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OpenCarry.org - Discussion Forum > Stories From The States > California > Question RE: LOC on Private Property that is NOT yours.
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| OpenCarry.org - Discussion Forum > Stories From The States > California > Question RE: LOC on Private Property that is NOT yours.
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SomeGuyInCali Regular Member 
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Does anyone know the legality of LOC on private property that is not yours but you are authorized to be there. The owner of the property is not present to be aware of your LOC status. Here's the scenario: A Real Estate Appraiser goes into a bad neighborhood to valuate a bank repossessed vacant home. Often times these properties become inhabited by hiding criminals, drug labs or disgruntled homeowners. It goes without saying that these properties can be dangerous for a real estate agent or appraiser. The appraiser is, however, fully authorized to be on the property by virtue of the fact that the lending back has hired said appraiser to valuate the property. The appraiser faces an attacker coming at him/her, draws LOC weapon and shoots attacker. Since an appraiser has little chance of actually speaking with someone to "authorize" a load gun on the property what are the legalities? I did some research and did not find anything that would it this scenario. I have a friend who has run into several dangerous situations while valuating REO (Real Estate Owned) properties and came face to face with dangerous people. Most of the time the attacker in this situation would be armed with a knife. Some might argue that a knife is not enough to constitute use of deadly force with a gun. However, citing the Sergant Dennis Tueller Drill, a knife attacker within 21 feet poses a significant and imminent danger of your life. You must know this prior to being in this situation to be defensible in court, without prior knoweledge you can be tried for murder. You must have a prior knowledge of what is actually deadly force to establish reasonable belief that your life is in danger. Dennis Tueller specified this. Attached Image (viewed 373 times): |
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Decoligny Regular Member 
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If the individual were forced to defend their life, then they would fall under the 12031 exemption that allows for a loaded firearm if that person reasonably believes that the person or property of himself or herself or of another is in immediate, grave danger and that the carrying of the weapon is necessary for the preservation of that person or property. However, that isn't likely to be when the person carrying the firearm is going to get into trouble. It's when you are going from your vehicle to the house, when a neighbor call the cops for a MWAG and the cops get there as you are going across the lawn back to your car. The cops then come and find the person with a loaded firearm, instant 12031 violation, loaded firearm in a public place in an incorporated city. |
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mjones Regular Member 
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SomeGuyInCali wrote: Does anyone know the legality of LOC on private property that is not yours but you are authorized to be there. The owner of the property is not present to be aware of your LOC status. If you are in a public place in a city or in a prohibited area of a non-city; you need to meet one of the exemptions in PC 12031 in order to carry loaded. I've bolded what look to be the most relevant items to this scenario. CA Penal Code ---------- 12031. (a) (1) A person is guilty of carrying a loaded firearm when he or she carries a loaded firearm on his or her person or in a vehicle while in any public place or on any public street in an incorporated city or in any public place or on any public street in a prohibited area of unincorporated territory. (b) Subdivision (a) shall not apply to any of the following: (1) Peace officers... (2) A retired peace officer... (3) An honorably retired peace officer ... (4) Members of the military forces of this state or of the United States engaged in the performance of their duties. (5) Persons who are using target ranges (6) [CCW Holders] (7) Armored vehicle guards (8) Upon approval of the sheriff of the county in which they reside, honorably retired federal officers ... (c) Subdivision (a) shall not apply to any of the following who have completed a regular course in firearms training approved by the Commission on Peace Officer Standards and Training: (1) Patrol special police officers ... (2) The carrying of weapons by animal control officers ... (3) Harbor police officers ... (d) Subdivision (a) shall not apply to any of the following ... (1) Guards or messengers of common carriers, banks, and other financial institutions ... (2) Guards of contract carriers operating armored vehicles... (3) Private investigators and private patrol operators ... (4) Uniformed security guards ... (5) Uniformed security guards... (6) Uniformed employees of private patrol operators ... ... (h) Nothing in this section shall prevent any person engaged in any lawful business, including a nonprofit organization, or any officer, employee, or agent authorized by that person for lawful purposes connected with that business, from having a loaded firearm within the person's place of business, or any person in lawful possession of private property from having a loaded firearm on that property. (i) Nothing in this section shall prevent any person from carrying a loaded firearm in an area within an incorporated city while engaged in hunting... (j) (1) Nothing in this section is intended to preclude the carrying of any loaded firearm, under circumstances where it would otherwise be lawful, by a person who reasonably believes that the person or property of himself or herself or of another is in immediate, grave danger and that the carrying of the weapon is necessary for the preservation of that person or property. As used in this subdivision, "immediate" means the brief interval before and after the local law enforcement agency, when reasonably possible, has been notified of the danger and before the arrival of its assistance. (k) Nothing in this section is intended to preclude the carrying of a loaded firearm by any person while engaged in the act of making or attempting to make a lawful arrest. (l) Nothing in this section shall prevent any person from having a loaded weapon, if it is otherwise lawful, at his or her place of residence, including any temporary residence or campsite. |
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SomeGuyInCali Regular Member
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mjones wrote:
So does this imply that a subcontractor of a bank would be exempt in this case while on the job for that bank? BTW, thank you for your very insightful post! |
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SomeGuyInCali Regular Member
