CA_Libertarian
State Researcher
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Glad to see you two got back on topic.
:lol:
Glad to see you two got back on topic.
:lol:
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Does anyone carry in a locked container?
- Thread starter Justice76
- Start date
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This has been a wonderfully educational and enlightening thread to read through. I'm glad I started it! :celebrate I'm really quite thankful for everyone's contributions to this subject matter.
Misunderstandings aside, there still seems to be ambiguity regarding the application of traveling with an unloaded gun in a locked container with regards to
1) if that method is treated the same as a gun openly carried unloaded or if as a concealed weapon and
2) what the phrase "for any lawful purpose" is referencing i.e. the carrier's general activities or activities specifically for the gun being carried.
It seems that the implication is that we are to use the rather specific limitations of 12026.2 when traveling in general, but this might not be the case if we are using our car and the errands we are doing are all "lawful".
Unless I'm missing something, it seems we have not arrived at a consensus as to the legality of unloaded locked carry (ULC?) as a means for general carry. Yes? No?
This has been a wonderfully educational and enlightening thread to read through. I'm glad I started it! :celebrate I'm really quite thankful for everyone's contributions to this subject matter.
Misunderstandings aside, there still seems to be ambiguity regarding the application of traveling with an unloaded gun in a locked container with regards to
1) if that method is treated the same as a gun openly carried unloaded or if as a concealed weapon and
2) what the phrase "for any lawful purpose" is referencing i.e. the carrier's general activities or activities specifically for the gun being carried.
It seems that the implication is that we are to use the rather specific limitations of 12026.2 when traveling in general, but this might not be the case if we are using our car and the errands we are doing are all "lawful".
Unless I'm missing something, it seems we have not arrived at a consensus as to the legality of unloaded locked carry (ULC?) as a means for general carry. Yes? No?
ChickenFarmer
Regular Member
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I believe that the presumption is that, unless you are intending to commit a crime and this can be proven, you are able to carry in a locked container.
I believe that the presumption is that, unless you are intending to commit a crime and this can be proven, you are able to carry in a locked container.
CA_Libertarian
State Researcher
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Justice76 wrote:
1) 12025 and 12031 are entirely unrelated. Remember, "open carry" is not a statutory term. We simply use that term to distinguish from the more commonly used method of 'concealed carry.' Since these statutes stand separately, and stand alone, it is possible for a firearm to fall under one, the other, or both statutes.
For example, here are 4 ways to carry:
2) This is the question only a court can answer: what constitutes "any lawful activity?" Logically, that which is not unlawful is lawful. So, as long as you are not violating any law, you fall under this exemption. Following this line of thinking, 12025 would only apply if you were transporting the firearm while committing a gun-related crime.
However, I could easily see a court read this as saying, "All concealed firearms are illegal, unless expressly proscribed as a legal form of transporting a firearm." For example, 626.9 requires that we conceal our short guns. This would trigger the 'legal transport' exemption, so as not to eliminate the only means of transporting through a 'school zone.'
It is my sincere hope to see 12025 struck from the books in my lifetime. People should be armed when, where, and in whatever manner they desire. I think it would be enough to have a simple statute making it an enhancement when committing a real crime.
Justice76 wrote:
I don't know of any case law settling this issue, which is the only real way we'll know for sure. However, we can discuss further...
1) 12025 and 12031 are entirely unrelated. Remember, "open carry" is not a statutory term. We simply use that term to distinguish from the more commonly used method of 'concealed carry.' Since these statutes stand separately, and stand alone, it is possible for a firearm to fall under one, the other, or both statutes.
For example, here are 4 ways to carry:
- Not concealed, not loaded (no 12025 or 12031 violations)
- Not concealed, loaded (no 12025 violation, possible 12031 violation if in a prohibited area)
- Concealed, not loaded (12025 violation unless exempted, no 12031 violation)
- Concealed, loaded (12025 AND 12031 violations)
2) This is the question only a court can answer: what constitutes "any lawful activity?" Logically, that which is not unlawful is lawful. So, as long as you are not violating any law, you fall under this exemption. Following this line of thinking, 12025 would only apply if you were transporting the firearm while committing a gun-related crime.
However, I could easily see a court read this as saying, "All concealed firearms are illegal, unless expressly proscribed as a legal form of transporting a firearm." For example, 626.9 requires that we conceal our short guns. This would trigger the 'legal transport' exemption, so as not to eliminate the only means of transporting through a 'school zone.'
It is my sincere hope to see 12025 struck from the books in my lifetime. People should be armed when, where, and in whatever manner they desire. I think it would be enough to have a simple statute making it an enhancement when committing a real crime.
