Defining loaded in California
Loaded in California
"Loaded" generally means ammunition is in the chamber or magazine well of a weapon.
Ammunition in magazines, clips or speed-loaders is legal.
Ammunition in the same case with the weapon is legal.
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"Loaded" from the Penal Code
Loaded Firearm is defined in Penal Code 16840 (old 12031):
(b) As used in Chapter 2 (commencing with Section 25100) of Division 4 of Title 4, in subparagraph (A) of paragraph (6) of subdivision (c) of Section 25400, and in Sections 25850 to 26055, inclusive, (1) A firearm shall be deemed to be "loaded" when there is an unexpended cartridge or shell, consisting of a case that holds a charge of powder and a bullet or shot, in, or attached in any manner to, the firearm, including, but not limited to, in the firing chamber, magazine, or clip thereof attached to the firearm. (2) Notwithstanding paragraph (1), a muzzle-loader firearm shall be deemed to be loaded when it is capped or primed and has a powder charge and ball or shot in the barrel or cylinder.
People v. Clark
People v. Clark(1996) 45 Cal.App.4th 1147 , 53 Cal.Rptr.2d 99 specifically limited 12031(g) by holding that in order to be “loaded” a firearm must have ammunition “placed into a position from which it can be fired”. The case rested on the fact that a shotgun is not loaded when shotgun shells were attached to a shotgun inside a buttstock shell carrier.
The key paragraphs of the decision:
The term "loaded" has a commonly understood meaning: "to put a load or charge in (a device or piece of equipment) a gun" or "to put a load on or in a carrier, device, or container; esp: to insert the charge or cartridge into the chamber of a firearm." (Webster's New Collegiate Dict. (1976) p. 674.) Under the commonly understood meaning of the term "loaded," a firearm is "loaded" when a shell or cartridge has been placed into a position from which it can be fired; the shotgun is not "loaded" if the shell or cartridge is stored elsewhere and not yet placed in a firing position. The shells here were placed in a separate storage compartment of the shotgun and were not yet "loaded" as the term is commonly understood. There is nothing in Health and Safety Code section 11370.1 which indicates the Legislature did not intend to use the term "loaded" in its commonly understood meaning. We note Penal Code section 12031 states it is defining the term "loaded" "for the purposes of this section" (Pen. Code, § 12031, subd. (g)); it does not state it is applicable to a Health and Safety Code offense nor does Health and Safety Code section 11370.1 refer to the Penal Code definition. Second, even if we were to accept the Attorney General's assertion that the definition of "loaded" contained in Penal Code section 12031, subdivision (g) applies to Health and Safety Code section 11370.1, subdivision (a), we would still conclude the shotgun here was not loaded. … [2] A statute "must be given a reasonable and commonsense interpretation consistent with the apparent purpose and intention of the Legislature, practical rather than technical in nature, and which, when applied, will result in wise policy rather than mischief or absurdity. [Citations.]" (Beaty v. Imperial Irrigation Dist. (1986) 186 Cal.App.3d 897, 902 [231 Cal.Rptr. 128].) "The words must be construed in context in light of the nature and obvious purpose of the statute where they appear. [Citation.]" (Decker v. City of Imperial Beach (1989) 209 Cal.App.3d 349, 354 [257 Cal.Rptr. 356]; Lakin v. Watkins Associated Industries(1993) 6 Cal.4th 644, 659 [25 Cal.Rptr.2d 109, 863 P.2d 179].) … Given the examples are all consistent with an intent to use the common meaning of "loaded," it follows the Legislature's use of the phrase "attached in any manner" to the firearm was intended to encompass a situation where a shell or cartridge might be attached to a firearm or "loaded" for firing by some unconventional method. The phrase does not demonstrate a clear Legislative intent to deem a firearm loaded no matter how a shell is attached to a firearm; in particular, it does not indicate a clear intent to deem a gun "loaded" when the ammunition, as here, is in a storage compartment which is not equivalent to either a magazine or clip and from which the ammunition cannot be fired. Our conclusion that the Legislature intended "loaded" as used in Penal Code section 12031 to reflect the common definition is supported by the court in People v. Heffner (1977) 70 Cal.App.3d 643, 650 [139 Cal.Rptr. 45], which reached the same conclusion …
The holding of People v. Clark applies to all types of firearms, not just shotguns.
There remains a lack of clarity whether a detachable magazine with rounds in the magazine inserted into the magazine well of a firearm is loaded as this may constitute a loaded firearm However, People v. Clark makes it very clear that loaded magazines in the same case or on a person's belt but not in the magazine well do not constitute a loaded firearm. Loaded magazines in a buttstock like the SU-16CA but an empty chamber and magazine well would not constitute a loaded firearm.