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Decoligny wrote: If the individual were forced to defend their life, then they would fall under the 12031 exemption that allows for a loaded firearm if that person reasonably believes that the person or property of himself or herself or of another is in immediate, grave danger and that the carrying of the weapon is necessary for the preservation of that person or property. Good point... so in this case you would need to unload before setting foot on the public sidewalk or street. |
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mjones Regular Member
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SomeGuyInCali wrote: mjones wrote: By my reading of the more complete code...only if trained and issued a firearms certificate to go along with a guard card...or if off-duty Law Enforcement. -------- 12031. ... (d) Subdivision (a) shall not apply to any of the following who have been issued a certificate pursuant to Section 12033. The certificate shall not be required of any person who is a peace officer, who has completed all training required by law for the exercise of his or her power as a peace officer, and who is employed while not on duty as a peace officer. (1) Guards or messengers of common carriers, banks, and other financial institutions while actually employed in and about the shipment, transportation, or delivery of any money, treasure, bullion, bonds, or other thing of value within this state. 12033. The Department of Consumer Affairs may issue a certificate to any person referred to in subdivision (d) of Section 12031, upon notification by the school where the course was completed, that the person has successfully completed a course in the carrying and use of firearms and a course of training in the exercise of the powers of arrest which meet the standards prescribed by the department pursuant to Section 7583.5 of the Business and Professions Code. |
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Decoligny Regular Member
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SomeGuyInCali wrote: Decoligny wrote:If the individual were forced to defend their life, then they would fall under the 12031 exemption that allows for a loaded firearm if that person reasonably believes that the person or property of himself or herself or of another is in immediate, grave danger and that the carrying of the weapon is necessary for the preservation of that person or property. I believe it is the Overturf (maybe Overstreet, can't remember) case that ruled that a front yard without a fence is considered a "public place". So you would have to wait until you entered the front door to load, and unload before you exited. |
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cato Regular Member 
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Overturf  BUY THIS BOOK TOO http://www.gunlawpress.com/ Last edited on Thu Jun 25th, 2009 09:48 pm by cato |
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CA_Libertarian State Researcher 
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(h) Nothing in this section shall prevent any person engaged in any lawful business, including a nonprofit organization, or any officer, employee, or agent authorized by that person for lawful purposes connected with that business, from having a loaded firearm within the person's place of business, or any person in lawful possession of private property from having a loaded firearm on that property. To save you some painful reading, the Overturf decision basically stated that you can "have" a loaded firearm on private property, but that doesn't mean you can "carry" that firearm. The court determined that the legislature did not intend to permit the carrying of loaded firearms, only the possession. For example, a gas station clerk could "have" a loaded shotgun on a shelf behind the counter, as it is not carried. |
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SomeGuyInCali Regular Member
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CA_Libertarian wrote: (h) Nothing in this section shall prevent any person engaged in It would seem in this scenario it would be best to obtain a concealed carry permit (near impossible) and not show anything. |
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CA_Libertarian State Researcher
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LUCC would probably be a viable option if one isn't able/willing to get a permission slip. |
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bad_ace Regular Member 
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I wonder if the employees at the local indoor range are aware of this ruling?  All of them open carry loaded. |
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CA_Libertarian State Researcher
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bad_ace wrote: I wonder if the employees at the local indoor range are aware of this ruling? I know they do at all the gun stores in my town. Either the cops don't care, or are just blissfully ignorant. |
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SomeGuyInCali Regular Member
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bad_ace wrote: I wonder if the employees at the local indoor range are aware of this ruling? I know my friend was issued a CCW. But it is only allowed while he is on-the-job at a liquor store. Apparently ABC Is encouraging or requiring a loaded gun on the premises. Last edited on Sun Jun 28th, 2009 04:11 am by SomeGuyInCali |
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cato Regular Member
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bad_ace wrote: I wonder if the employees at the local indoor range are aware of this ruling? If 12031 is not applicable then you don't need an exemption. |
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mjones Regular Member
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cato wrote: bad_ace wrote:I wonder if the employees at the local indoor range are aware of this ruling? aka - an indoor range is not a public place? I know the inside of my home isn't a public place...but with the way Theseus is being treated, I'm not sure the inside of any business is a non-public place anymore  |
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CA_Libertarian State Researcher
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cato wrote: bad_ace wrote:I wonder if the employees at the local indoor range are aware of this ruling? Overturf says 12031 applies to all public places. Behind the counter they may be OK, but that might even be a stretch. I could imagine a DA arguing that it would be public indecency if they were nude behind the counter, so it's in public view, making it a public place. For example, Modesto has an ordinance making it a misdemeanor to possess an open alcoholic beverage in public, except on the premises of places that are licensed to serve alcohol. I've seen the PD arrest people under this ordinance when they were on private property, but in public view. (This led one club to put a 7-foot wooden fence around their outdoor smoking lounge, so the patrons could drink outside. Most clubs just have a bouncer take your drink at the door.) In any case, under Overturf, as soon as they step out onto the public sales floor the gun shop employees would be in violation. |
