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Re: Stopped for Open Carrying in California
Posted: Sun Mar 28, 2010 8:06 pm
by ssc
With all due respect to John, your info is wrong. I tend to think you are reading or getting info from some of the right to carry folks. This is how people get into trouble. First, just reading the code is only the first step. It is the legislature who writes these codes and it is the court who interprets the meaning. This is why the Supreme Court had to interpret the 2nd amendment. We have annotated codes which after reading a code quotes cases where the courts discuss or quote or interpret the code. It isn't always what it appears. If anyone thinks the officer can only check the gun and not ask additional questions, you are heading to jail. The officer has PC to conduct an investigation and this includes making a determination as to whether the gun is stolen or if you are in the class of persons who is not allowed to possess a firearm. The codes that everyone likes to quote specifically discuss these issues. Unfortunately the internet has a lot of misinformation. Hence, if someone wants to open carry, that is their choice. However, they should know the risks and the law as opposed to relying on the erronet. I sometimes think that some groups like to spread misinformation so that someone will get arrested and then they can sit back and see what happens. If things go well, they have a hero and something to cheer about and a case to point too. If it goes bad they have a scapegoat and think, "Glad it was him and not me."
Just Sayin....
Regards, Steve
Re: Stopped for Open Carrying in California
Posted: Sun Mar 28, 2010 9:39 pm
by BorregoWrangler
ssc wrote:With all due respect to John, your info is wrong. I tend to think you are reading or getting info from some of the right to carry folks.
Really? I do see your point, but most of the information I got was from a few current Memorandums from the Field Operation Divisions of the San Diego and Oceanside Police Departments. I've also talked it over with family here who are in law enforcement. I do realize that there may be special circumstances with each situation. For example, PC 833.5 provides a peace officer with the authority to detain for investigation anyone who the officer has
reasonable cause to believe illegaly has in his or her possession a firearm or other deadly weapon.
That now puts them right in the middle of a "Terry" stop (Terry vs. Ohio (1968) 392 U.S. 1) which includes the right to frisk for weapons if an investigative stop is lawful and there is reasonable suspicion that a person stopped is armed and dangerous. The reasonable purpose of this stop (12031 e) is to inspect a firearm to determine if it is loaded. This area is legally unclear and that's when the problem of a "prolonged detention" may be run into. A traffic stop (or any other detention) which is reasonable in its inception may become unreasonable if prolonged beyond that point reasonably necessary for the officer to complete the purposes of the stop or detention. (People vs. McGaughran (1979) 25 Cal.3rd 577.)
Yes, the internet has a lot of misinformation, so it's critical that someone engaging in open carry is well versed in the appropriate laws. As you can see, I didn't get my information from internet propaganda or from those with an agenda. The bottom line is that there are alot of gray areas here where the conduct and professionalism of a peace officer will be brought into sharp focus.
Here's a story of a young man arrested for carrying a concealed firearm in a vehicle, with a good ending.
Jury Acquits Honor Student Of Gun Charge
March 24th, 2010 | Category: Press Releases
San Francisco, CA – An Army veteran and Dean’s List student who was prosecuted over a legally-registered, unloaded gun was found not guilty by a San Francisco jury Wednesday.
Jury members deliberated just 45 minutes before acquitting San Francisco resident Wayne Lee Banks Jr., 26, of carrying a concealed firearm in a vehicle. The misdemeanor charge carries up to a year in jail.
Banks, who has no criminal convictions, was arrested Oct. 9, 2009 following a contested traffic stop at Kearny and Clay streets. Officers stated in the police report that they immediately saw a handgun in a belt holster propped up against the center console.
“Despite officers describing the gun as immediately visible to justify the detention, Mr. Banks was arrested for carrying a concealed weapon. You can’t have it both ways. It’s not a magic gun,” said his attorney, Deputy Public Defender Maria Lopez.
During the two day trial, Banks testified that he felt comfortable carrying a handgun for protection because of his Army training and understanding of gun laws. Even though firearms carried openly in belt holsters are not considered concealed according to California Penal Code, Banks testified that he took the already visible belt holster off his hip and placed it further up on the driver’s seat against the armrest to ensure his unloaded gun was completely visible as he drove.