There are uncommon exceptions in California law that state that a loaded magazine in the same area as an unloaded firearm constitutes a loaded firearm. Those exceptions are outlined below. Those alternate definitions also help prove the rule that the definition of loaded firearm requires rounds in the chamber or rounds in a magazine in a firing position directly attached to the action.
Recent Law Enforcement Training Materials
Some agencies are releasing materials their officers regarding Unloaded Open Carry which address the concept of loaded.
PC § 12031(g) – Statutory Definition of “Loaded” A firearm is deemed to be loaded when there is an unexpended shell ... in, or attached in any manner to, the firearm. PC § 12031(g). Legislative history: The Legislature’s use of the phrase “attached in any manner” to the firearm was intended to encompass a situation where a shell or cartridge might be attached to a firearm or “loaded” for firing by some unconventional method. The phrase does not demonstrate a clear Legislative intent to deem a firearm loaded no matter how a shell is attached to a firearm, even when shells are placed in a separate storage compartment at the rear of a shotgun’s stock. People v. Clark, 45 Cal. App. 4th 1147 (1996). Case Law Definition of “Loaded” = Ready for Firing For purposes of PC § 12031, a firearm is loaded when a shell or cartridge has been placed into a position from which it can be fired. A firearm is not loaded if the shell or cartridge is stored elsewhere and not yet placed in a firing position. People v. Clark, 45 Cal. App. 4th 1147, 1153 (1996).
When is a firearm considered "Loaded"? The short answer is that it depends on the circumstances. Ordinarily, a firearm is loaded if the ammunition is placed into the weapon in a manner that it could be fired. If the suspect is being charged with carrying the firearm with the intent to commit a felony (12023 PC), then a special definition of "loaded" applies. The firearm is considered "loaded" if the weapon, and ammunition capable of being fired in the weapon, are in the immediate possession of the subject (12001(j) PC). Penal Code § 171e provides a similar definition of "loaded" for firearms carried in the state capitol or offices (171c PC), and in the residences of designated elected officials (171d PC). Deputies should be familiar with this special definition, and be careful not to apply it to circumstances not involving a violation of sections 171c, 171d, or 12023. The majority of offenses involving the carrying of a loaded weapon fall under 12031 PC. Section 12031(g) defines a weapon as being loaded when the ammunition is in, or attached to, the firearm. It specifically provides that a weapon is loaded if there is ammunition in the firing chamber, magazine or clip. The California Court of Appeal considered the question of when a weapon is loaded in the case of People v. Harvey Lee Clark (45 Cal App. 4th 1147). The defendant had a single-shot shotgun which had no shell in the chamber. It had a buttstock shell holder which held live rounds. The court clarified the "attached to" language of 12031(g) holding that the weapon was unloaded since the rounds could not be fired from the buttstock holder.
Similar documents have been issued by the Orange County Sheriff's Office, CPOA, Los Angeles District Attorney's Office and Sunnyvale.
Ammunition or Loaded Magazines in locked containers
Ammunition may be carried in the same container as the gun – loose ammunition or ammunition in ammo boxes does not make a gun loaded, because the ammunition is NOT “placed into a position from which it can be fired”.
You may transport loaded magazines and speed loaders, so long as they are not inserted into the magazine well or cylinder of the firearm. That does not make a gun loaded, because the ammunition carried that way is NOT “placed into a position from which it can be fired”.
A loaded magazine is not the same as a loaded weapon, and possession of a weapon and a loaded magazine for that weapon does not, necessarily, mean you have a loaded weapon.
Anyone who asserts something contrary to the above 3 points is simply wrong. That does not mean you cannot be arrested by uninformed or badly trained law enforcement officer, or charged with the crime of carrying a loaded weapon by an uninformed or politically motivated prosecutor. It does mean that, if it goes to court and you have good representation, the prosecution should lose on the law. There are certain exceptions to this outlined below.
Your comfort level may lead you to do more than the law requires. Please also see Transport Restriction for Handguns for some important additional notes on transporting handguns in California.
"Prohibited Area"
The definition of "prohibited area" generally turns on whether the municipal or county code in that area prohibits the discharge of a firearm. Additional, Penal Code 374c makes shooting from any public road illegal.
Rare Exceptions to Firearm Not Loaded
There are rare exceptions to the rule of "ammunition in firing position" that do define a firearm as loaded when other factors are present.
16840(a) (old 12001(j)) only applies to 25800 (old 12023) (carry with intent to commit a felony).