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SomeGuyInCali Regular Member
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CA_Libertarian wrote:Most clubs just have a bouncer take your drink at the door.) Ha! Until recently I was one of these bouncers at a club in Modesto. On the topic of private property, we had a policy that while you were in the club you were not allowed to have a firearm on your person. This even applied to off-duty police officers. |
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Theseus Founder's Club Member 
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I don't mind not allowing my my sidearm, but allow me a place to store it that isn't my car. . . In Virginia it was my understanding that a business could ask you to remove your sidearm, but that they had to control it and provide for its security. . . I might be mistaken or that might have changed though. |
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CA_Libertarian State Researcher
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SomeGuyInCali wrote: CA_Libertarian wrote:Most clubs just have a bouncer take your drink at the door.) A club I worked at in Turlock had a similar policy. The owner made an exception once, and this off-duty corrections officer ended up getting arrested for brandishing. After that I understood the policy. |
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sudden valley gunner Regular Member 
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SomeGuyInCali wrote: CA_Libertarian wrote:Most clubs just have a bouncer take your drink at the door.) I would apply it to on duty officers also, unless I asked them there. |
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Mike Super Moderator
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mjones wrote: SomeGuyInCali wrote:Does anyone know the legality of LOC on private property that is not yours but you are authorized to be there. The owner of the property is not present to be aware of your LOC status. The bolding of the above section is a bit distracting - remember when applying facts to 12031 you must apply the judicial construction in People v. Knight and its progeny! You may carry loaded guns in all parts of unincorporated areas without violating 12031, including public places, public streets, and vehicles, unless and only unless, the locality (i.e., County, not state law) has prohibited shooting in that place. Obviously it pays to research local law! But if you happen to be in an unincorporated area, unless local law probits shooting thus making the area "prohibited" within the narrow meaning of 12031, not only is your conduct lawful, but it is unlawful and civilly actionable conduct for police to demand that you surrender your gun for inspection to see if it is loaded. |
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Mike Super Moderator
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mjones wrote: SomeGuyInCali wrote:Does anyone know the legality of LOC on private property that is not yours but you are authorized to be there. The owner of the property is not present to be aware of your LOC status. The bolding of the above section is a bit distracting - remember when applying facts to 12031 you must apply the judicial construction in People v. Knight and its progeny! You may carry loaded guns in all parts of unincorporated areas without violating 12031, including public places, public streets, and vehicles, unless and only unless, the locality (i.e., County, not state law) has prohibited shooting in that place. Obviously it pays to research local law! But if you happen to be in an unincorporated area, unless local law probits shooting thus making the area "prohibited" within the narrow meaning of 12031, not only is your conduct lawful, but it is unlawful and civilly actionable conduct for police to demand that you surrender your gun for inspection to see if it is loaded. |
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Mike Super Moderator
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mjones wrote: SomeGuyInCali wrote:Does anyone know the legality of LOC on private property that is not yours but you are authorized to be there. The owner of the property is not present to be aware of your LOC status. The bolding in the above section is distracting - remember that when you apply facts to 12031, to read 12031 as judicially construed in California thru People v. Knight and its progeny. 12031 only makes it generally unlawful to carry loaded guns in public places and steets in incorporated areas; for 12031 to make public places and public streets off limits to loaded open carry the locality (i.e., by County ordinance, not state law) must explicitly prohibit shooting in the portion of the locality. If an unincorporated locality has not prohibited shooting specifically in the area where the street or public place "is," then 12031 does not ban carrying loaded guns in the place whether on your person or in a vehicle. In unincorporated areas then, except in prohibited areas, it is unlawful and civilly actionable for police to detain a gun carrier to demand to inspect the load condition of the gun. Additionally, mistaken belief by police that the unincorporated area is "prohibited" within the meaning of 12031 will not defeat application of the exclusionary rule to evidence of wrongdoing or contraband (e.g., drugs, unregistered or illegal guns, etc.) found by the police as a result of the unlawful effort to carry out a 12031 inspection. Last edited on Fri Jul 3rd, 2009 09:18 pm by Mike |
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Mike Super Moderator
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Theseus wrote: I don't mind not allowing my my sidearm, but allow me a place to store it that isn't my car. . . In Virginia it was my understanding that a business could ask you to remove your sidearm, but that they had to control it and provide for its security. . . I might be mistaken or that might have changed though. Nope, no such rule ever existed. I doubt any state has such a rule. |
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camsoup Regular Member
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Mike wrote: mjones wrote:It is unlawful to discharge a firearm from or across any public freeway, highway, road, etc...wouldn't that make any of those places "prohibited places" whether they were in incorporated or unincorporated territory??SomeGuyInCali wrote:Does anyone know the legality of LOC on private property that is not yours but you are authorized to be there. The owner of the property is not present to be aware of your LOC status. |
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bigtoe416 Regular Member 
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camsoup wrote: It is unlawful to discharge a firearm from or across any public freeway, highway, road, etc...wouldn't that make any of those places "prohibited places" whether they were in incorporated or unincorporated territory?? Yeah, I believe that is the correct interpretation of the law. |
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CA_Libertarian State Researcher
