. The other one being that the firearm isn't registered to you. I cannot see anywhere else in the code that having it within reach is a violation. But in transporting, it seems to allow you to do so as long as it is in a locked secure container. I haven't found anything in that section that states the ammunition must be seperated from the weapon specifically
This is where i'm confused. If you are allowed to transport it unloaded, as long as it is in a locked container, and the locked container isn't the glove box, and you follow the definition of the unloaded weapon, wouldn't that keep you out of the realm of concealed violation if it was still within the passenger compartment? I see where it mentions it may be transported in the trunk, but not that it must be.

If transported in the trunk area in a case or bag and it is unloaded no violation providing the weapon is only being transported from point A to point B or to a range for target practice.

This one here was also at issue, but not as confusing to me anyway. there are many exceptions to why you can transport. the officer i was speaking with said there was only a couple, and specifically the range one, as if there were only two places you can transport it to. This one i will wait and explain when i post the answers that ResQ asked for. it's more pertinent then.

If you were transporting the weapon in the bag pictured with the magazines loaded and in the bag; and, the bag was in the passenger compartment of your vehicle you are in violation!!!

Sections 12025 and 12031 of the California Penal Code
Her

[23112]

The following is from page 41 a book called, How to Own a Gun and Stay Out of Jail by John Machtinger:According to the Penal Code, a gun is "loaded" when there is an unfired cartridge (some people call this a "bullet") or shotgun shell attached in any manner to the gun. This includes cartridges and shells in the firing chamber, and in the magazine or clip if that magazine or clip is attached to the gun.

In 1996, the California Court of Appeal clarified the phrase "attached in any manner." To be "loaded," the court said, a gun must have ammunition in a position where it is ready for firing. But ammunition only in a storage space, such as the stock of a rifle or shotgun, is not. Thus, the rule is that a gun is "loaded" when there is ammunition attached in any manner to the gun, if that ammunition is also in a position where it is ready for firing. (Penal Code 12031 (g); People vs. Clark (1996) 45 Cal.App.4th 1147, 1154.)

The law is not clear on whether you can carry a loaded magazine in the same container as the gun it fits into without falling under the loaded gun law. The answer depends on whether a magazine in the same container is "attached" to the gun. Carry both in the same container at your own risk!
Machtinger goes on to say, "There is no requirement that when you have a gun in your car you must keep the gun in the trun and the ammunition in the glove box. However, keeping the gun and ammunition in separate parts of the car might help you prove to a police officer or court that you are not violating the loaded gun law." (Ibid., 42)

I hope that helps with the circumstances in general, since it would be foolhardy to comment on your specific circumstances without knowing everything that happened. In the picture above, the ammunition looks ready for firing.

[Stargrl]

But in transporting, it seems to allow you to do so as long as it is in a locked secure container. I haven't found anything in that section that states the ammunition must be seperated from the weapon specifically
This is where i'm confused. If you are allowed to transport it unloaded, as long as it is in a locked container, and the locked container isn't the glove box, and you follow the definition of the unloaded weapon, wouldn't that keep you out of the realm of concealed violation if it was still within the passenger compartment? I see where it mentions it may be transported in the trunk, but not that it must be.


This one here was also at issue, but not as confusing to me anyway. there are many exceptions to why you can transport. the officer i was speaking with said there was only a couple, and specifically the range one, as if there were only two places you can transport it to. This one i will wait and explain when i post the answers that ResQ asked for. it's more pertinent then.



Why don't you just err on the side of caution? Store your locked, unloaded weapon separately from your ammo, in your trunk or trunk area. Better yet, lock up the ammo separately from the gun. I don't see why this would be a problem if you are truly only transporting it from point A to point B.

[AyatollahGondola]

Why don't you just err on the side of caution? Store your locked, unloaded weapon separately from your ammo, in your trunk or trunk area. Better yet, lock up the ammo separately from the gun. I don't see why this would be a problem if you are truly only transporting it from point A to point B.
Well, for one thing, I don't have a trunk. A lot of us don't now. People drive mini-vans, motorcycles, pick-up trucks, and even bicycles that are capable of transporting firearms. Also, it is a big pain to unload and reload two magazines each time you go to your business, and then home again. It seems to me that the legislature would have addressed the issue of loaded magazines being transported separately if they wanted the law enforced that way. That section has been amended several times recently without any changes to that particular subject. Could it be that their intent was that as long as the magazines were full, but not in the gun, it was acceptable?

In 1996, the California Court of Appeal clarified the phrase "attached in any manner." To be "loaded," the court said, a gun must have ammunition in a position where it is ready for firing. But ammunition only in a storage space, such as the stock of a rifle or shotgun, is not. Thus, the rule is that a gun is "loaded" when there is ammunition attached in any manner to the gun, if that ammunition is also in a position where it is ready for firing. (Penal Code 12031 (g); People vs. Clark (1996) 45 Cal.App.4th 1147, 1154.)

