Stopped for Open Carrying in California

[Dennis David]

The personal comments on this forum seem a lot different than what I read on Expedition Portal. There it's all red meat kinda stuff.

[DaveK]

The personal comments on this forum seem a lot different than what I read on Expedition Portal. There it's all red meat kinda stuff.

Dennis:

???? You will need to give me the subtitles there. Is red meat good or bad?

[Dennis David]

People there had much stronger opinions and here it seems more nuanced. Just my perception.

[DaveK]

Interesting observation. Now I get the red meat reference.

I think that what you are perceiving is more of a quality that we strive to maintain here, consisting of civility. As is evident from the various posts involving firearm matters, there is an occasional difference of opinion, but make no mistake about it, the opinions held by our members, on both sides, are strong and solid. That diversity of opinion can either serve as a basis for a hand to hand combat type of discussion or a civil discourse where opposing ideas are presented without animus or hatred. We strive to maintain a friendly environment that remains civil and respectful, even in the light of differing opinions.

The internet, and perhaps forums in particular, are all too often, IMO, a battle ground for opposing ideas. Larry and I do not always see eye to eye on every issue, but no one enjoys getting together and having a good laugh or enjoying a good trip more than the two of us.

[BorregoWrangler]

There are many memos from different depts and jurisdictions.

That just about sums it up. Often you'll get different views or interpretations from different PD's. Most of what I know comes from police officers I know (post #8) and those who have experience open carrying. However like I said, I certainly don't have knowledge of all the issues involved.

That's also an interesting experience you had with that game warden. It does sound like you were in the right. It would seem that if you were actually engaged in fishing or had fish on your boat that you would have to produce a license on demand, but not by just having fishing gear near you.

Interesting observation. Now I get the red meat reference.

I think that what you are perceiving is more of a quality that we strive to maintain here, consisting of civility. As is evident from the various posts involving firearm matters, there is an occasional difference of opinion, but make no mistake about it, the opinions held by our members, on both sides, are strong and solid. That diversity of opinion can either serve as a basis for a hand to hand combat type of discussion or a civil discourse where opposing ideas are presented without animus or hatred. We strive to maintain a friendly environment that remains civil and respectful, even in the light of differing opinions.

The internet, and perhaps forums in particular, are all too often, IMO, a battle ground for opposing ideas. Larry and I do not always see eye to eye on every issue, but no one enjoys getting together and having a good laugh or enjoying a good trip more than the two of us.

Right on, Dave!

[BorregoWrangler]

LA Sheriff's Department Open Carry Memo

OPENLY CARRIED FIREARMS

Scenario:
You respond to a "Man with a gun" call at a local shopping mall. You locate the suspect walking through the mall. He is armed with a handgun carried in a belt holster. You detain the individual and determine that the handgun is unloaded. The subject has two fully loaded, highcapacity magazines for the weapon in his pocket. The subject explains that he is a believer in the Second Amendment and is carrying the weapon because he has a right to do so. What are your options as the handling deputy?

Discussion:
Earlier this year, the U.S. Supreme Court ruled in District of Columbia v. Heller (128 S.Ct 2783) that the Second Amendment provided an individual right for persons to "keep and bear arms". Just as the right to free speech does not include the right to shout "fire" in a crowded theater, the Heller decision recognized reasonable limits on the exercise of that right. Prior to the Heller decision, case law in the 9th Federal Circuit (including California) held that the Second Amendment did not apply to individuals. In many respects, Heller is a landmark case. When a landmark decision is made, the Supreme Court does not decide all questions relating to the issue. It rules on the primary question, and then leaves it to lower courts to define the limits of the ruling through subsequent cases. Heller does not appear to impact any of California's weapons laws, but it does expose those laws to new challenge.

We have seen recent evidence of various gun rights advocacy groups attempting to raise those challenges. In several recent events, law enforcement officers have been presented with situations similar to the one above. Some of these events were audio recorded (and possibly video-recorded as well). It appears that the subjects were attempting to lure the officers into taking unfounded enforcement efforts to bring attention to their cause and/or to form the basis for court action.

This is also occurring at a time when law enforcement has been presented with several tragic events involving "active shooters". This presents a significant challenge to responding deputies. It is difficult to determine the intent of an armed person. If deputies casually approach an armed individual who proves to be an "active shooter", the consequences can be tragic for the deputy and public. On the other hand, appropriate officer safety measures in contacting armed persons may seem excessive to those who believe they are only securing a constitutional right.

