Los Angeles DA Issues Notice - OC IS LEGAL!!!!

[Gordie]

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exgabrit wrote:

I know this may be a really stupid question.
I live in Georgia (originally from the UK), I have a license to carry (concealed / open).
Now, we all carry because we want to defend ourselves right ? So it seems kinda dumb for the state of California to allow people to carry a gun, but not have it loaded?
you have a criminal with a concealed loaded gun, he / she see's some one carrying a gun and thus knows that the weapon is un-loaded and in a confrontation the legal carrier will need a minimum of two / three seconds to draw the sidearm, grab the mag, load the mag in to the pistol, rack the slide, oh and shoot. oh, you're dead too.

did the Californian law makers do too many happy drugs in the 60's ??

YES!:celebrate:celebrate:celebrate:celebrate:celebrate

 

[exgabrit]

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well thats ok then ! just so there is a reason to the madness.

Gordie wrote:

exgabrit wrote:

I know this may be a really stupid question.
I live in Georgia (originally from the UK), I have a license to carry (concealed / open).
Now, we all carry because we want to defend ourselves right ? So it seems kinda dumb for the state of California to allow people to carry a gun, but not have it loaded?
you have a criminal with a concealed loaded gun, he / she see's some one carrying a gun and thus knows that the weapon is un-loaded and in a confrontation the legal carrier will need a minimum of two / three seconds to draw the sidearm, grab the mag, load the mag in to the pistol, rack the slide, oh and shoot. oh, you're dead too.

did the Californian law makers do too many happy drugs in the 60's ??

YES!:celebrate:celebrate:celebrate:celebrate:celebrate

 

[ChickenFarmer]

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So let me see if I understand...

It seems to me the appeals court didn't argue whether Knight was or was not in a prohibited area or whether the street was a prohibited area or not, simply that the officer didn't have probable cause because he himself didn't know if it was a prohibited area and simply assumed it was that the arrest and subsequent search went out the window.

This basically because the neither the appellate court nor the prosecution thought to mention or didn't know about 374c making the area in fact a prohibited area?

 

[Decoligny]

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ChickenFarmer wrote:

So let me see if I understand...

It seems to me the appeals court didn't argue whether Knight was or was not in a prohibited area or whether the street was a prohibited area or not, simply that the officer didn't have probable cause because he himself didn't know if it was a prohibited area and simply assumed it was that the arrest and subsequent search went out the window.

This basically because the neither the appellate court nor the prosecution thought to mention or didn't know about 374c making the area in fact a prohibited area?

Pretty close.

The cop and the prosecutor both thought that is was illegal to have a loaded gun in "any public place" and tried to read 12031 as if a period came after that.

Incorporated/Unicorporated and prohibited didn't even come into play in the original mindset of the prosecution.

 

[Mike]

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Decoligny wrote:

ChickenFarmer wrote:

So let me see if I understand...

It seems to me the appeals court didn't argue whether Knight was or was not in a prohibited area or whether the street was a prohibited area or not, simply that the officer didn't have probable cause because he himself didn't know if it was a prohibited area and simply assumed it was that the arrest and subsequent search went out the window.

This basically because the neither the appellate court nor the prosecution thought to mention or didn't know about 374c making the area in fact a prohibited area?

Pretty close.

The cop and the prosecutor both thought that is was illegal to have a loaded gun in "any public place" and tried to read 12031 as if a period came after that.

Incorporated/Unicorporated and prohibited didn't even come into play in the original mindset of the prosecution.

So you read all the briefs and listened to the oral argument?

 

[Decoligny]

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Mike wrote:

Decoligny wrote:

ChickenFarmer wrote:

So let me see if I understand...

It seems to me the appeals court didn't argue whether Knight was or was not in a prohibited area or whether the street was a prohibited area or not, simply that the officer didn't have probable cause because he himself didn't know if it was a prohibited area and simply assumed it was that the arrest and subsequent search went out the window.

This basically because the neither the appellate court nor the prosecution thought to mention or didn't know about 374c making the area in fact a prohibited area?

Pretty close.

The cop and the prosecutor both thought that is was illegal to have a loaded gun in "any public place" and tried to read 12031 as if a period came after that.

Incorporated/Unicorporated and prohibited didn't even come into play in the original mindset of the prosecution.

So you read all the briefs and listened to the oral argument?

I have read everything I could find.

I have asked before, If I am wrong, PLEASE show me where I am wrong. I can only work with my own understanding unless I get some actual input. Telling me I am wrong won't change my opinion. Showing me I am wrong will.

 

[Mike]

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ChickenFarmer wrote:

This basically because the neither the appellate court nor the prosecution thought to mention or didn't know about 374c making the area in fact a prohibited area?

