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AP - California handgun ban will result in long gun carry in public places

A ECNALG

Regular Member
Joined
Aug 20, 2009
Messages
138
Location
Orange County, California, USA
This is an excellent idea!

Folks who OC seem to be a little apprehensive about bringing a 12013 suit. I wonder: how would a person stopped and searched for "officer safety" when they aren't even in posession of a firearm come out in a lawsuit? If, say, one or two folks carried an obvious UOC firearm, and 15 others carried a cell phone in a covered holster of some sort, how would a lawsuit for illegal search and siezure pan out? They don't have to show probable cause for a search of your firearm, but what if you didn't even have a firearm? Wouldn't that be illegal search and seizure? 12031 only applies to searches of firearms, correct?

The argument would be that they would be searching for "officer safety" because they reasonably thought you were in posession of a firearm, but....

...carrying a firearm isn't against the law, in and of itself, right? How would they argue that their 12031 check of your firearm isn't unconstitutional when you don't even posess a firearm? (In a nutshell: Are 12031 checks constitutional for people who don't carry firearms?)
12031e authorizes the "inspection" of a firearm for ammunition, not the "search" of, or for, a firearm. Regardless, LE will routinely exceed their authority under 12031e and "search" the UOC firearm in an effort to locate the serial number. Once in their hands, the serial number invariably will (will be MADE TO, that is) come into plain view, thus allowing them claim Plain View Doctrine. Oh, yeah, "departmental policy" and "training" and "officer safety" are also cited as justification.

Even after temporarily relieving the individual of the UOC firearm, a Terry pat-down for additional firearms often occurs. Though "true" RAS of criminality is required for this pat-down, the LEO will claim that the UOC firearm gives rise to RAS that another fireams may be concealed upon the detainee. But again, its all about officer safety.

While a LEO may likely part a locked case from its owner (who is carrying neither openly nor concealed) on the grounds that the case itself could be used as a weapon (officer safety), the question is whether proximity of the carrier of an unmarked, locked case to carriers of UOC firearms gives rise to probable cause, which requires known facts and circumstances. Probable cause is a greater standard than reasonable articulable suspicion. And much greater than a mear hunch. 12031e does not authorize the inspection of the contents of a case, locked or unlocked, for a firearm.

In California, carrying a loaded firearm, openly or concealed without a permit is illegal (in most situations). Also, carrying an unloaded firearm concealed without a permit is illegal. Beginning 1-1-12, carrying an unloaded handgun openly (some exeptions apply) will be illegal.
 

A ECNALG

Regular Member
Joined
Aug 20, 2009
Messages
138
Location
Orange County, California, USA
There is a laundry list of exceptions so that a firearm may be legally concealed without a permit. See PCs 12026, 12026.1, 12026.2, 12027, 12027.1.
Exceptions noted.

However, these provisions deal primarily with either the transportation (not carrying on one's person) of firearms, or the carrying of a firearm on one's person on that person's residence, property or business. Even 12026.1 (b) only references firearms "capable" of being concealed:


The provisions of this section do not prohibit or limit the
otherwise lawful carrying or transportation of any pistol, revolver,
or other firearm capable of being concealed upon the person in
accordance with this chapter.


These exceptions, at least as I understand them, are not really relevent to the preceding discussion, and were therefore not raised.

Or did I miss something.

It's been known to happen. :confused:
 
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Superlite27

Regular Member
Joined
Jul 12, 2007
Messages
1,277
Location
God's Country, Missouri
12031e authorizes the "inspection" of a firearm for ammunition, not the "search" of, or for, a firearm.
What firearm?

Regardless, LE will routinely exceed their authority under 12031e and "search" the UOC firearm in an effort to locate the serial number.
...again: What firearm?

Once in their hands, the serial number invariably will (will be MADE TO, that is) come into plain view, thus allowing them claim Plain View Doctrine.
Serial number of what? My underwear?

Even after temporarily relieving the individual of the UOC firearm,...
Once again: What firearm?


While a LEO may likely part a locked case from its owner (who is carrying neither openly nor concealed) on the grounds that the case itself could be used as a weapon (officer safety), the question is whether proximity of the carrier of an unmarked, locked case to carriers of UOC firearms gives rise to probable cause, which requires known facts and circumstances. Probable cause is a greater standard than reasonable articulable suspicion. And much greater than a mear hunch. 12031e does not authorize the inspection of the contents of a case, locked or unlocked, for a firearm.
Ahhhhh! Now we're getting somewhere.