16840(a) As used in Section 25800, a firearm shall be deemed to be "loaded" whenever both the firearm and the unexpended ammunition capable of being discharged from the firearm are in the immediate possession of the same person. 25800 (a) Every person who carries a loaded firearm with the intent to commit a felony is guilty of armed criminal action.
171e only applies inside the State Capitol, legislative offices, office of the Governor, Governor’s residence, etc.
171c. Any person, except…, or a person holding a valid license to carry the firearm pursuant to Article 3 (commencing with Section 12050) of Chapter 1 of Title 2 of Part 4, who brings a loaded firearm into, or possesses a loaded firearm within, the State Capitol, any legislative office, any office of the Governor or other constitutional officer, or any hearing room in which any committee of the Senate or Assembly is conducting a hearing, or upon the grounds of the State Capitol, which is bounded by 10th, L, 15th, and N Streets in the City of Sacramento, 171d. Any person, … shall be punished by imprisonment in a county jail for not more than one year, by fine of not more than one thousand dollars ($1,000), or by both the fine and imprisonment, or by imprisonment in the state prison, if he or she does any of the following: (a) Brings a loaded firearm into, or possesses a loaded firearm within, the Governor's Mansion, or any other residence of the Governor, the residence of any other constitutional officer, or the residence of any Member of the Legislature. (b) Brings a loaded firearm upon, or possesses a loaded firearm upon, the grounds of the Governor's Mansion or any other residence of the Governor, the residence of any other constitutional officer, or the residence of any Member of the Legislature. 171e. A firearm shall be deemed loaded for the purposes of Sections 171c and 171d whenever both the firearm and unexpended ammunition capable of being discharged from such firearm are in the immediate possession of the same person.
Note that these definitions say nothing about magazines, only firearm and ammunition.
The Fish and Game Code has a different definition:
2006. It is unlawful to possess a loaded rifle or shotgun in any vehicle or conveyance or its attachments which is standing on or along or is being driven on or along any public highway or other way open to the public. A rifle or shotgun shall be deemed to be loaded for the purposes of this section when there is an unexpended cartridge or shell in the firing chamber but not when the only cartridges or shells are in the magazine.
There is a sentence enhancement for carrying concealed in PC 25400(c)(6) (old 12025(b)(6))
(c) Carrying a concealed firearm in violation of this section is punishable as follows: ... (6) If both of the following conditions are met, by imprisonment in the state prison, or by imprisonment in a county jail not to exceed one year, by a fine not to exceed one thousand dollars ($1,000), or by both that fine and imprisonment: (A) The pistol, revolver, or other firearm capable of being concealed upon the person is loaded, or both it and the unexpended ammunition capable of being discharged from it are in the immediate possession of the person or readily accessible to that person. (B) The person is not listed with the Department of Justice pursuant to paragraph (1) of subdivision (c) of Section 11106 as the registered owner of that pistol, revolver, or other firearm capable of being concealed upon the person.
So, if you either have a conventionally ‘loaded’ concealed weapon, or have the concealed weapon and ammunition for it, AND the weapon is not registered to you, you may get state prison instead of county jail.
There is a sentence enhancement for having a weapon and having armor-piercing ammunition:
12022.2. (a) Any person who, while armed with a firearm in the commission or attempted commission of any felony, has in his or her immediate possession ammunition for the firearm designed primarily to penetrate metal or armor, shall upon conviction of that felony or attempted felony, in addition and consecutive to the punishment prescribed for the felony or attempted felony, be punished by an additional term of 3, 4, or 10 years.
There is a sentence enhancement for those who commit defined street gang crimes and have both a weapon and a detachable magazine for it – whether or not there is ammunition and whether the weapon is loaded or unloaded (apparently in the 12031(g) sense):
12021.5. (a) Every person who carries a loaded or unloaded firearm on his or her person, or in a vehicle, during the commission or attempted commission of any street gang crimes described in subdivision (a) or (b) of Section 186.22, shall, upon conviction of the felony or attempted felony, be punished by an additional term of imprisonment in the state prison for one, two, or three years in the court's discretion. The court shall impose the middle term unless there are circumstances in aggravation or mitigation. The court shall state the reasons for its enhancement choice on the record at the time of sentence. (b) Every person who carries a loaded or unloaded firearm together with a detachable shotgun magazine, a detachable pistol magazine, a detachable magazine, or a belt-feeding device on his or her person, or in a vehicle, during the commission or attempted commission of any street gang crimes described in subdivision (a) or (b) of Section 186.22, shall, upon conviction of the felony or attempted felony, be punished by an additional term of imprisonment in the state prison for two, three, or four years in the court's discretion. The court shall impose the middle term unless there are circumstances in aggravation or mitigation. The court shall state the reasons for its enhancement choice on the record at the time of sentence.