What the parties argued or did not argue does not weaken the holding of the Knight panel. Panel holdings on state law questions are binding on trial courts and future panels unless reversed by an en banc panel or the state supreme court. Panels are assumed to have full knowledge of all statutes and higher court holdings when they issue an opinion.

The facts, holding, and resultin Knight are great for us - men with loaded guns in car charged with violating 12031 and other crimes - all charges dismissed; the 12031 charge because it was not a violation of 12031 to have loaded guns in the car there, and the other crimes because the evidence was suppressed as a result of an unlawful police action to seize and search the people and their vehicle in an area where the police had no idea whether or not it was incorporated and hence no reasonable suspicion of any crime being afoot.

The key holding in Knight is that open carry of loaded guns inside vehicles on public roads in unincorporated areas where the locality has not prohibited shooting is not unlawful and police may not stop you to check to see if your guns are loaded. The Court stated that"[t]his construction is consistent with an opinion of the Attorney General in 1968, shortly after the enactment of section 12031."

I realize it may be hard for many people to swallow a judicial construction of a statute which is at odds with what they see as the correct construction from the text. But courts are pretty much free to say what the law is, and often do depart from what the text appears to mean for a variety of reasons - in this case, California gun laws are so numerous and complicated that the court decided to narrowly construe the ambit of 12031, and I think correctly so - the explanation they give is there if anyone wants to read it.

Often these judicial constructions go against us, as did the recent Calif. appeals court holding that the 12031 requirement to carry unloaded in incorporated areas is not unconstitutional even if the Second Amendment is incorporated.

So lets take the good (Knight) with the bad and drive on!

 

[ChickenFarmer]

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Interesting that I didn't see it that way, but that is because they didn't SAY that he was not in a prohibited area, only that the prosecutor didn't prove he was and thus didn't reinforce the probable cause belief of the officer.

So what you are saying is that the ruling doesn't have to speak on the issue but that the mere fact of them overturning the judgment against him even though it was due to a technicality in the law and not the law, changes the meaning of the law?

Mike wrote:

ChickenFarmer wrote:

This basically because the neither the appellate court nor the prosecution thought to mention or didn't know about 374c making the area in fact a prohibited area?

What the parties argued or did not argue does not weaken the holding of the Knight panel. Panel holdings on state law questions are binding on trial courts and future panels unless reversed by an en banc panel or the state supreme court. Panels are assumed to have full knowledge of all statutes and higher court holdings when they issue an opinion.

The facts, holding, and resultin Knight are great for us - men with loaded guns in car charged with violating 12031 and other crimes - all charges dismissed; the 12031 charge because it was not a violation of 12031 to have loaded guns in the car there, and the other crimes because the evidence was suppressed as a result of an unlawful police action to seize and search the people and their vehicle in an area where the police had no idea whether or not it was incorporated and hence no reasonable suspicion of any crime being afoot.

The key holding in Knight is that open carry of loaded guns inside vehicles on public roads in unincorporated areas where the locality has not prohibited shooting is not unlawful and police may not stop you to check to see if your guns are loaded. The Court stated that"[t]his construction is consistent with an opinion of the Attorney General in 1968, shortly after the enactment of section 12031."

I realize it may be hard for many people to swallow a judicial construction of a statute which is at odds with what they see as the correct construction from the text. But courts are pretty much free to say what the law is, and often do depart from what the text appears to mean for a variety of reasons - in this case, California gun laws are so numerous and complicated that the court decided to narrowly construe the ambit of 12031, and I think correctly so - the explanation they give is there if anyone wants to read it.

Often these judicial constructions go against us, as did the recent Calif. appeals court holding that the 12031 requirement to carry unloaded in incorporated areas is not unconstitutional even if the Second Amendment is incorporated.

So lets take the good (Knight) with the bad and drive on!

 

[Mike]

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ChickenFarmer wrote:

Interesting that I didn't see it that way, but that is because they didn't SAY that he was not in a prohibited area, only that the prosecutor didn't prove he was and thus didn't reinforce the probable cause belief of the officer.

So what you are saying is that the ruling doesn't have to speak on the issue but that the mere fact of them overturning the judgment against him even though it was due to a technicality in the law and not the law, changes the meaning of the law?

Read Knight - the appeals court did speak clearly on the issue and construed a statute in that opinion. That construction is now the law of California. There were no technicalities here.

 

[Decoligny]

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Mike wrote:

ChickenFarmer wrote:

Interesting that I didn't see it that way, but that is because they didn't SAY that he was not in a prohibited area, only that the prosecutor didn't prove he was and thus didn't reinforce the probable cause belief of the officer.