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camsoup wrote: Mike wrote:...It is unlawful to discharge a firearm from or across any public freeway, highway, road, etc...wouldn't that make any of those places "prohibited places" whether they were in incorporated or unincorporated territory?? Mike is referring to People v Knight, where Knight was found with a loaded firearm while parked on the shoulder of a public road. The court found that no violation of 12031 occurred because the prosecution failed to prove the side of that road was within an incorporated area. While this case law does apply, many of us believe it would be ignored by trial courts (much how Thesues' trial judge is ignoring standing case law on 626.9 in People v Tapia). The lower courts commonly ignore standing case law, and it would be up to you to get that reversed. It is also easily fathomable that the case law would be reversed on appeal. So, the bottom line is that, technically, Mike is right, and in a perfect world it would be as simple as that. (Then again, in a perfect world we wouldn't need the case law to begin with.) I don't think anybody should put themselves out there as a test case, unless they have the means to go all the way to the 9th Circuit, or higher. |
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MudCamper Regular Member 
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CA_Libertarian wrote: While this case law does apply, many of us believe it would be ignored by trial courts (much how Thesues' trial judge is ignoring standing case law on 626.9 in People v Tapia). The lower courts commonly ignore standing case law, and it would be up to you to get that reversed. It is also easily fathomable that the case law would be reversed on appeal. Exactly. This is the hard reality at the present time. |
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Mike Super Moderator
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CA_Libertarian wrote: camsoup wrote:Mike wrote:...It is unlawful to discharge a firearm from or across any public freeway, highway, road, etc...wouldn't that make any of those places "prohibited places" whether they were in incorporated or unincorporated territory?? Again, I disagree with this analysis which leads readers down several very incorrect paths. Knight has been followed and reinforced multiple times by the ca. appeals court in other cases as I have posted here before. Regardless, prior CA appeals court panels bind future panels; reversing Knight could only occur by way of an en banc appeals ct. or the Ca. S. Ct., somthing that is not going to happen as Knight is settled law that merely affirms the law as it has been since the 1968 AG opinion on the matter. Also, the 9th Circuit does not review decisions of state courts in such matters - why does this conflation keep happenning by California people? This does not mean everyone should OC loaded in every unincorporated area at all times - obviously it can be risky to do so unless you are sure of where Counties have banned shooting by specific ordinance - but what folks can do is bring civil actions for damages against any non-consensual police stop to check the load status of guns in unincorporated areas if shooting was not in fact banned there by the County - this is the achilles heel of over-exuberant police departments. Now as to your comment that Theseus's trial court is not folowing an alleged holding in Tapia that a private business held open to the public is school zone exempt private property, this assertion is plainly wrong, and there was not even dicta to this end. As the Tapia panel stated:
Last edited on Thu Jul 9th, 2009 06:15 pm by Mike |
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bigtoe416 Regular Member
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Mike wrote: This does not mean everyone should OC loaded in every incoprorated area at all times Surely you meant to say unincorporated area. An interesting way to get a police officer to perform a 12031(e) check while one is on unincorporated territory would be to be in an unincorporated island of some sort. Here is a map of unincorporated portions of San Mateo county: http://www.co.sanmateo.ca.us/planning/pdf/smcuninc.pdf As you can see there are some pretty sizable pockets of unincorporated land. The one I find the most interesting is San Francisco Airport, although I'm still not convinced that it is really unincorporated. Here are some unincorporated islands in Santa Clara county: http://www.santaclara.lafco.ca.gov/pdf-files/Urban_Pockets_2005.pdf. You'll notice that some of these pockets are really small. It would be easy to be in one of these islands and have a police officer perform the e check, and then having standing to bring the case to court. |
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Theseus Founder's Club Member
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That the Legislature did not necessarily intend section 626.9 to be governed by the "public place" analysis is also suggested by the exception for places of business. It is readily apparent that a great many places of business are open to common use and enjoyment by members of the public. Nonetheless, section 626.9's exception expressly encompasses places of business. The original court in Tapia ruled the sidewalk was a public place and therefore it was not private property as it applies to 626.9 and that is exactly what the appellate court struck down. The fact that they did not overturn the conviction is another matter, but they expressely defeated the public place and open to the public thought process. |
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stuckinchico Regular Member 
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I have abuddy that lives right across from Chico State Ive almost got him convinced to have a LOADED OPEN carry bbq on his front lawn GOd that will be so much fun!!! |
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Mike Super Moderator
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Theseus wrote: The original court in Tapia ruled the sidewalk was a public place and therefore it was not private property as it applies to 626.9 and that is exactly what the appellate court struck down. The fact that they did not overturn the conviction is another matter, but they expressely defeated the public place and open to the public thought process. The only court that counts is the appeals court which expressly decided not to decide the issue of what "private property" means besides the fact that it was not a private sidewalk. Did you read what I posted? That's what they wrote. |
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bigtoe416 Regular Member
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stuckinchico wrote: I have abuddy that lives right across from Chico State Ive almost got him convinced to have a LOADED OPEN carry bbq on his front lawn GOd that will be so much fun!!! You have read overturf, right? |
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Sons of Liberty Regular Member 