12031e does not authorize the inspection of the contents of a case, locked or unlocked, for a firearm.
This answers my question! Thank you.

Now that we've settled this....

Since someone may be carrying a flap holster containing a cell phone in the proximity of someone openly carrying.....

Wouldn't it be likely that the police would order this person to open their flap holster so that they may perform a 12031e check? Yet, we've already established that it does not authorize the inspection of a case, right? Therefore, wouldn't this serve to highlight the unconstitutionality of 12031e? As a matter of fact, you have stated that searching containers is held to a much higher standard than 12031e. After all, the carrying of a concealed firearm is not against the law (with a permit, of course) so how can the search be justified under "probable cause" in the first place?

If an officer stopped a person and did require them to open their holster, they would probably use the excuse of performing a 12031e check as a reason to do so. But since we have already established that this is an ineffective excuse, the officer can only fall back on having "probable cause" to perform a full on search of the container.

Once again: Probable cause for what? If the person had a ccw, it would be legal to have a concealed firearm. Therefore, creating "probable cause" to search them for something that would be perfectly legal with a permit is out the window for an excuse, as well.

It is all moot in the first place. There is no firearm. It isn't illegal to carry a cell-phone. However, performig a shake-down in order to examine a firearm (12031e) that doesn't exist, is.

The only thing an officer could state in court is that he was examining the container to establish if it contained a firearm "for officer safety". But, we've already established that the presence of a firearm is not sole grounds for a Terry stop, right? Isn't the officer required to establish reasonable articulable suspicion that a crime has been, is being, or is about to be committed in order to affect this?

The only suspicion he could claim of a violation of the law is carrying a concealed weapon without a permit.

But you've already recorded him searching you under the irrellevant 12031e excuse.

The ONLY way I can see that a successful 1983 lawsuit could be avoided is ONLY if he asked for a valid ccw permit before searching you.

Now, you don't need one because you aren't carrying a concealed weapon. However, lack of one would give him justification for searching your "cell phone case" for a concealed firearm.

...if he asked for your ccw permit first.

(You did have your recorder running, correct?)

Now, the question becomes: If a person does have a CCW permit, can he be searched in order to disarm him "for officer safety"? If there is no firearm, and it is perfectly legal for him to have one anyway (presence of a ccw) what "probable cause" can the officer give that a crime has been committed?

So we end up with:

Searching in order to perform a 12031e when a firearm is not present: Civil rights violation.
Searching for a concealed firearm on someone with a valid CCW without having probable cause that a crime has been committed: Civil Rights Violation.

The only way an officer can avoid a Civil Rights violation is if he asks a person to see his valid CCW permit and is refused before[i/] searching any container. This gives him a reasonable suspicion that the crime of carrying a concealed firearm without a permit has been and is being committed.

If he asks and is shown a valid CCW, what crime is he searching your for?
If he doesn't ask and searches you, once again: What crime is he searching you for?

All you've got is a cell phone.

Am I on track with this, or way, way, overthinking things?
 

mjones

Regular Member
Joined
Jul 15, 2008
Messages
974
Location
SoCal, , USA
Or did I miss something.
Locked Unloaded Concealed Carry (LUCC) is a viable option for some level of self defense - in my personal opinion, more viable the longgun carry for self defense. Most of us here in CA carry out our day to day activities traveling to/from/in a vehicle. So, its not an all-encompassing option, but certainly worth noting.

LUCC Info
 

A ECNALG

Regular Member
Joined
Aug 20, 2009
Messages
138
Location
Orange County, California, USA
Locked Unloaded Concealed Carry (LUCC) is a viable option for some level of self defense - in my personal opinion, more viable the longgun carry for self defense. Most of us here in CA carry out our day to day activities traveling to/from/in a vehicle. So, its not an all-encompassing option, but certainly worth noting.

LUCC Info
Agreed on both counts.

And as long as the officer/deputy agrees; and/or the assistant district attorney agrees; and/or the trial judge agrees; and/or the jury agrees; and/or the appeals court judge agrees with this interpretation of the penal code section in question, well then, all is right with the world and LUCC truly is a viable option. I am not trying to be sarcastic, eventhough I confess that it might read as if I am.
 