So what you are saying is that the ruling doesn't have to speak on the issue but that the mere fact of them overturning the judgment against him even though it was due to a technicality in the law and not the law, changes the meaning of the law?

Read Knight - the appeals court did speak clearly on the issue and construed a statute in that opinion. That construction is now the law of California. There were no technicalities here.

You are right, there were no technicalities, there was simply an inept prosecution.

The appellate court did indeed construe a statute, and here it is:


[align=left]Applying this principle to give meaning to each word and phrase in the statute, section 12031, subdivision (a)(1), prohibits carrying a loaded firearm on one’s person or in a vehicle: [/align]
[align=left](1) while in any public place in an incorporated city;[/align]
[align=left](2) while on any public street in an incorporated city;[/align]
[align=left](3) while in any public place in a prohibited area of unincorporated territory; or [/align]
[align=left](4) while on any public street in a prohibited area of unincorporated territory.3[/align]
[align=left]3 This construction is consistent with an opinion of the Attorney General in 1968, shortly after the enactment of section 12031. The Attorney General concluded “section 12031 does not prohibit the carrying of a rifle or shotgun with unexpended shells or cartridges in the magazine on a public road in an unincorporated area where there are no local ordinances or other laws or regulations prohibiting the discharge of firearms.” (51 Ops.Cal.Atty.Gen. 197 (1968).)[/align]
[align=left]Given the appellate courts statutory construction above, and given that California Penal Code 374c is indeed in the category of "other laws or regulations prohibiting the discharge of firearms" how exactly does this not cleary show that on every single public road or highway in the state of California it is illegal to discharge a firearm, and thus,any public road or highway in unincorporated territory by definition is a prohibited area of unincorporated territory?[/align]

 

[ChickenFarmer]

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Ok, so lets explore that then. . . I found the same information Decoligny...

I read it to simply say that it isn't a violation of 12031 unless (4) while on any public street in a prohibited area of incorporated territory.

So the area would have to be a public street AND prohibited area. 374c would make all public roads, regardless of incorporated or unincorporated prohibited areas according to State laws.

I don't see their decision negates the validity of 374c as Decoligny states.

What I see is that the prosecutor didn't meet his burden because he was confused about the wording in 12031 and didn't think he needed to prove that Knight was in violation of 12031 or defend the officers probable cause and that his lack of or the appellet courts lack of negates 374c.

But I think I understand Mike is saying that the court is expected and understood to know of the presence of 374c and made the interpretation of 12031 with the intention to negate the validity of 374c.

 

[Mike]

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ChickenFarmer wrote:

Ok, so lets explore that then. . . I found the same information Decoligny...

I read it to simply say that it isn't a violation of 12031 unless (4) while on any public street in a prohibited area of incorporated territory.

So the area would have to be a public street AND prohibited area. 374c would make all public roads, regardless of incorporated or unincorporated prohibited areas according to State laws.

I don't see their decision negates the validity of 374c as Decoligny states.

What I see is that the prosecutor didn't meet his burden because he was confused about the wording in 12031 and didn't think he needed to prove that Knight was in violation of 12031 or defend the officers probable cause.

The 12031 charge was reviewed de novo and the statute was construed under the facts to not have been violated - read the opinion as a whole - the appeals court was aware the men were in vehicles on a public road; the rest of the opinion regards the suppression for the evidence of other crimes. 12031 was read not to be impacted by 274c because doing so would do damage to the legisaltive intent of 12031.

Again, panel courts are presumed to have knowledge of all statutes and holdings, and the holding they create sticks even of wrong (i.e., could be overruled by an en banc panel or the S. Ct.

 

[ChickenFarmer]

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I thought I saw your argument...

The court was ruling that 12031 was the end all be all of where the person could be guilty of 12031. . . They intended to say that 374c was invalid and didn't effect 12031?


Mike wrote:

The 12031 charge was reviewed de novo and the statute was construed under the facts to not have been violated - read the opinion as a whole - the appeals court was aware the men were in vehicles on a public road; the rest of the opinion regards the suppression for the evidence of other crimes. 12031 was read not to be impacted by 274c because doing so would do damage to the legisaltive intent of 12031.

Again, panel courts are presumed to have knowledge of all statutes and holdings, and the holding they create sticks even of wrong (i.e., could be overruled by an en banc panel or the S. Ct.

 

[Decoligny]

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Mike wrote:

ChickenFarmer wrote:

Ok, so lets explore that then. . . I found the same information Decoligny...

I read it to simply say that it isn't a violation of 12031 unless (4) while on any public street in a prohibited area of incorporated territory.