I hate it when the courts start making up for the legislatures failings
Even this ruling is not entirely clear though

[bcjack]

ag:
If I understand correctly, it sounds like you have the loaded gun at your place of business for personal protection...If you don't want to load and unload it every time you leave the place of business, and don't have a trunk, then don't have the gun...If you had a trunk, I would see no big deal with having a loaded gun in the trunk and driving from point A to point B DIRECTLY...If it is locked in the trunk, you can't have it "within reach" unless you park your car and get out to retrieve it.

Not being an attorney or a law enforcement officer, that is my PERSONAL opinion.

[AyatollahGondola]

ag:
If I understand correctly, it sounds like you have the loaded gun at your place of business for personal protection...If you don't want to load and unload it every time you leave the place of business, and don't have a trunk, then don't have the gun...If you had a trunk, I would see no big deal with having a loaded gun in the trunk and driving from point A to point B DIRECTLY...If it is locked in the trunk, you can't have it "within reach" unless you park your car and get out to retrieve it.

Not being an attorney or a law enforcement officer, that is my PERSONAL opinion.

Unloading the gun would be simple and painless if it were only required to remove the magazine from the gun, which is what i believe the law states. Now maybe it does, or maybe it doesn't state that. This is why I'm asking opinions on that specifically. As I stated, I have no trunk. and sometimes I have a bike. Hell, what if you don't have a vehicle at all and need to transport a gun? I haven't even looked into that much, but it seems that wherever you carry the ammo and gun when you walk, you would be in violation unless it was out in the open. And I could see that ending up badly without looking too far ahead.

Yes, the business was the reason. The locals didn't even agree that
I was not in violation with that either, but I will post the entire event soon.
The disturbing thing here is that overall, most law enforcement types are starting to view a citizen with a gun in a negative light right off the bat, and I would say that they tend to discourage them from even some lawful activities, even if unknowingly doing so. I say disturbing because even if you do not believe private citizens should own or use guns for other than target shooting or hunting, it is still a right, and all of our rights need defending.

[PonderingCHP]

Why don't you just go through the process to get a concealed weapons permit?

[PapaBear]

Packing.org site...........this puts into plain English which is easy to understand CA's laws regarding CCW.

http://www.packing.org/state/california/

[ResQ]

AG wrote: "The disturbing thing here is that overall, most law enforcement types are starting to view a citizen with a gun in a negative light right off the bat, and I would say that they tend to discourage them from even some lawful activities, even if unknowingly doing so. I say disturbing because even if you do not believe private citizens should own or use guns for other than target shooting or hunting, it is still a right, and all of our rights need defending."

You have got to be kidding me?! :question:

MOST law enforcement TYPES...in a NEGATIVE light... (well aside from the generalizations) ...ITS BECAUSE EVERYONE WITH A GUN IS A THREAT!!

and... DEFENDING YOUR RIGHT is what every one of those TYPES is doing by being out there.

You amaze me...?! With your extensive knowledge, you should try becoming a reserve officer...I am sure those TYPES could use some help in aligning their views to be more appropriate and might be impressed with some your example on just HOW we could better defend those elusive rights you speak of...

[Royd5150]

AG wrote: "The disturbing thing here is that overall, most law enforcement types are starting to view a citizen with a gun in a negative light right off the bat, and I would say that they tend to discourage them from even some lawful activities, even if unknowingly doing so. I say disturbing because even if you do not believe private citizens should own or use guns for other than target shooting or hunting, it is still a right, and all of our rights need defending."


Wow thats a big assuption on your part. I dont think you know all law enforcement types. Because you sure dont know me, or what I do. So whats in your background that prevents you from becoming a CCW holder? If theres nothing, then why don't you have one? I am amagine that these "law enforcement types" know much more than your letting on, and discourage you because of that.

So what if you were on a bicycle or unicycle, or whatever. I do not understand your reasoning on this whole thread. To me it sounds like your looking for a defense to beat a charge of some sort. AND why is it taking you so long to write out about this event? You can respond in detail to others, but cannot take a few minutes to hammer it out. Oh if you are truely consirned about the gun being loaded or not, why not consult the experts, California Department of Justice/Attorney General.

[dw]

Law is subject to interpretation, I'm sorry, but that's simply the way it is. The Penal Code along with other codes in California have grown logarithmically in recent decades -- to define every possible situation is impossible.

...which brings us to case law. Part of our great legal process in the United States is to allow court interpretation of law and legislative intent. Sometimes the legislature does a good job defining their intent, other times they do not. No matter what the case decision, someone will disagree. In fact, many will disagree. Case law does throw a wrench into what some may view as a clear law, but I'm sorry -- 200+ years and we haven't figured out a better way to do things.

Jury instructions: Check out your local law library for some very consistent instructions administered to juries.

Officer response to weapons: Again, I apologize if I get a tad on the defensive when there's a gun in the car -- I like my house and coming home to it at the end of shift. Before anyone thinks it, I am fully aware that those who self-declare a firearm are probably in the least likely segment to use one against me. It is still my duty (to my family) to get defensive.

CCW: For better or worse, it can be difficult to impossible for a law abiding citizen in California to obtain a CCW, so in this case it is not the end-all solution.

And finally, this thread has run its course. Many sources of information have been discusses which will help one form their personal legal opinion. Unfortunately the only opinion that matters at the end is that of a jury.

:closed: