CA gun law

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Diggers

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So I'm interested in your take on this law. My interest in it was spawned by the following:

I was watching a show where an officer cited a guy for having a loaded gun in his vehicle. The mag was loaded and out of the gun there was no round in the chamber. The officer told the guy the mag was part of the gun thus the gun was loaded. This didn't sound right to me so I looked it up, here is what the CA law states.

It is unlawful to carry a loaded firearm on one’s person or in a vehicle while in any public
place, on any public street, or in any place where it is unlawful to discharge a firearm.
(Penal Code § 12031(a)(1).)
A firearm is deemed loaded when there is a live cartridge or shell in, or attached in any
manner to, the firearm, including, but not limited to, the firing chamber, magazine, or clip
thereof attached to the firearm. A muzzle-loading firearm is deemed loaded when it is
capped or primed and has a powder charge and ball or shot in the barrel or cylinder. (Penal
Code § 12031(g).)
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The section in bold I believe indicates the mag is NOT part of the firearm because it makes the statement about it (the mag) being attached to the firearm.

However the next law on the list:

For the purposes of Penal Code section 12023 (commission or attempted commission of a
felony while armed with a loaded firearm), a firearm is deemed loaded when both the
firearm and the unexpended ammunition capable of being discharged from the firearm are
in the immediate possession of the same person.
Click to expand...

Has a totally different definition of loaded if a felony is being commited.

I can see how the officer may have gotten confused. However having the gun in the vehicle IS a clear violation of CA PC 12025.

Carrying a Concealed Handgun Without a License on One's Person or Concealed in a
Vehicle
Pursuant to Penal Code section 12025, a person is guilty of carrying a concealed firearm
when he or she does any of the following:
• Carries concealed within any vehicle which is under his or her control, any pistol,
revolver, or other firearm capable of being concealed upon the person.
• Carries concealed upon his or her person any pistol, revolver, or other firearm
capable of being concealed upon the person.
• Causes to be carried concealed within any vehicle in which he or she is an occupant
any pistol, revolver, or other firearm capable of being concealed upon the person
Click to expand...


I think the officer cited the guy for the wrong thing.
 
How was the pistol and magazine found? I know the magazine wasn't inserted into the pistol, but were they both contained in a case together?

The reason that I ask is that, the officer could have stretched the definition by the notion that a pistol case or zipper pouch contained both items. The container, in effect, attaches them. It is a stretch, but IIRC, there are less-free states where ammo has to be completely apart from the firearm; i.e. pistol locked in a case and ammo in another.
 
From your details it sounds like the cop charged him with the wrong thing.

A loaded gun is actually PC12031. A concealed handgun loaded or unloaded is PC12025.
Case law has actually ruled confusingly that a loaded magazine can be a violation of PC12025 (the concealed statute not the loaded one) if the individual has immediate access to the handgun the magazine can use, even though the handgun is not illegally concealed and is not loaded, and thus is itself not in violation of either law, if that magazine is concealed and immediately accessible.
So if the person has immediate access to both the gun and the loaded magazine (no locks in between) and either one is concealed it can be a violation of PC12025.
The case law is very different for PC 12025 and PC12031, and the same legal logic does not apply for both.
Access to a loaded detachable magazine is never considered loaded per PC12031, the statute that deals with loaded firearms.

PC12023 is not likely the valid one either unless there was other crimes going on. Additionally PC12023 is an unreliable one to use because it does not stand on its own and if whatever felony it was relying on was to be plead to a misdemeanor or was unsuccessfully prosecuted, it too would become invalid as it requires a felony.

The OP said:
However having the gun in the vehicle IS a clear violation of CA PC 12025.
Click to expand...