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Mike wrote: Theseus wrote:The original court in Tapia ruled the sidewalk was a public place and therefore it was not private property as it applies to 626.9 and that is exactly what the appellate court struck down. The fact that they did not overturn the conviction is another matter, but they expressely defeated the public place and open to the public thought process. I think I see what Theseus is saying, but let me first refresh our memories on what 626.9 states, "(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: (1) Within a place of residence or place of business or on private property, if the place of residence, place of business, or private property is not part of the school grounds and the possession of the firearm is otherwise lawful. ..." I think what Theseus is saying is that the appellate court in People v. Tapia said that the term "private property" is not equivalent to anything that is "not a public place" or anything that is "not a public area". So to allow the jury to establish what "private property" was by determining whether it was a "public area" or "public place" is not correct, since you can have public areas on "private property". The code specifically says "private property". If you are in a public area on private property, "Subdivision (b) does not apply". The appellate court reasoned, "The difficulty with the trial court’s application of these principles to the instant case is that, unlike the statutes at issue in the aforementioned authorities, section 626.9 does not use the terms “public place” or “public area.” To the contrary, section 626.9 creates an exception for firearm possession on “private property.”" Is that right Theseus? |
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CA_Libertarian State Researcher
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Exactly. The Tapia decision is useful, even though the court didn't go into great elaboration. The CA App Court gave us some language (as noted by Thesues) that points to the fact the legislature obviously didn't intend 626.9 to apply to all places open to the public. I think Mike makes some good points. And he's definitely better at the legal stuff than I am. I think he's right that when you appeal your conviction to the CA App Ct, you will have it overturned. However, I'd be willing to make book on a trail court conviction. That means time and money. IMO, don't carry loaded on any public road unless you have ample extra time and money lying about. |
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Theseus Founder's Club Member
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Sons of Liberty wrote: Mike wrote:Theseus wrote:The original court in Tapia ruled the sidewalk was a public place and therefore it was not private property as it applies to 626.9 and that is exactly what the appellate court struck down. The fact that they did not overturn the conviction is another matter, but they expressely defeated the public place and open to the public thought process. That is correct. Private property is private property for the purposes of 626.9. Open to the public or public place has no place in reading of 626.9 and Tapia supports that belief. |
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Mike Super Moderator
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Theseus wrote: That is correct. Private property is private property for the purposes of 626.9. Open to the public or public place has no place in reading of 626.9 and Tapia supports that belief. Except no appeals court has ever ratified what you state as the rule of law; in fact though the Tapia panel appeared sympathetic to your view of the meaning of 626.9's text - as am I - tapia explicilty said essentially - "but don't quote us, we are not going there nor do we need to." In the end though, in your case, unless the prosecutor can prove that you knew or had reason to know you were in a school zone, you cannot be convicted. Maybe you admitted you knew you were in a school zone or live in that area and thus were on inquiry notice of this fact? Don't answer if you wuold incriminate yourself here, but seems to me the biggest bar to your prosecution would by this element of the offense before we even get to the exception for "private property." |
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Theseus Founder's Club Member
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Mike wrote: Theseus wrote:That is correct. Private property is private property for the purposes of 626.9. Open to the public or public place has no place in reading of 626.9 and Tapia supports that belief. I won't get into that argument because the DA has put me on notice that they are watching this board and writing down everything I say. What I point out, I think, is not merely some novel theory. The following were the instructions given to the jury: If you find, beyond a reasonable doubt, that the sid[e]walk in front of 1257 East 40th Place, Los Angeles, California, is a public place, then that sidewalk is not private property within the meaning of Penal Code Section 626.9(b). [¶] The term 'public place' means any place which is open to common or general use, participation and enjoyment by members of the public. I am no lawyer, but the fact that the appellate case struck doen the logic then makes it more than mere dicta. Last edited on Fri Jul 10th, 2009 10:26 pm by Theseus |
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Mike Super Moderator
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Theseus wrote: What I point out, I think, is not merely some novel theory. Hard to follow you are talking about - what court gave these instructions to what jury? If the answer is the tapia trial court, then it cannot be said that the Tapia appeals court held otherwise - that panel explicitly said it would not decide the issue of whether private property held open to the public is within the ambit of the school zone ban. |
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Theseus Founder's Club Member
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Mike wrote: Hard to follow you are talking about - what court gave these instructions to what jury? Tapia Appellate: "We agree that a portion of the trial court's instruction was erroneous. However, we conclude that, as a matter of law, a sidewalk on an easement of way which has been granted to a public entity is not private property within the meaning of section 626.9." You are doing the same thing the court did and focused on the fact that they also said it wasn't private property, but not to the reason they said it was. Tapia trial claimed it was not private property because it was a public place and Tapia appellate said that it was not private property because it was subject to an easement to a public entity. This is a very vital distinction that should not be ignored. They may not have defined "private property", but they DID determine that 626.9 was not meant by the legislature to be subject to interpretation by the "public places" or "open to the public" by virtue of throwing away the trial courts words. |
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stuckinchico Regular Member
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uhhh potato potatoe Last edited on Sat Jul 11th, 2009 07:59 am by stuckinchico |
