Difference between revisions of "Defining loaded in California"

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(People v. Clark)
(People v. Clark)
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The key paragraphs of the decision:
 
The key paragraphs of the decision:
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<tr><td>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.
 
<tr><td>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.
  

Revision as of 21:25, 19 July 2008

"Loaded" from the Penal Code

Loaded Firearm is defined in Penal Code 12031:

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. 
 
(e) In order to determine whether or not a firearm is loaded for the purpose of enforcing this section, peace officers 
are authorized to examine any firearm carried by anyone on his or her person or in a vehicle while in any public place 
or on any public street in an incorporated city or prohibited area of an unincorporated territory. Refusal to allow a 
peace officer to inspect a firearm pursuant to this section constitutes probable cause for arrest for violation of this 
section. 
 
(f) As used in this section, "prohibited area" means any place where it is unlawful to discharge a weapon. 
 
(g) A firearm shall be deemed to be loaded for the purposes of this section when there is an unexpended cartridge 
or shell 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.
 
(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. 
 
(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.

People v. Clark

People v. Clark 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 …

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-16-CA 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. Examples of those exceptions are in the course of committing a felony, carrying in the Governor's residence, and having been adjudicated a member of a criminal street gang. Those exceptions 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.

Ammunition or Loaded Magazines in locked containers

There exists a myth in law enforcement circles that when complying with handgun transport restrictions, ammunition or loaded magazines can not be in the same locked container. As long as the rounds are not in the chamber and there is no magazine (fixed or detachable) with rounds in it that is directly attached in the firing position of the firearm, the firearm is considered unloaded. Please 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.

Frequently Asked Questions about "Loaded firearms"

Yes, 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”.

Yes, 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”.

No, 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.

Your comfort level may lead you to do more than the law requires.