No it is not. Having a concealed handgun in the vehicle is a violation of PC12025. It does not apply to long guns (you never mention the type of gun, but I assume handgun) and it only applies if the gun is concealed. Or a loaded magazine and the unconcealed handgun that can use it are both 'immediately' (precisely legally defined) available to the individual and the magazine is concealed.
It is perfectly legal to have an unloaded handgun and a loaded detachable magazine sitting on the passenger seat next to the driver, on the dash, worn openly on a belt, or otherwise not concealed while he drives down the road for example. It violates neither PC12025 nor PC12031.
(It only violates the California Gun Free School Zone statute when he drives within 1,000 feet of school property with an uncased handgun, and with schools everywhere it quickly will in most areas.)
 
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The reason that I ask is that, the officer could have stretched the definition by the notion that a pistol case or zipper pouch contained both items. The container, in effect, attaches them. It is a stretch, but IIRC, there are less-free states where ammo has to be completely apart from the firearm; i.e. pistol locked in a case and ammo in another.
Click to expand...

Not in California. A locked case creates an exemption to PC12025, and the magazine must actually be inside the firearm, or a round must be chambered in the firearm, for it to be considered loaded under PC12031.



Many much freer states have traditionally actually been quite a bit more restricted than California in terms of the definition of loaded and transport requirements.
In several someone without a concealed carry license had to keep the gun and ammo separate, or have one or both of them locked up, and some required locking them up separately.
Not so in California.
Primarily the School Zone Act from the 90s screws up the freedom to transport handguns now because you cannot drive anywhere without going through a school zone.
 
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Isnt it crazy the most criminally infested states have the worst freedom regards! :rolleyes: Theres nothing liberal about "liberals" in the defintion of the term other than being liberal in taking away other peoples' freedoms and money.
 
Sorry I wasn't clear, it was an handgun. I'm not sure where it was in the vehicle, the driver was asked if the had a gun and he said no first then when asked again said yes and actually picked it up with two fingers and handed it over. :eek: Then handed over the loaded mag a little later. I'm sure it wasn't in a locked case of any sort, and it most likely was not in open view, but I don't know this for sure.

Zoogster, I went and read PC 12025 again and it looks like you are quite correct about the specifics of that law. However, as you said it would be hard not to violate another law doing so AND if you get pulled over and an officer sees a gun on your seat you would most likely be removed from the car at gun point and cuffed first, and asked questions second. It doesn't sound like a good idea.

Also, where did the information about transporting handguns in a vehicle in a locked case come from? Is there another law that states handguns must be carried in vehicles this way?
 
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Also, where did the information about transporting handguns in a vehicle in a locked case come from. Is there another law that states handguns must be carried in vehicles this way?
Click to expand...


It was not a requirement, but it was an exemption to illegal concealment that it is in a locked case. Obviously you needed no exemption if you don't have it concealed.
Since most people wish to put their guns out of sight or may at some point, they would meet that exemption by putting it either in a locked case, or in the trunk, a trunk also counts as a case per PC12025.


Then in 1995 the California version of the Gun Free School Zone Act was enacted. This is PC629.9 and makes it a crime to take a handgun within 1,000 feet of school property. 1,000 feet from the edge of school property covers entire streets surrounding a school, and this means it became a crime to even drive on streets that have a school on them with a handgun in the car.
These are "school zones".
An exemption to the law is that the handgun is cased (cased it can go in the "school zone", just not on actual school property.)

The definition of school is one that teaches k-12, and includes both public and private schools.
People have drawn up maps to demonstrate the number of known schools in a typical small or medium sized city urban or suburban, and it is far more than most local residents are even aware of.

Rural areas are little better because while they have far fewer schools, they also have far fewer main roads in and out of town, and the few main roads they have typically have one or more of the local elementary, middle, or high school on them.



The result is a de-facto ban on traveling with a handgun outside of a locked case. But only de-facto because it is still legal in between the dozens of school zones you drive through just to get to the other side of town.
It is also entirely legal to go through school zones with long guns, only handguns are subject to the "school zone" restriction.
You would also be free to drive pre-plotted insane zigzag patterns that attempt to avoid all school zones.
Though an unplanned road closure or detour may turn you into a law breaker.
Such routes are also not possible to plan in many places, and would take extensive research on all schools in the area, subject to new additions at any time, and so only be feasible in a relatively small area.
Family or friends might also think you are crazy if you are constantly diverting from the main roads to cut through neighborhoods and taking indirect routes and adding considerable time to your drive. :neener:
It is impractical and unrealistic, if not impossible.
 
