Difference between revisions of "Unlicensed Concealed Carry"

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== At Work ==
 
== At Work ==
  
Penal Code § [http://codes.lp.findlaw.com/cacode/PEN/3/4/2/1/2/s12025 12025] makes it a crime to carry a concealed firearm without a permit. In 1988 the California Court of Appeals ruled in [http://login.findlaw.com/scripts/callaw?dest=ca/calapp3d/206/580.html ''People v. Melton''] (1988) 206 Cal.App.3d 580 that a convenience store clerk could not take advantage of the general waiver in Penal Code § 12026 to carry a concealed firearm at a convenience store where he was employed. In 1989, the California Legislature amended PC § [http://codes.lp.findlaw.com/cacode/PEN/3/4/2/1/2/s12026 12026] to read:
+
Penal Code § [http://law.onecle.com/california/penal/25400.html 25400] (was 12025) makes it a crime to carry a concealed firearm without a permit. In 1988 the California Court of Appeals ruled in [http://login.findlaw.com/scripts/callaw?dest=ca/calapp3d/206/580.html ''People v. Melton''] (1988) 206 Cal.App.3d 580 that a convenience store clerk could not take advantage of the general waiver in Penal Code § 12026 to carry a concealed firearm at a convenience store where he was employed. In 1989, the California Legislature amended PC § [http://codes.lp.findlaw.com/cacode/PEN/3/4/2/1/2/s12026 12026] to read:
  
   (a)Section 12025 shall not apply to or affect any citizen of the United States
+
   (a)Section 12025 shall not apply to or affect any citizen of the
  or legal resident over the age of 18 years who resides or is temporarily within
+
United States or legal resident over the age of 18 years who
  this state, and who is not within the excepted classes prescribed by Section
+
resides or is temporarily within this state, and who is not within
  12021 or 12021.1 of this code or Section 8100 or 8103 of the Welfare and Institutions
+
the excepted classes prescribed by Section 12021 or 12021.1 of this
  Code, who carries, either openly or concealed, anywhere within the citizen's or
+
code or Section 8100 or 8103 of the Welfare and Institutions Code,
  legal resident's place of residence, place of business, or on private property
+
who carries, either openly or concealed, anywhere within the
  owned or lawfully possessed by the citizen or legal resident any pistol, revolver,
+
citizen's or legal resident's place of residence, place of
  or other firearm capable of being concealed upon the person.
+
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
+
   (b)No permit or license to purchase, own, possess, keep, or carry,
  or concealed, shall be required of any citizen of the United States or legal
+
either openly or concealed, shall be required of any citizen of the
  resident over the age of 18 years who resides or is temporarily within this state,
+
United States or legal resident over the age of 18 years who
  and who is not within the excepted classes prescribed by Section 12021 or 12021.1
+
resides or is temporarily within this state, and who is not within
  of this code or Section 8100 or 8103 of the Welfare and Institutions Code, to
+
the excepted classes prescribed by Section 12021 or 12021.1 of this
  purchase, own, possess, keep, or carry, either openly or concealed, a pistol,
+
code or Section 8100 or 8103 of the Welfare and Institutions Code,
  revolver, or other firearm capable of being concealed upon the person within
+
to purchase, own, possess, keep, or carry, either openly or
  the citizen's or legal resident's place of residence, place of business, or on
+
concealed, a pistol, revolver, or other firearm capable of being
  private property owned or lawfully possessed by the citizen or legal resident.
+
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 Section 12031.
+
   (c)Nothing in this section shall be construed as affecting the
 +
application of Section 12031.
  
The legislature also included a signing statement with the bill:
+
The legislature also included a statement of intent with the bill:
  
   The purpose of enacting this measure is to abrogate the holding in ''People v. Melton'',
+
   The purpose of enacting this measure is to abrogate the holding in
  206 Cal.App.3d 580, insofar as that decision purports to require the issuance of a
+
''People v. Melton'', 206 Cal.App.3d 580, insofar as that decision
  concealed weapons permit in order to carry a pistol, revolver, or other firearm capable
+
purports to require the issuance of a concealed weapons permit in
  of being concealed upon the person, whether openly or concealed, within the places
+
order to carry a pistol, revolver, or other firearm capable of
  mentioned in Section 12026 of the Penal Code, by an individual who has a proprietary,
+
being concealed upon the person, whether openly or concealed within
  possessory, or substantial ownership interest in the place.
+
the places mentioned in Section 12026 of the Penal Code, by an
 +
individual who has a proprietary, possessory, or substantial
 +
ownership interest in the place.
  
Additionally, PC § [http://codes.lp.findlaw.com/cacode/PEN/3/4/2/1/2/s12031 12031] restricts the carrying of loaded firearms:
+
Additionally, PC § [http://law.onecle.com/california/penal/25850.html 25850] (was 12031) restricts the carrying of loaded firearms:
  
   (a)(1)A person is guilty of carrying a loaded firearm when he or she carries a loaded
+
   (a)(1)A person is guilty of carrying a loaded firearm when he or
  firearm on his or her person or in a vehicle while in any public place or on any public
+
she carries a loaded firearm on his or her person or in a vehicle
  street in an incorporated city or in any public place or on any public street in a
+
while in any public place or on any public street in an
  prohibited area of unincorporated territory.
+
incorporated city or in any public place or on any public street in
 +
a prohibited area of unincorporated territory.
  
 
As long as someone is at home or work and not in areas that may be deemed public, then one can carry a loaded firearm. See [[#Semi Public Places Restrictions|Semi Public Places Restrictions]] for more on what is or is not a public place.
 