Health and Safety Code 11370 and 11550 refer to a loaded firearm, but do not define loaded (see People v Clark notes above).
Also possession of a firearm and the ammunition for it at a gun show is illegal, unless you are a law enforcement officer, guard, or vendor:
27730 (old 12071.4(g)). No person at a gun show or event, other than security personnel or sworn peace officers, shall possess at the same time both a firearm and ammunition that is designed to be fired in the firearm. Vendors having those items at the show for sale or exhibition are exempt from this prohibition.
A "Public Place"
Penal Code 25850 (old 12031(a)) specifies that carrying a "loaded" firearm may be a crime if this occurs in a "public place".
(a) A person is guilty of carrying a loaded firearm when the person carries a loaded firearm on the 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.
A "public street" is fairly clear. What is a "public place"?
Penal Code 25850 does not provide guidance. Nearby Penal Code section 25605(a) (old 12026) suggests certain areas are not public, for handguns:
(a) Section 25400 shall not apply to or affect any citizen of the United States or legal resident over the age of 18 years who resides or is temporarily within this state, and who is not within the excepted classes prescribed by Chapter 2 (commencing with Section 29800) or Chapter 3 (commencing with Section 29900) of Division 9 of this title, or Section 8100 or 8103 of the Welfare and Institutions Code, who carries, either openly or concealed, anywhere within the citizen's or legal resident's place of residence, place of business, or on private property owned or lawfully possessed by the citizen or legal resident, any pistol, revolver, or other firearm capable of being concealed upon the person. (b) No permit or license to purchase, own, possess, keep, or carry, either openly or concealed, shall be required of any citizen of the United States or legal resident over the age of 18 years who resides or is temporarily within this state, and who is not within the excepted classes prescribed by Chapter 2 (commencing with Section 29800) or Chapter 3 (commencing with Section 29900) of Division 9 of this title, or Section 8100 or 8103 of the Welfare and Institutions Code, to purchase, own, possess, keep, or carry, either openly or concealed, a pistol, revolver, or other firearm capable of being concealed upon the person within the citizen's or legal resident's place of residence, place of business, or on private property owned or lawfully possessed by the citizen or legal resident. (c) Nothing in this section shall be construed as affecting the application of Sections 25850 to 26055, inclusive.
Historical cases
Three California cases provide information on what courts see as 'public places' for purposes of 12031: People v. Green (1971) 15 Cal App 3d 766 (a hospital parking lot), People v. Vega (1971) 18 Cal App 3d 954 (a supermarket parking lot), and People v. Overturf (1976) 64 Cal App 3d Supp 1 (the driveway at an apartment complex). The locations in each case were private property, but places where the public ordinarily had access in order to do business.
Additionally, People v. Marotta (1981) 128 Cal App 3d Supp 1 suggests businesses, open to the public, are not necessarily 12031 'public places'; notable for the conclusion that a cab driver is actually in his/her place of business while in a cab, and thus meets the exemption for businesses in 12031(h), the court further writes
The principle of statutory construction that code provisions must be "construed according to the fair import of their terms, with a view to effect its [the code's] objects and to promote justice" (Pen. Code, § 4), is also of no particular help. Although the general purpose of the Weapons' Control Law is to control the threat to public safety in the indiscriminate possession and carrying about of concealed and loaded weapons, the express exception, to allow business persons to protect their property, must also be given effect. We cannot choose to give heed to one legislative purpose, so as to achieve the laudable social end of stronger gun control, and yet ignore the plain intent of a legislative purpose embodied in the exceptions. Furthermore, the legislative purpose which allows business people to possess weapons to protect their property is as important to taxicab operators as it is to business persons in fixed geographic locations. The possible danger to the public posed by cab drivers with guns is no more grave than that posed by armed retail store operators. We can perceive no sound or obvious reason which would warrant our reading into this law a distinction which it plainly does not now contain.
Recent cases
A recent case, People v. Strider (People v. Strider, 177 Cal. App. 4th 1393) begins to set some limitations. Strider's decision says
"A fenced front yard is not a public place for purposes of Penal Code Sec. 12031’s prohibition on carrying a loaded firearm in a public place; thus, officer who saw defendant with a firearm in such a yard could not have reasonably suspected defendant unlawfully had a firearm in a public place, and trial court erred in denying defendant’s pretrial suppression motion."
For more discussion of the exceptions that allow unlicensed concealed carry see Unlicensed Concealed Carry.