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CoRoMo said:
How was the pistol and magazine found? I know the magazine wasn't inserted into the pistol, but were they both contained in a case together?

The reason that I ask is that, the officer could have stretched the definition by the notion that a pistol case or zipper pouch contained both items. The container, in effect, attaches them. It is a stretch, but IIRC, there are less-free states where ammo has to be completely apart from the firearm; i.e. pistol locked in a case and ammo in another.
Click to expand...
Its a stretch alright. As a matter of fact its too much of a stretch. It is in fact legal in the PRC to carry an unloaded gun and a magazine in the same locked container but a LOT of cops don't know that. They also think you must put the ammunition in one part of the vehicle (the trunk perhaps) and the gun must be in another part of the vehicle (passenger compartment). Cops carry around a LOT of misinformation about guns. For example, there are still many who think its unlawful to openly carry an unloaded gun if the ammunition is on the person with the gun. They either are slow learners or just don't want to learn. Its not like these issues sprang up last week.
 
Thanks Zoogster, thats interesting information.

So it seems that the officer was in fact wrong to cite the guy for having a loaded handgun in his vehicle, because a loaded mag OUT of the gun isn't a loaded gun. (In this situation)

The violation of the handgun being concealed in the vehicle is up in the air because its unknown where the gun and mag were located in the vehicle.
 
http://ag.ca.gov/firearms/travel.php
Click to expand...

The California Attorney General's website is notoriously more restrictive than reality, actual law, or the case law. Instead always erring on the side of keeping people that want simplicity from breaking the law, assuming many will be unable to understand the legalese.

Rather than a big confusing page of how and when something is legal or illegal, they condense it down.
To condense it they are more restrictive than the law.
As a result the link does not represent the reality of the law, but rather a method of conduct that will allow people that do not know the details of the law to stay out of trouble.
If someone always transports a handgun it in a locked case for example they don't need to know when and where it is legal or illegal outside of a locked case.

Another example on that page is the long guns, the case law that deals with long guns goes further than "nonconcealable" which indirectly refers to the raw terminology in the statute.
A long gun covered up and concealed in a vehicle for example is not considered a concealed firearm under PC12025 while a handgun would be.
Yet the average person speaking English and not legal terminology may find the "nonconcealable" wording used by the attorney general website confusing. Combined with "generally" they may think it sometimes does apply to such firearms, when in reality their "generally" likely refers to variations like short barreled NFA restricted types.
After all a normal rifle or shotgun would certainly be concealable in the right container or coat, or hidden within a vehicle.
Case law clearly establishes the language of the statute did not refer to shotguns and rifles of non-restricted length (assuming they are not "assault weapons".)


That page also does not explain what "loaded" is and is not and never even references PC12031 which along with relevant case law (the case law is even more important than the statute on that one to understand it) is what deals with loaded guns in public.
It simply says they cannot be loaded. Yet a person would never know a detached loaded magazine for a long gun is always legal, and is legal in most situations for handguns (if neither are concealed or if one is locked up and as a result the two are not immediately available for use as defined in case law.) That case law even allows rounds in a side saddle on a long gun, etc
While some other states consider "loaded" to mean a round in the chamber and not inside an attached or fixed magazine, and others consider even possessing ammo and the gun at the same time "loaded" with variations in between.
Yet the reader of that summary would be left clueless.

(They of course could update their website sometime in the future after I write this and be more specific.)
 