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Justice76 wrote:
However, I still maintain that it is. I believe Penal Code 626.9(c)(2), the K-12 reg is indicative.
Yes, "transportation" is mentioned in the second (emphasis on "second") paragraph of subdivision two (2), however, I invite anyone to re-review the rules of grammar as it relates to paragraphs. I.e. This section (as, fundamentally, do the firearms rules) deals with "possession" NOT "transportation."
That's my statement and I'm sticking to it
.
Justice76 wrote:
I think most (including marshal) would say that unloaded locked carry (ULC) as a means for general carry is a "no."
However, I still maintain that it is. I believe Penal Code 626.9(c)(2), the K-12 reg is indicative.
Code:
626.9. (a) This section shall be known, and may be cited, as the
Gun-Free School Zone Act of 1995.
(b) Any person who possesses a firearm in a place that the person
knows, or reasonably should know, is a school zone, as defined in
paragraph (1) of subdivision (e), unless it is with the written
permission of the school district superintendent, his or her
designee, or equivalent school authority, shall be punished as
specified in subdivision (f).
(c) Subdivision (b) does not apply to the possession of a firearm
under any of the following circumstances:
(2) When the firearm is an unloaded pistol, revolver, or other
firearm capable of being concealed on the person and is in a locked
container or within the locked trunk of a motor vehicle.
This section does not prohibit or limit the otherwise lawful
transportation of any other firearm, other than a pistol, revolver,
or other firearm capable of being concealed on the person, in
accordance with state law.That's my statement and I'm sticking to it
.ChickenFarmer
Regular Member
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Nick the Sniper wrote:
Nick the Sniper wrote:
Do you have a cite for that? It could be helpful.
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ChickenFarmer wrote:
ChickenFarmer wrote:
"Instead, section 12031 is narrowly tailored to reduce the incidence of unlawful public shootings, while at the same time respecting the need for persons to have access to firearms for lawful purposes, including self-defense." People v. Flores (2008) ___ Cal.App.4th ___ , DJDAR 18615, WL 5265343
cato
Newbie
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Nick the Sniper wrote:
Nick the Sniper wrote:
If following 12026.1a to the letter I'd say "yes" as it also inclues "to/from...for any lawful purpose".
marshaul
Campaign Veteran
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CA_Libertarian
State Researcher
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Nick the Sniper wrote:
I'm not sure I agree fully with Cato. While 12026(1)(a) does exempt you from 12025 for "any lawful purpose" (which means anything that is not otherwise a crime), we must be aware of a very important caveat to this exemption: it only applies while in your motor vehicle and when on your way directly to/from your vehicle.
So, if you travel indirectly or don't have a vehicle nearby, it may become difficult to argue you qualify for this exemption.
Nick the Sniper wrote:
Being exempt from 626.9 does not also exempt you from 12025. I think it is important we don't muddle the two statutes and their exemptions.Justice76 wrote:I think most (including marshal) would say that unloaded locked carry (ULC) as a means for general carry is a "no."
However, I still maintain that it is. I believe Penal Code 626.9(c)(2), the K-12 reg is indicative.
Yes, "transportation" is mentioned in the second (emphasis on "second") paragraph of subdivision two (2), however, I invite anyone to re-review the rules of grammar as it relates to paragraphs. I.e. This section (as, fundamentally, do the firearms rules) deals with "possession" NOT "transportation."Code:626.9. (a) This section shall be known, and may be cited, as the Gun-Free School Zone Act of 1995. (b) Any person who possesses a firearm in a place that the person knows, or reasonably should know, is a school zone, as defined in paragraph (1) of subdivision (e), unless it is with the written permission of the school district superintendent, his or her designee, or equivalent school authority, shall be punished as specified in subdivision (f). (c) Subdivision (b) does not apply to the possession of a firearm under any of the following circumstances: (2) When the firearm is an unloaded pistol, revolver, or other firearm capable of being concealed on the person and is in a locked container or within the locked trunk of a motor vehicle. This section does not prohibit or limit the otherwise lawful transportation of any other firearm, other than a pistol, revolver, or other firearm capable of being concealed on the person, in accordance with state law.
That's my statement and I'm sticking to it
I'm not sure I agree fully with Cato. While 12026(1)(a) does exempt you from 12025 for "any lawful purpose" (which means anything that is not otherwise a crime), we must be aware of a very important caveat to this exemption: it only applies while in your motor vehicle and when on your way directly to/from your vehicle.
So, if you travel indirectly or don't have a vehicle nearby, it may become difficult to argue you qualify for this exemption.