We are not aware of any instances involving armed persons where the proper use of officer safety measures has produced liability for the agency or officer/deputy. Penal Code §12031(e) provides you with the authority to inspect any firearm carried in public to determine if it is loaded. Refusal to submit to an inspection is cause to arrest for a violation of §12031. This is an inspection authority and no probable cause is required to conduct an inspection. It should be noted that the purpose of this inspection is limited to a determination of whether or not the weapon is loaded.

You have the ability to run a records check of the weapon's serial number if it is visible to you during the course of the weapon inspection. Considerable case law holds that you are not required to "close your eyes" to things you observe during the lawful performance of your duties. Your authority to detain the subject while conducting the 12031(e) inspection is limited.

Once it is established that the weapon is being lawfully carried, and there are no other circumstances justifying the detention of the subject, the detention must end. As a general rule, with some exceptions discussed below, it is not illegal to carry an unloaded firearm in a public place. Here is a partial listing of circumstances where the simple possession of an unloaded firearm, in public, is prohibited:

• Within 1,500 feet of a public or private school (grades K-12) (626.9 PC). (Note: specific exceptions exist for residences, and for the transportation of firearms within containers.)

• Upon the grounds of a university or college (626.9 PC)

• By persons with felony convictions or by drug addicts (12021(a)(1) PC)

• By persons with specified misdemeanor convictions (12021(a)(2) +12021(c)(1) PC) (Note: The specified crimes are primarily assaults, batteries, domestic violence and weapons violations.)

• In connection with street gang activity (12021.5 PC)

• With the intent of committing a felony (12023 PC)

• While wearing a mask to conceal identity (12040 PC)

• Possession of a concealable firearm by a minor (12101 PC)

• By persons adjudicated with mental disorders under specified conditions (8103(a)(1) WIC)

• By persons who have been detained under 5150 WIC as a danger to self or others within the preceding five years. (8103(f)(1) WIC)

When is a firearm considered "Loaded"?
The short answer is that it depends on the circumstances. Ordinarily, a firearm is loaded if the ammunition is placed into the weapon in a manner that it could be fired. If the suspect is being charged with carrying the firearm with the intent to commit a felony (12023 PC), then a special definition of "loaded" applies. The firearm is considered "loaded" if the weapon, and ammunition capable of being fired in the weapon, are in the immediate possession of the subject (12001(j) PC). Penal Code § 171e provides a similar definition of "loaded" for firearms carried in the state capitol or offices (171c PC), and in the residences of designated elected officials (171d PC). Deputies should be familiar with this special definition, and be careful not to apply it to circumstances not involving a violation of sections 171c, 171d, or 12023.

The majority of offenses involving the carrying of a loaded weapon fall under 12031 PC. Section 12031(g) defines a weapon as being loaded when the ammunition is in, or attached to, the firearm. It specifically provides that a weapon is loaded if there is ammunition in the firing chamber, magazine or clip. The California Court of Appeal considered the question of when a weapon is loaded in the case of People v. Harvey Lee Clark (45 Cal App. 4th 1147). The defendant had a single-shot shotgun which had no shell in the chamber. It had a buttstock shell holder which held live rounds. The court clarified the "attached to" language of 12031(g) holding that the weapon was unloaded since the rounds could not be fired from the buttstock holder.

High Capacity Magazines (more than 10 rounds):
Effective January 1, 2000, it became a felony to manufacture, import, sell, keep for sale, give, or lend, a high-capacity magazine. There is no prohibition on the simple possession of a high capacity magazine.

Conclusion:
Law enforcement officers have the duty to protect the safety and rights of all members of our society. The "Open Carry" movement provides a very unique situation where a lawfully armed person will present an apparent threat to others. Penal Code § 12031(e) is your primary tool to resolve these cases. It is also very important to remain cognizant of the agendas that various advocacy groups may possess. The best advice for dealing with any individual who may be trying to test you is: Remain professional, know the law, and enforce it fairly.

Los Angeles County Sheriff's Department
NEWSLETTER
Field Operations Support Services
VOLUME 09 NUMBER 01 DATE: January 5, 2009

John D. Williams
LOS ANGELES COUNTY SHERIFF DEPT.