A ECNALG

Regular Member
Joined
Aug 20, 2009
Messages
138
Location
Orange County, California, USA
Since someone may be carrying a flap holster containing a cell phone in the proximity of someone openly carrying.....

Wouldn't it be likely that the police would order this person to open their flap holster so that they may perform a 12031e check? Yet, we've already established that it does not authorize the inspection of a case, right?
A flap holster is not a "case," lockable or otherwise. Flap holsters are discouraged as it is feared that use of such could be argued by LE as a form of "concealment."
 

A ECNALG

Regular Member
Joined
Aug 20, 2009
Messages
138
Location
Orange County, California, USA
...Still flying over everyone's head, I see.

PLEASE SHOW WHERE IT IS ILLEGAL TO CONCEAL A CELL PHONE.
You know the answer to this just as well as I do.

But please, by all means, please come visit our lovely state sometime after January 1st. And be sure to secure your cell phone within the confines of the flap holster that you will begin wearing on your belt moments after you pick up your luggage.

And be sure to bring lots of money so that you may hire a good attorney who will argue your position at trial that the police officer or sheriff's deputy violated your civil/constitutional rights because the LEO didn't know that you only keep a cell phone and pocket change in your handgun flap holster.
 

WhyHow

New member
Joined
Dec 16, 2011
Messages
3
Location
Orange County
Illegal Search

In California, when lawfully detaining a person (where reasonable suspicion or probable cause exists that a crime has been committed or is about to be committed), a LEO has the right to conduct a pat down search for weapons that might pose a danger to him/her. It matters not whether he/she finds a cell phone, a box of candy, or a rock; the officer still maintains the right to conduct the pat down. The only other instance where a full search may be conducted is if the detainee is arrested, in lawful custody, on probation, subject to a restraining order, or other lawful court order.
 

Grapeshot

Legendary Warrior
Joined
May 21, 2006
Messages
35,336
Location
Valhalla
Its going to be the day when I get stopped for walking down the street with my AR-15 in tow!! Haha
Now there is an introductory announcement of note. Trust that you are up to speed on applicable laws - the does and don'ts.
 

Mike

Site Co-Founder
Joined
May 13, 2006
Messages
8,710
Location
Fairfax County, Virginia, USA
In California, when lawfully detaining a person (where reasonable suspicion or probable cause exists that a crime has been committed or is about to be committed), a LEO has the right to conduct a pat down search for weapons that might pose a danger to him/her. It matters not whether he/she finds a cell phone, a box of candy, or a rock; the officer still maintains the right to conduct the pat down. The only other instance where a full search may be conducted is if the detainee is arrested, in lawful custody, on probation, subject to a restraining order, or other lawful court order.
Well, almost correct. The Fourth Amendment limits pat downs in cases of mere reasonable suspicion to situations in which the police officer also has a reasonable belief that the person "may be armed and presently dangerous." Terry v. Ohio, 392 U.S. 1, at 30.

Patting down everyong detained just to see if they have weapons is unconstitutional. In fact, the officer must already have not only reason to believe the detained citizen is armed, but also that she is "presently dangerous."

One remedy for unconstitutional pat downs is suppression of evidence. So police officers who unconstitutionally pat down people are just helping bad guys escape punishment, and violating the privacy and dignity of good people who get groped without good cause.

Another remedy for unconstitutional pat downs is a law suit for damages. Here the taxpayers pay for the unconstitutional pat downs.
 

Mindcrime121

New member
Joined
Oct 3, 2012
Messages
5
Location
Northern California
We here in NV applaud this bold move by Gov Moonbeam. We figure it a real advantage to those of us here in the Silver State. First we expect migration of patriots from there to here, a good thing, and the movement of our thugs from here to CA where the pickins’ is easier, an even better thing. Maybe the ultra liberal, wet your pants CA expatriates that came here in the boom years will move back to the state with a bear on its flag and we can get rid of that bad influence as well. We are just hoping that this happens before they catch on that Nevada with all its firearms is a far safer place to live and those that support such nonsense will want to move here too and bring it here with them as always seem to happen.