A sergeant and two officers from the San Francisco Police Department testified at the trial. Police also submitted photographs of Banks’ gun partially wedged into the corner of his seat. During cross examination by Lopez, however, the sergeant admitted that the photographs were taken after he had handled the gun and placed it in that position.
“The testimony and photographs were not consistent with the initial police report and there was tampering with the evidence,” Lopez said. “The jury couldn’t understand why this went to trial. Either a gun is concealed or it is not, and this gun clearly was not.”
Banks, a 4.0 student and track team member at San Francisco City College, plans to transfer to Morehouse College and feared a conviction could ruin his chances for financial aid and scholarships, Lopez said.
San Francisco Public Defender Jeff Adachi called the trial a waste of resources.
“Mr. Banks was extremely conscientious about following the laws surrounding gun ownership,” Adachi said. “Considering all the cases involving illegal weapons and gun violence, it’s difficult to understand why time and money was spent prosecuting Mr. Banks.”
Re: Stopped for Open Carrying in California
Posted: Sun Mar 28, 2010 10:03 pm
by BorregoWrangler
ssc wrote:I was hunting somewhere many years ago--don't remember the state--and it was legal to have rounds in the mag/clip, but not in the chamber, while in a vehicle. We came back from hunting and set our guns against the truck to take off our packs, get something to drink etc. A fish and game officer or ranger drove up. He cited everyone who had a shell in the chamber because the rifle was touching the truck. Go figure.
Regards, Steve
Oh hey, that reminds me of a very similar incident I had with a few friends while deer hunting out along the river in Imperial Valley. Same law, same thing happened. I got lucky, though.
First heard about that from a fish and game officer while fishing the canals just outside of El Centro. I had my .35 Remington in the bed of my truck when he wanted to check it. Loaded but not chambered. Interesting thing too, I was sitting at my campfire with my fishing rods about 30ft away. That was ok. However, while camping out at the river in my tent I got a ticket for an "unattended fishing pole" when they were only 10ft away. Go figure.
Re: Stopped for Open Carrying in California
Posted: Sun Mar 28, 2010 10:29 pm
by ssc
I find this to be most interesting. John do you have copies of these memos? I would be interested in reading them. I have not handled criminal cases in some time, but am well versed in criminal law. I would be very interested in any info reflecting your post number 8--about not having to answer questions and having a legal gun is not PC. If the depts have adopted this policy, then the open carry movement has had a substantial effect in this state and I will have to rethink my thoughts on the open carry movement. I have friends on SDPD and one buddy who is retired OPD. I will call them tomarrow. My boy who is LEO has read this thread and said no dice at his dept. If you need my email or mailing address, PM me. I look forward to these memos.
Regards, Steve
Re: Stopped for Open Carrying in California
Posted: Mon Mar 29, 2010 12:26 am
by cruiserlarry
unwiredadventures wrote:
I don't like the idea that anyone doing something completely legal, open-carry, driving a car, walking a dog in a legal manner, is presumed guilty. I don't want to live in a Police State where we are constantly checked for our "papers".
That's a stretch, IMO - to associate inspection with guilt. It's also, IMO, one of the falsehoods in the gun rights argument.
Virtually everything you do, outside of any type of govt intervention, requires you to submit to "inspection" in order to avail yourself of a privledge; IDs to use a credit card; Verification (even fingerprints) to access your money at the bank; credit checks to borrow money or finance a purchase. These are all infringements on your privacy in some fashion - yet most folks willingly subject themselves to these inspections by non-trained people (or machines) every day. Regulation is used for more than the creation of paranoia - it is used for protection and accuracy. It's a far cry from checking someone parading with a lethal weapon on their side in public, to a "police state"; especially considering some of the most vocal pro-gun aficionados are also law enforcement personnel. I would question the sanity of anyone who is convinced it is OK to allow anyone to walk around armed without question or concern to circumstances.
How anyone feels safer, even when armed, knowing that all those around you are armed as well, is something I will never comprehend. How people can rationalize the fear of a police state in this country, is even harder for me to understand. But it is the right of every citizen to occupy his time with worry over the negative and reactionary, instead of the positive and preemptive.