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Theseus Founder's Club Member
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stuckinchico wrote: UMMMM if im not mistaking doesn't the law state that you must seasonably know or should have known that it was a school zone??? If the LEOs didnt know that it was a school zone, how can they expect you to know that>??? LEOs are suppose to know their area they should know what the school zones are . BTW if a school was closed to budget reduction, does that Kill zone disappear?? The officers testified they did not know 626.9 existed and thus did not "enforce" it. Last edited on Sat Jul 11th, 2009 07:59 am by Theseus |
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stuckinchico Regular Member
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hey i have a question...... I just found out to a buddy in a local PD station... they have my booking photo up on their alert board with my name and an officer safety alert stating weapons.. Is this legal ??? I am afraid that they are going to use that posting as probable cause to search me for a weapon when they dont see one Im officially peeved at this department, they have so far over stepped their authority Last edited on Sat Jul 11th, 2009 08:04 am by stuckinchico |
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ConditionThree Activist Member 
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stuckinchico wrote: hey i have a question...... I just found out to a buddy in a local PD station... they have my booking photo up on their alert board with my name and an officer safety alert stating weapons.. Is this legal ??? I am afraid that they are going to use that posting as probable cause to search me for a weapon when they dont see one Im officially peeved at this department, they have so far over stepped their authority This is off-topic. Doesnt have anything to do with the original topic which was about LOC on private property not belonging to the armed individual. Can you make it a habit not to high jack a thread with commentary on your current situation? It would surely help make it easier to follow a topic without having it sift through misplaced posts. |
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Theseus Founder's Club Member
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ConditionThree wrote: stuckinchico wrote:hey i have a question...... I just found out to a buddy in a local PD station... they have my booking photo up on their alert board with my name and an officer safety alert stating weapons.. Is this legal ??? I am afraid that they are going to use that posting as probable cause to search me for a weapon when they dont see one Im officially peeved at this department, they have so far over stepped their authority Sorry. You are right. . . I have a thread about this somewhere. . . |
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Mike Super Moderator
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Theseus wrote: They may not have defined "private property", but they DID determine that 626.9 was not meant by the legislature to be subject to interpretation by the "public places" or "open to the public" by virtue of throwing away the trial courts words. No, the appellate court explicitly said it would not determine the issue of whether 629.9 excludes "private property" as an exception if it is also a public place or held open to the public. You are reading too much into the labling of the trial court's jury instruction as partly erroneous - it was erronious because it went farther than it needed to - it only had to reach the easment issue. |
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Mike Super Moderator
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Theseus wrote: stuckinchico wrote:UMMMM if im not mistaking doesn't the law state that you must seasonably know or should have known that it was a school zone??? If the LEOs didnt know that it was a school zone, how can they expect you to know that>??? LEOs are suppose to know their area they should know what the school zones are . BTW if a school was closed to budget reduction, does that Kill zone disappear?? Right - knowledge of the law is not required to be convicted - under the statute the state must merely prove that the Defendant knew or reasonably should have known that he was in a school zone. |
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Theseus Founder's Club Member
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Mike wrote:No, the appellate court explicitly said it would not determine the issue of whether 629.9 excludes "private property" as an exception if it is also a public place or held open to the public. Well, we can disagree, fortunately you and the judge are the only ones that think other than me. And with this line of thinking then arguably the entire Tapia case is mere dicta because he (Tapia) was not exempt because he was also loaded, meaning they didn't even need to decide whether or not he was exempt on private property. Last edited on Sun Jul 12th, 2009 02:05 am by Theseus |
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Mike Super Moderator
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Theseus wrote: a school zone. Right about what exactly - very hard to follow your posts. |
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Sons of Liberty Regular Member
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I think that what Theseus is saying is that the appellate court's analysis in People v. Tapia should be used by trial courts that are trying to determine what is "private property", even though the appellate court did not establish all of the different forms "private property" could take. This way the trial courts will not make the same mistake the trial court did in People v. Tapia. The appellate court concluded that: 1) The "public place" or "public area" analysis should not be used to define the terms "place of residence", "place of business", and "private property" used in 626.9. 2) A trial court attempting to do this is in error. Therefore, if the trial court in Theseus' case is using the "public place analysis" to define whether Theseus was on "a place of residence", "a place of business" or on "private property", then that trial court is in error and has not followed the analysis of the appellate court in People v. Tapia, which is not right. In this respect, People v. Tapia has significance in Theseus' case. I think that's what Theseus is saying. |
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Theseus Founder's Club Member
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Sons of Liberty wrote: I think that what Theseus is saying is that the appellate court's analysis in People v. Tapia should be used by trial courts that are trying to determine what is "private property", even though the appellate court did not establish all of the different forms "private property" could take. This way the trial courts will not make the same mistake the trial court did in People v. Tapia. The appellate court concluded that: That is what I said. . . just more broken up. Didn't think it would be necessary to spell it all out, guess I was wrong. |