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In CA open carry is legal IF the gun is not loaded. You can carry mags on your hip too. However, I read on one of the CA carry boards that someone was busted because he didnt have an empty mag in the gun, there was actually NO mag in the gun and the gun was considered loaded because it was too easy to load w/o a mag in-place. Sounds dumb to me... Anyway, couldnt find the OP. I did find this resource... which contridicts what I just wrote and the OP'ers post regarding the mag issue... it is confusing at best.

"In “People v. Clark” (1996), the California Court of Appeal clarified that in order to be “loaded” a firearm must have
ammunition “placed into a position from which it can be fired”. It even went so far as to point out as an example of what is not
loaded to include shells attached to a shotgun inside a buttstock shell carrier."
http://www.californiaopencarry.org/CaliforniaOpenCarry.pdf
 
there was actually NO mag in the gun and the gun was considered loaded because it was too easy to load w/o a mag in-place. Sounds dumb to me... Anyway, couldnt find the OP.
Click to expand...

That would have been a invalid charge.
People can and do get arrested for invalid charges.
Many police are just as ignorant of the details of the confusing laws as the citizens.

People v. Clark is one of the important case law precedents regarding proper interpretation of PC12031.


The fact that the charge gets dropped as soon as reviewed by a competent DA that knows it will just be a loss for them does not prevent the original arrest.
Later after some time spent in jail and bail payment the citizen who was breaking no laws can then petition the police department for a return of the confiscated firearm.
They then get to pay the fees associated with the process of passing a state mandated background check whenever police take possession of a firearm, to get their firearm back.
Eventually they should make it through that process and finally after never breaking a single law, and with a lighter wallet, be able to continue on with their law abiding tax paying life weeks or months later.
 
Also, where did the information about transporting handguns in a vehicle in a locked case come from? Is there another law that states handguns must be carried in vehicles this way?
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The PC for it is 12026.1 - that defines an exception to the 12025 'concealed weapon' law.

See also the Wiki articles on loaded (it summarizes the 600+ post thread noted above) and transport.
 
Kudos to the poster who quoted case law. What you and I think about what the law means is irrelevant. All that matters is how courts have interpreted it.
 
tepin said:
In CA open carry is legal IF the gun is not loaded. You can carry mags on your hip too. However, I read on one of the CA carry boards that someone was busted because he didnt have an empty mag in the gun, there was actually NO mag in the gun and the gun was considered loaded because it was too easy to load w/o a mag in-place. Sounds dumb to me... Anyway, couldnt find the OP. I did find this resource... which contridicts what I just wrote and the OP'ers post regarding the mag issue... it is confusing at best.
Click to expand...
That just shows a complete lack of understanding of the law, handgun function and officer safety.

If this did in fact happen in CA, I would think that the arresting officer had an interesting conversation behind closed doors with a superior later. If it had been one of my former trainees, he would have gotten a Gibb's headslap

One thing that makes for quick observation that a gun is unloaded is the lack of a magazine in the gun...granted that here could be a round in the chamber. Otherwise you'd have to constantly stop people who are legally exercising UOC to check if the mag contained cartridges :banghead:

Sidebar: an empty mag, in a unloaded gun, does not hinder the speed with which a full mag can be inserted...just as the lack of a mag in the gun does not speed up the loading of it
 
I live in CA. When I travel to and from the range, I keep all the mags empty; guns locked in container which is then stored in trunk, ammo locked in separate container locked in the trunk. It's a bit more than the law requires but it removes all doubt. A good friend of mine is an attorney, his (and now my) approach is why do something that might cause you grief and $10,000 to $20,000 in attorney fees to proove you were right in the first place. We had something similar happen to a local gun shop which was following the law regarding assualt weapons (much more restricted than the rest of the USA). He ended up spending $20K to $30K and he was correct but it cost him a lot of money. He now stays very clear of anything that might at all have a gray zone and I don't blame him. It takes a lot of sales to make up for that situation.
 
He now stays very clear of anything that might at all have a gray zone and I don't blame him.
Click to expand...

Everything in life has a gray zone. Where do you draw the line? If you want to avoid all gray zones don't own or touch a gun ever.
 
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