So the area would have to be a public street AND prohibited area. 374c would make all public roads, regardless of incorporated or unincorporated prohibited areas according to State laws.

I don't see their decision negates the validity of 374c as Decoligny states.

What I see is that the prosecutor didn't meet his burden because he was confused about the wording in 12031 and didn't think he needed to prove that Knight was in violation of 12031 or defend the officers probable cause.

The 12031 charge was reviewed de novo and the statute was construed under the facts to not have been violated - read the opinion as a whole - the appeals court was aware the men were in vehicles on a public road; the rest of the opinion regards the suppression for the evidence of other crimes. 12031 was read not to be impacted by 374c because doing so would do damage to the legisaltive intent of 12031.

Again, panel courts are presumed to have knowledge of all statutes and holdings, and the holding they create sticks even if wrong (i.e., could be overruled by an en banc panel or the S. Ct.

So, in essence, due to this ruling, 374c only applies if you ACTUALLY shoot from or across a public road or highway, and because 12031 has pre-existing languagethat addresses "from a STREET in a prohibited area of unincorporated territory", that language shows the legislative intent to limit the violation of 12031 to ONLY those streets in the prohibited areas.

I think I now see your point, and I am finally beginning to understand what you have been trying to say all along.

As I stated earlier, being told I am wrong won't change my opinion, but beingshown I am wrong, will.

I will still be very hesitant to practice Loaded Open Carry on public roads and highways in unincorporated territory, even when clearly not in prohibited areas, due to the fact that if I had trouble understanding the nuances of People v. Knight, then Officer Joe may have similar difficulties. As has been said many times before "You may beat the charge, but you won't beat the ride".

 

[Decoligny]

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ChickenFarmer wrote:

I thought I saw your argument...

The court was ruling that 12031 was the end all be all of where the person could be guilty of 12031. . . They intended to say that 374c was invalid and didn't effect 12031?

Not invalid, just not applicable to 12031. It is still a misdemeanor to discharge a firearm from or upon a public road or highway.

 

[ChickenFarmer]

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That does beg the question then...what is a prohibited area in an unincorporated city then? Can it only be made prohibited then by local ordinances?

For example...Altadena is not incorporated, thus loaded open carry would be legal UNLESS there was a county ordinance that made it illegal?

Decoligny wrote:

ChickenFarmer wrote:

I thought I saw your argument...

The court was ruling that 12031 was the end all be all of where the person could be guilty of 12031. . . They intended to say that 374c was invalid and didn't effect 12031?

Not invalid, just not applicable to 12031. It is still a misdemeanor to discharge a firearm from or upon a public road or highway.

 

[Mike]

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ChickenFarmer wrote:

The court was ruling that 12031 was the end all be all of where the person could be guilty of 12031. . . They intended to say that 374c was invalid and didn't effect 12031?

A an appeallate panel is presumed to have knowledge of all the law at the time it renders a decisison.

Nobody said 374c was invalid. The issue is consturction of 12031.

 

[Mike]

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Decoligny wrote:

So, in essence, due to this ruling, 374c only applies if you ACTUALLY shoot from or across a public road or highway, and because 12031 has pre-existing languagethat addresses "from a STREET in a prohibited area of unincorporated territory", that language shows the legislative intent to limit the violation of 12031 to ONLY those streets in the prohibited areas.

Right - rember when Clinton said "that depends on the meaning of "'is'"? He was serious.

 

[Mike]

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Decoligny wrote:

I will still be very hesitant to practice Loaded Open Carry on public roads and highways in unincorporated territory, even when clearly not in prohibited areas, due to the fact that if I had trouble understanding the nuances of People v. Knight, then Officer Joe may have similar difficulties. As has been said many times before "You may beat the charge, but you won't beat the ride".

Nothing wrong with being conservative; it is also true you could be arrested for disorderly conduct for even open carrying unloaded; the parade of horribles goes on, so many people choose never to carry outside their home.

But the focus now is to get the LA DA and others to recognize the existence if Knight, whose existence was validated in a sense by the legislature's failed effort to overrule it and ban loaded carry in public areas and autos.

 

[cato]

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I wish Mike had made his argument this clear two years ago. Becausewe've been putting the otherinterpretation out thereI think we've done some harm to LOC in unincorporated territory.

Mike,

Ca. has no general disorderly conduct statute. There is disturbing the peace with noise or fighting (415 PC) and disorderly conduct when drunk or engaged in prostitution (PC 647 &subsections).

The closest we get is 417 brandishing - draw or exhibit in a rude angry or threatening manor. OCing in a holster or slung over the shoulder is certainly not that.