TBG
NV is not a wonderland of personal freedoms. When I was in my early 20's I went to Job Corp outside of Reno and was told that we would be "kicked out" for possession of any sort of fire arm or explosives, up to and including a fire cracker, but on site security was a joke. Nothing was said about the LEGALITY of owning and possessing a registered side arm. A bunch of idiots pissed off the loca gang, who then threatened to come "shoot up" the place. I bought a side arm, kept it in my dorm locker for self protection, and thankfully I was not there the night the gang followed up on the threat. A while later through "random locker searches" my side arm was discovered. The cop that responded to the call said that I had broken no laws, and all they could do was kick me out. They said they would ship my weapon to me and put me on a plane home. After a couple weeks I called to see why the hell I had not received my weapon back and was informed they were in the process of building a case and would give no further info. After a couple of months they decided to charge me with a gross misdemeanor for having a weapon on "school grounds", based on the fact that Job Corp LEASES the property from the college. Total scam!!

So ended up a couple years later I was in Tahoe and took care of the matter. wow, did they SCREW ME!! Locked me up and required bail, then I had to return weeks later for the case from California, only to have my defender not even show up and the bailiff telling me that they were really going after any gun related stuff and I should take the plea they offered of carrying a concealed weapon without a permit, basic misdemeanor, $500 fine and they keep my gun to have it melted down or some crap! It was that or have to drive from central Cali all over again for a rescheduled hearing and risk them really going after me. Being young and ignorant, I took the deal.

So NV is NOT someplace I feel like my gun rights are "protected". Granted, better than Ca., but certainly not the way it should be!
 

Donovan Yi

New member
Joined
May 20, 2013
Messages
2
Location
Millbrae, California, United States
loophole in ab 144

hey, i'm really new to the idea of open carry and by the time i found out about it, everything was banned already. but i was wondering if any of you had seen or confirmed anything in this video. it might be a viable option for bypassing the laws that are in place. if this is the case, then there is no way california could ever take our right to open carry away from us unless they put it to vote through the house and senate.

http://www.youtube.com/watch?v=aIhIfZU3szE

P.S. im wary of trusting it now that i watched it again, seeing as how he just called a magazine a clip... lol
 
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Felid`Maximus

Activist Member
Joined
Nov 12, 2007
Messages
1,711
Location
Reno, Nevada, USA
hey, i'm really new to the idea of open carry and by the time i found out about it, everything was banned already. but i was wondering if any of you had seen or confirmed anything in this video. it might be a viable option for bypassing the laws that are in place. if this is the case, then there is no way california could ever take our right to open carry away from us unless they put it to vote through the house and senate.

http://www.youtube.com/watch?v=aIhIfZU3szE

P.S. im wary of trusting it now that i watched it again, seeing as how he just called a magazine a clip... lol
All the guy does in the video is conjecture about things he was told by cops and some website he went to that he won't share with us. He has no idea what he is talking about and if he open carries in defiance of the law sooner or later he's likely to find himself prosecuted by the the state of California.
 
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ConditionThree

State Pioneer
Joined
May 22, 2006
Messages
2,223
Location
Shasta County, California, USA
hey, i'm really new to the idea of open carry and by the time i found out about it, everything was banned already. but i was wondering if any of you had seen or confirmed anything in this video. it might be a viable option for bypassing the laws that are in place. if this is the case, then there is no way california could ever take our right to open carry away from us unless they put it to vote through the house and senate.

http://www.youtube.com/watch?v=aIhIfZU3szE

P.S. im wary of trusting it now that i watched it again, seeing as how he just called a magazine a clip... lol
This is why we do not get our legal advice from;

1) Law enforcement officers
2) YouTube videographers
3) Random internet strangers

Loaded open carry is still lawful in unincorporated territory where discharge has not been prohibited by local ordinance. Unloaded open carry is still lawful provided you fit into one of the 116 exemptions written into PC26350. If you do not already know what this means, please consult an attorney.
 

XD40sc

Regular Member
Joined
Mar 31, 2013
Messages
402
Location
NC
Locked Unloaded Concealed Carry (LUCC) is a viable option for some level of self defense - in my personal opinion, more viable the longgun carry for self defense. Most of us here in CA carry out our day to day activities traveling to/from/in a vehicle. So, its not an all-encompassing option, but certainly worth noting.

LUCC Info
Locked Unloaded Concealed Carry :shocker: really, you have to put up with such lunacy in CA. Yea, it an option for "some level" of self defense, so is a rock.

I can open carry, loaded and chambered, without any permit at all. I can concealed carry, loaded and chambered, with a permit.
Carrying a gun that is not ready to fire is about as useful as carrying a rock.

Perhaps long guns are the answer, at least they make a decent club.
 
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