CA_Libertarian
State Researcher
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Nick the Sniper wrote:
I do not encourage unlawful behavior, but consider this: a concealed firearm, if carried in a discreet manner, is unlikely to ever be the focus of a police investigation. Legal or not, it should never be discovered unless it is used for self defense. In that case, you hope the cops, DA, judge, and/or jury are reasonable people that have the interest of justice at heart. If you absolutely have to carry a gun, you might just have to take on the legal risks (at least until we get the laws fixed in this state).
Nick the Sniper wrote:
I don't think there is a general consensus yet... we've only had a few people discussing the topic, and none of us are lawyers (to my knowledge). So, a consensus wouldn't matter much anyhow.
I do not encourage unlawful behavior, but consider this: a concealed firearm, if carried in a discreet manner, is unlikely to ever be the focus of a police investigation. Legal or not, it should never be discovered unless it is used for self defense. In that case, you hope the cops, DA, judge, and/or jury are reasonable people that have the interest of justice at heart. If you absolutely have to carry a gun, you might just have to take on the legal risks (at least until we get the laws fixed in this state).
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CA_Libertarian wrote:
And I agree with your second statement, however, with the addition that with some additional study of police contacts, search and seizure laws, and the rules of evidence, one may be able to stave off a criminal complaint filing at all.
CA_Libertarian wrote:
Duly noted, maybe the precise phrase should have been "the general consensus as it relates to those on this thread that entertained the question in depth..."
And I agree with your second statement, however, with the addition that with some additional study of police contacts, search and seizure laws, and the rules of evidence, one may be able to stave off a criminal complaint filing at all.
ChickenFarmer
Regular Member
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12026.1
Since self defense is any lawful purpose, as long as the firearm capable of being concealed on the person is locked in an approved container, I consider that a feasible argument.
12026.1
Since self defense is any lawful purpose, as long as the firearm capable of being concealed on the person is locked in an approved container, I consider that a feasible argument.
Code:
(2) The firearm is carried by the person directly to or from any
motor vehicle for any lawful purpose and, while carrying the firearm,
the firearm is contained within a locked container.marshaul
Campaign Veteran
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You're right, self-defense is a lawful purpose. The problem is that exemption only applies "directly to or from any motor vehicle".
You're right, self-defense is a lawful purpose. The problem is that exemption only applies "directly to or from any motor vehicle".
ChickenFarmer
Regular Member
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marshaul wrote:
So, arguably, since I am going directly TO or FROM a vehicle for lawful purpose (self defense) I am exempt. That is to say, at all times I have a lawful purpose, so I should be exempt.
When I come from a locked container to an open carry holster I am legal as the purpose is still self defense and belt holster carried is exempt. When I go from holster to locked container I am still in compliance...
So whether it be OC or in a locked container, I have a legal argument for either situation....
IANAL, but I should be!!! Haha!!!
marshaul wrote:
"THE FIREARM IS CARRIED BY THE PERSON DIRECTLY TO OR FROM ANY MOTOR VEHICLE FOR ANY LAWFUL PURPOSE, WHILE CARRYING THE FIREARM, THE FIREARM IS CONTAINED WITHIN A LOCKED CONTAINER."
So, arguably, since I am going directly TO or FROM a vehicle for lawful purpose (self defense) I am exempt. That is to say, at all times I have a lawful purpose, so I should be exempt.
When I come from a locked container to an open carry holster I am legal as the purpose is still self defense and belt holster carried is exempt. When I go from holster to locked container I am still in compliance...
So whether it be OC or in a locked container, I have a legal argument for either situation....
IANAL, but I should be!!! Haha!!!
marshaul
Campaign Veteran
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Well, sure, but I don't think you were the first to figure that out.
The point was that you have to make the transition to OC -- locked container isn't good enough once you're no longer going "directly to or from" your vehicle.
Well, sure, but I don't think you were the first to figure that out.
The point was that you have to make the transition to OC -- locked container isn't good enough once you're no longer going "directly to or from" your vehicle.
CA_Libertarian
State Researcher
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ChickenFarmer wrote:
1) lawful purpose
2) be in your motor vehicle or be traveling directly to/from your motor vehicle
So, the exemption would end as soon as you stop traveling directly to/from your motor vehicle. So, as long as your car is nearby, it shouldn't be difficult to argue you were moving to/from your vehicle. However, I'm still not certain the courts will agree with our logic.
ChickenFarmer wrote:
Again, it is important to note the exemption has TWO criteria that BOTH must be met in order to enjoy the exemption:
1) lawful purpose
2) be in your motor vehicle or be traveling directly to/from your motor vehicle
So, the exemption would end as soon as you stop traveling directly to/from your motor vehicle. So, as long as your car is nearby, it shouldn't be difficult to argue you were moving to/from your vehicle. However, I'm still not certain the courts will agree with our logic.