[cruiserlarry]

Criminals are less likely to ply their trade when they know that there is a good chance that they will die if they try.

Criminal minds do not work in a rational manner - that is why this line of thinking, that you will scare a violent criminal with force, is not valid or realistic, with rare exception. If violent criminals were thinking logically, they wouldn't be violent crinimals...

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.

Obviously, you deal with mostly intelligent, rational folks - whether or not they are armed. Read the newspaper any day - it's filled with incidents of crimes of passion, retribution, and people who get shot as a side effect of unrelated violence. This situation is not defendable, regardless of what you're packing. It's the people using the irrational thinking that being armed with give you more security with less risk than being unarmed, in general, that scares me - not the weapons themselves.

Larry and I do not always see eye to eye on every issue, but no one enjoys getting together and having a good laugh or enjoying a good trip more than the two of us.

Always true - looking forward to April 10th,

[BorregoWrangler]

Also the DDA opinion from LA says what I believe is the correct view.

Regards, Steve
http://www.hoffmang.com/firearms/carry/ ... 009-03.pdf

The San Diego DA memo that you have linked here actually disputes the DDA opinion from LA.

"California does not have such a statute and there is case law which suggests that it is not a PC 148 if you don't identify yourself during a lawful detention."

From what I've heard, San Diego dispatch has recently been handling open carry "MWG" calls much better nowadays. If an individual is going about their lawful business (not brandishing or acting in any threatening manner) dispatch will tell the caller that it is lawful and to only call back if an actual crime is being committed, such as brandishing, etc. They may or may not send any units to investigate.

[DaveK]

Criminal minds do not work in a rational manner - that is why this line of thinking, that you will scare a violent criminal with force, is not valid or realistic, with rare exception. If violent criminals were thinking logically, they wouldn't be violent crinimals...

Yes, it is true that criminal minds do not work in a rational manner. The instinct for survival however, will prevail in most minds, including those whose "minds do not work in a rational manner". It is an instinct common to all lower animal forms, including criminals. For these people, the knowledge that their next victim may be armed, will provide a greater measure of deterrence and that is a good thing!

On the other hand, there is a segment of the criminal element whose survival instinct is missing , and they will act regardless of the risks. For them, there is only one deterrent. For many people, the ability to carry represents an infinitely more acceptable alternative than the prospect of becoming an easy target for a deranged killer intent on inflicting harm.

Obviously, you deal with mostly intelligent, rational folks - whether or not they are armed. Read the newspaper any day - it's filled with incidents of crimes of passion, retribution, and people who get shot as a side effect of unrelated violence. This situation is not defendable, regardless of what you're packing. It's the people using the irrational thinking that being armed with give you more security with less risk than being unarmed, in general, that scares me - not the weapons themselves.

This is one of the most frustratingly misguided arguments that the anti-gun crowd uses. Let's take this by the numbers:
1. It is the height of naivete to believe that the criminally inclined will magically alter their ways if we merely get rid of guns. Crimes of passion, retribution and other unrelated acts of violence will occur regardless of the law and no amount of gun banning will stop it. If we could stop crime by the simple passage of a law, we would have done it long ago.
2. There is no evidence whatsoever that the incidents of crime that you mention, have been caused by a single member of the open carry movement while they were carrying. I am not aware of a single reported crime attributable to supporters of open carry. There is no connection between the two.
3. The argument, that you are less secure when carrying, is not only disturbingly illogical but factually wrong. If you believe this, it means that an unarmed person is as secure as an armed person when confronting a criminal. I guess that police should not carry guns.
4. What should really scare you is the non stop assault against your right to self defense. If you choose to not take advantage of this opportunity, that, of course, is your right.

Always true - looking forward to April 10th,

And Summer Fest too!!!

[sdnative]

While I support OC, I do not see myself practicing it in an urban environment. What I am interested in however is the ability to carry a handgun on my person as protection in the "wilderness". Assuming I am not in a state park or other restricted area, what restrictions are there to OCing in this capacity? What about an unloaded shotgun strapped to my pack with shells in a hip pouch as an example? I have been hesistant to travel alone for lack of protection of pretators (whether animal or human), and have been very interested in carrying some type of protection while out of my vehicle.

I would be interested in hearing some thoughts on this, in addition to OCing in an urban environment. Very good discussion so far.