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Mike Super Moderator
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Sons of Liberty wrote: I think that what Theseus is saying is that the appellate court's analysis in People v. Tapia should be used by trial courts that are trying to determine what is "private property", even though the appellate court did not establish all of the different forms "private property" could take. I agree - the Tapia panel's discussion of what is "private property" within the meaning of the school zone gun ban militates against future trial courts finding that a mere buisness held open to the public is not "private property." But as deciding that issue was not required, the Tapia panel did not bind future trial courts on that issue and explicitly said so. But the real question seems to me is what evidence the government has to show you knew or should have known that you werre in a school zone. |
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Theseus Founder's Club Member
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Mike wrote: Sons of Liberty wrote:I think that what Theseus is saying is that the appellate court's analysis in People v. Tapia should be used by trial courts that are trying to determine what is "private property", even though the appellate court did not establish all of the different forms "private property" could take. I still disagree. They may have decided not to define "private property" but they did decide that it was not places "open to the public". If that decision is not binding on the courts due to the fact that it didn't need to be decided, then arguably the entire case of Tapia is mere dicta and therefore didn't need to be decided either. But more importantly to use Tapia as a justification to do what they did, they are going against the entire Tapia case. My private property was not subject to an easement to a public entity. What my trial court did was the same thing the Tapias trial court did and that was simply bastardise the law in an attempt to make me a criminal where I might otherwise not be. And again, to the knowledge part, I am not going to discuss it. |
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Mike Super Moderator
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Theseus wrote: I still disagree. They may have decided not to define "private property" but they did decide that it was not places "open to the public". No, they "decided" not to decide that issue because ". . . resolution of the instant matter does not require that we determine precisely what “private property” encompasses for purposes of section 626.9. Whatever else the term means, we believe it cannot reasonably be applied to a sidewalk on an easement of way which has been granted to a public entity. The obvious purpose of the statute is to protect children at and near schools. This purpose would be frustrated if the very public sidewalks upon which schoolchildren walk to school were considered outside the scope of the law. We must interpret the law to give it a “ ‘ “reasonable and commonsense interpretation consistent with the apparent purpose and intention of the lawmakers, practical rather than technical in nature, which upon application will result in wise policy rather than mischief or absurdity.” Tapia. -- Per the syllabus: "Aldrich, J., held that: (1) sidewalk on an easement of way granted to public entity was not “private property” for purposes of private property exception under statute; (2) statute was not unconstitutionally vague; and (3) erroneous instruction was harmless beyond a reasonable doubt." -- |
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Sons of Liberty Regular Member
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I'm getting a little confused. Theseus, are you saying the judge in your case is not allowing your defense to use the "place of business"/"private property" exclusion? If he is not, is it because the judge already "ruled" that any place of business or private property that is "open to the public" does not meet the definition of "place of business" and "private property" as used in 626.9? Mike, are you saying that the trial court is not bound by any of the analysis of the appellate court in People v. Tapia other than their decision about a public sidewalk on an easement?  Last edited on Mon Jul 13th, 2009 03:00 am by Sons of Liberty |
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Mike Super Moderator
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Sons of Liberty wrote: Mike, are you saying that the trial court is not bound by any of the analysis of the appellate court in People v. Tapia other than their decision about a public sidewalk on an easement? Trial courts are bound only by the holdings of appellate courts, not their dicta nor reasoning not necessary to support the holdings. The Tapia panel went out of their way to emphasize that they were NOT "determin[ing] precisely what 'private property' encompasses for purposes of section 626.9." Many California people continue to be confused on the subject of appellate holdings and how they bind trial courts. Some posters continue to argue that trial courts will blow off holdings of appellate courts, e.g., People v. Knight, but then never come up with an example. Other California posters "find" "holdings" in the dusty corners of an opinion, e.g. Tapia, and then say "Aha! trial court did not follow binding authority!" Neither side is correct and it does not serve our community well to keep pushing these lines of incorrect argument. |
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Theseus Founder's Club Member
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Sons of Liberty wrote: I'm getting a little confused. The judge in my case did find that private property open to the public is not private property as it applies to 626.9. And Mike may be smart, but he is plain wrong in this case. We have and do use the "reasoning" of appeals cases here in California, just as they are doing using the Heller decision for more than merely "right to keep in the home". It is my understanding that how a court reaches its decision is as important as the decision itself, the same as the reason the legislatures intent in creating and passing a bill is important when determining the meaning of a statute in a criminal case. Without understanding why or how they may have come to a decision you can't rely on the answer. |
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Sons of Liberty Regular Member
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Theseus, sounds like what they are doing to you is unjust! What a bunch of criminals! Hang in there! |
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CA_Libertarian State Researcher