Re: Stopped for Open Carrying in California
Posted: Mon Mar 29, 2010 6:34 am
by ssc
I am up early as my clock is still off. I have sent emails to my contacts, but have not heard from anyone yet. However, I have done a bit of research and I have found the memo from San Diego and it does not support post number 8. It was on a open carry website. Also the DDA opinion from LA says what I believe is the correct view. My main reason for sinking my teeth into this situation is so that none of our members gets arrested due to bad info. My personal opinion on open carry is that it will backfire and the legislature will delete this provision, due to these people flaunting it. If this happens then a valuable provision will be removed. I will post an interesting contact with fish and game in a moment.
Regards, Steve
http://www.hoffmang.com/firearms/carry/ ... 009-03.pdf
Re: Stopped for Open Carrying in California
Posted: Mon Mar 29, 2010 6:37 am
by ssc
Re: Stopped for Open Carrying in California
Posted: Mon Mar 29, 2010 6:54 am
by ssc
There are many memos from different depts and jurisdictions. Due to all this fuss, I predict we will see the legislature delete this provision and become more restrictive respecting gun laws. The average citizen doesn't support nor understand the situation and it spooks them. The drain on local Law enforcement is prohibitive and many of the OC want to get into a pissing match and are looking for a way to file a lawsuit. It will be deleted due the states public safety outcry and the anti gunners will claim a victory. This is no way to further the cause in my opinion.
Regards, Steve
http://www.hoffmang.com/firearms/carry/ ... g_Guns.pdf
Re: Stopped for Open Carrying in California
Posted: Mon Mar 29, 2010 7:28 am
by ssc
Johns experience with F&G is like mine. My son, when younger, liked to fish. We went to Catalina Island and after landing, went to the dock where pops was waiting on his boat to go fishing. Off we go and pops and son are fishing and I am reading a book. They have their licenses pinned to their shirts. Here comes the Fish and Game boat with 3 agents in their black jumpsuits. The one in charge was an idiot and I even caught the other agents rolling their eyes and laughing at him, behind his back. Wants to know if we caught anything, pops says no and he looks around the deck and into the cabin from his boat. He wants to see my fishing license. I tell him I'm not fishing. He demands it. We go round and round. I demand that he identify the code section that allows him to ask for a license when I am not fishing. He says since I am on the boat I must have a fishing license. Again ask for a code section. He doesn't answer and says he will now board our boat and does. Our conversation gets heated and I identify myself as having a loaded weapon since the boat is rolling and it is only a matter of time until he may see my weapon. I also inform him of which Federal agency I was once associated with. He demands my ccw and then says it is only good in the city which issued it. I see both the other agents shake their heads and roll their eyes. I try to explain it is good throughout the state and he argues with me. I demand it back and he refuses to give it to me. I then hand him my card and tell him he is headed towards a major lawsuit and internal affairs investigation. He gives it back to me and I tell him to get off our boat and get some training as he makes all F&G agents look stupid. He threatened to arrest me, but left.
Go back to town and make some inquiry. Find out he is an idiot with numerous complaints and F&G is transfering him elsewhere. Go figure.
Regards,, Steve
Re: Stopped for Open Carrying in California
Posted: Mon Mar 29, 2010 10:50 am
by DaveK
cruiserlarry wrote:How anyone feels safer, even when armed, knowing that all those around you are armed as well, is something I will never comprehend.
Therein lies the problem. It is really quite simple. Criminals are less likely to ply their trade when they know that there is a good chance that they will die if they try. See Exhibit A:
http://www.youtube.com/watch?v=e0D78JtxmqI.
cruiserlarry wrote:How people can rationalize the fear of a police state in this country, is even harder for me to understand. But it is the right of every citizen to occupy his time with worry over the negative and reactionary, instead of the positive and preemptive.
While you raise a good point, that law enforcement should enforce the law and make sure that the firearms are unloaded, you are ignoring reality, especially here in California. There is a significant disparity between the frequency of "law enforcement checks" as applied to the open carry crowd versus any other group. If motor vehicle drivers, for example, were subjected to same relative frequency of "law enforcement checks" for registration and insurance, as the open carry guys, you would see a similar outcry. The only reason why you and the other anti-gunners are so concerned, is a fear of citizens with firearms, which frankly,
I will never comprehend.
I think that Steve's take on this issue is right on the money. The legislative fear over a non-existent problem, will cause them to delete that portion of the law that allows open carry.