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Mike wrote: ...The Tapia panel went out of their way to emphasize that they were NOT "determin[ing] precisely what 'private property' encompasses for purposes of section 626.9." The court stated that they would not address the problem of determining precisely what "private property" encompasses. I don't see how that can be interpreted as "ignore the words you are about to read." It appears to me to simply be a disclaimer that they will address the issue narrowly, rather than broadly. While they disclaim that they wouldn't be whittling the topic down to perfection, they did offer their opinion on the use of specific language (private property versus public place): "...section 626.9 does not use the terms "public place" or "public area." To the contrary, section 626.9 creates an exception for firearm possession on "private property." "When the Legislature uses materially different language in statutory provisions addressing the same subject or related subjects, the normal inference is that the Legislature intended a difference in meaning....‘It is a well recognized principle of statutory construction that when the Legislature has carefully employed a term in one place and has excluded it in another, it should not be implied where excluded.’...That the Legislature did not necessarily intend section 626.9 to be governed by the "public place" analysis is also suggested by the exception for places of business. It is readily apparent that a great many places of business are open to common use and enjoyment by members of the public. Nonetheless, section 626.9’s exception expressly encompasses places of business." The Tapia court was specifically adressing the trial court's reasoning, and while they upheld the conviction, the court did make it clear that the trial court's reasoning doesn't hold water. If the Tapia court did not want to broach the issue as you claim, they would have had no reason to include this analysis. They would have only stated how the law should have been applied. Fortunately for us, they also decided to include the above statement of how the law should not be applied. ETA: I've never heard before that trial courts are bound only by holdings, and not by the reasoning behind them. It's completely illogical to do so, as it would be impossible to apply the holdings to similar cases without being able to delve into the reasoning. Further, I have trouble believing the trial courts are not bound by the "reasoning" behind the holdings, as I have often encountered decisions where a trial court's decision was overturned based on the extended analysis in higher court's decision. Last edited on Mon Jul 13th, 2009 08:26 am by CA_Libertarian |
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Mike Super Moderator
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CA_Libertarian wrote: I have trouble believing the trial courts are not bound by the "reasoning" behind the holdings, as I have often encountered decisions where a trial court's decision was overturned based on the extended analysis in higher court's decision. The mistake you are making is equating "being overturned" with "failing to follow a holding." Being overturned is what makes holdings! The law usually proceeds in small and hesitating steps. The idea behind the law of holdings is to make it hard for courts to make up rules of law on the fly about issues not abslutely needing resolution - holdings are only those rules of law required to be made to reach judgment in a case. Now sometimes dicta has a way of later becoming a holding or cited as a holding when it is really not, e.g., Wickard v. Filburn (home grown and consumed wheat subject to federal commerce clause power when facts of the case were about a commercial dairy farm growing wheat for cows making milk to be put into the stream of commerce) - this was pointed out in briefs to S. Ct. in Gonzales v. Raich and remains a sore point for many - Wickard never should have stood for the rule it is cited for . . .) - but we are discussing law here, not geology or some other physical science whose first order principals are known and precise. Based upon the plaint text of the 629.9, and the "persuasive" discussion of the Tapia panel, I would expect that if Theseus is convicted in part on a bench ruling that a private business is not private property under 629.9's exception, an appeals court will overturn on that point of law and thus create a new holding as to what 629.9 really means. So if we were Machiavellians then, we would all be rooting for Theseus to be convicted so we can get that private property rule of law estabalished, presumably in our favor! Think of criminal defendants and civil litigants as specimens in a test tube and the judges as scientists - only if the scientist is really sure he has to reach a conclusion to explain what happenned will he reach that conclusion and put his name to the report or publication. Same with judges - they will avoid deciding issues, especially controversial ones if they can - so in Theseus' case, the judge does not want to decide 629.9 prematurely - what if the jury finds that the govt. did not prove that he knew or should have known he was in a school zone? Then the case is over and he never has to rule on that point; if he is convicted, then the private proeprty issue becomes a pue rule fo law issue for the appeal - that's what appeals courts do, give defference to the trier of fact but review matters of law de novo. Trial courts get to punt so to speak and may do so more frequently on controvesial issues - do you think the typical california tiral judge who wants to be an appeals judge later in life wants to be known in legal and social circles as the judge who thinks its OK for people to carry guns in laundromats in school zones where they could hurt the children?? Come on. But beware, the next appeals court panel will likley have different judges than the Tapia panel, and this new panel is only bound by the holdings of prior panels - so if the issue was Theseus standing on a public sidewalk, then the panel is required to follow prior panels' holdings and Theseus doe not get to claim that he is on private property; but if the issue is whether a laundrymat is private property under 629.9, they get to make new law! Tune in at the appeals court hearing! |
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CA_Libertarian State Researcher
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Thanks for the explanation, Mike. I think I get it now. As much as I would like to see 626.9 become settled law, I hope Thesues doesn't have to go through the wringer like that. Somebody will have to some day, but hopefully that will be in a better time where the open carry movement enjoys better support. Especially the support of the people who claim to be for our right to self defense. |
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M198 Regular Member
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Loaded Open/Concealed is a misdemeanor which would require a witness to swear out a complaint. Who exactly would be the witness to say that you had it loaded? Also, who in their right mind would say that a knife isn't a deadly weapon? it would take about 5 seconds to pull up cases in any jurisdiction of people being charged with felony assault with a deadly weapon when they use a knife to attack someone. Meth head with a knife = shoot to kill. Do you think a cop would even blink before they shot someone with a knife? Last edited on Thu Jul 16th, 2009 06:52 pm by M198 |
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