As long as someone is at home or work and not in areas that may be deemed public, then one can carry a loaded firearm. See [[#Semi Public Places Restrictions|Semi Public Places Restrictions]] for more on what is or is not a public place.
Line 44: Line 52:
 
California Appelate Courts returned to the question of whether one could carry concealed in a place of business in [http://login.findlaw.com/scripts/callaw?dest=ca/calapp3d/234/supp15.html&search=206 ''People v. Barela''] (1991) 234 Cal.App.3d Supp. 15. The facts in that case were unusual as an individual held himself out as a police officer and provided security in return for discounts on food. The person who supposedly granted him permission to carry concealed and loaded did not have the authority to grant him that. Further the court ruled that since he could not exclude individuals he did not have a possessory interest in the location and therefor it wasn't his place of business. However, the court affirms the common understanding of the Legislature's overturning of ''People v. Melton''.
 
California Appelate Courts returned to the question of whether one could carry concealed in a place of business in [http://login.findlaw.com/scripts/callaw?dest=ca/calapp3d/234/supp15.html&search=206 ''People v. Barela''] (1991) 234 Cal.App.3d Supp. 15. The facts in that case were unusual as an individual held himself out as a police officer and provided security in return for discounts on food. The person who supposedly granted him permission to carry concealed and loaded did not have the authority to grant him that. Further the court ruled that since he could not exclude individuals he did not have a possessory interest in the location and therefor it wasn't his place of business. However, the court affirms the common understanding of the Legislature's overturning of ''People v. Melton''.
  
   In ''People v. Melton'' (1988) 206 Cal.App.3d 580 [253 Cal.Rptr. 661], the Court of
+
   In ''People v. Melton'' (1988) 206 Cal.App.3d 580 [253 Cal.Rptr.
  Appeal affirmed the conviction of a convenience store clerk under Penal Code section
+
661], the Court of Appeal affirmed the conviction of a convenience
  12025. The clerk was armed with a concealed weapon while working. He argued that Penal
+
store clerk under Penal Code section 12025. The clerk was armed
  Code section 12026 provided an exception to section 12025 that allowed him to carry a
+
with a concealed weapon while working. He argued that Penal Code
  concealed weapon at his workplace. (206 Cal.App.3d at p.586.) The court disagreed and
+
section 12026 provided an exception to section 12025 that allowed
  drew a distinction between "... carrying a concealable weapon ... and carrying such a
+
him to carry a concealed weapon at his workplace. (206 Cal.App.3d
  weapon concealed upon the person as prohibited in section 12025." (Id. at p.594.) The
+
at p.586.) The court disagreed and drew a distinction between "...
  court found that section 12026 did not provide any exceptions to Penal Code section
+
carrying a concealable weapon ... and carrying such a weapon
  12025, but "... merely highlights certain circumstances where owning, possessing,
+
concealed upon the person as prohibited in section 12025." (Id. at
  keeping or carrying a concealable weapon is not prohibited under section 12025."
+
p.594.) The court found that section 12026 did not provide any
 +
exceptions to Penal Code section 12025, but "... merely highlights
 +
certain circumstances where owning, possessing, keeping or carrying
 +
a concealable weapon is not prohibited under section 12025."
 
   (206 Cal.App.3d at pp.594-595, fn. 4.)
 
   (206 Cal.App.3d at pp.594-595, fn. 4.)
 
    
 
    
   The Legislature responded to the Melton decision (206 Cal.App.3d 580) by amending
+
   The Legislature responded to the Melton decision (206 Cal.App.3d
  Penal Code section 12026 to provide that a person may carry a concealable weapon
+
580) by amending Penal Code section 12026 to provide that a person
  "either openly or concealed" in his or her place of business or residence.fn. 1
+
may carry a concealable weapon "either openly or concealed" in his
   The Legislature also enacted an accompanying statement of purpose: "The purpose
+
or her place of business or residence.fn. 1
  of enacting this measure is to abrogate the holding in ''People v. Melton'',
+
   The Legislature also enacted an accompanying statement of purpose:
  206 Cal.App.3d 580, insofar as that decision [234 Cal.App.3d Supp. 20] purports
+
"The purpose of enacting this measure is to abrogate the holding in
  to require the issuance of a concealed weapons permit in order to carry a pistol,
+
''People v. Melton'', 206 Cal.App.3d 580, insofar as that decision
  revolver, or other firearm capable of being concealed upon the person, whether
+
[234 Cal.App.3d Supp. 20] purports to require the issuance of a
  openly or concealed, within the places mentioned in Section 12026 of the Penal
+
concealed weapons permit in order to carry a pistol, revolver, or
  Code, by an individual who has a proprietary, possessory, or substantial ownership
+
other firearm capable of being concealed upon the person, whether
  interest in the place." (Stats. 1989, ch. 958, § 2, No. 8 West's Cal. Legis.
+
openly or concealed, within the places mentioned in Section 12026
  Service, pp.2988-2989 [No. 5 Deering's Adv. Legis. Service, p. 3340].)
+
of the Penal Code, by an individual who has a proprietary,
 +
possessory, or substantial ownership interest in the place."
 +
(Stats. 1989, ch. 958, § 2, No. 8 West's Cal. Legis. Service,
 +
pp.2988-2989 [No. 5 Deering's Adv. Legis. Service, p. 3340].)
  
 
Again quoting ''Barela'':
 
Again quoting ''Barela'':
  
   The legislative statement of purpose makes clear that an employee must have a
+
   The legislative statement of purpose makes clear that an employee
  possessory interest in his or her workplace in order for that workplace to be
+
must have a possessory interest in his or her workplace in order
  considered the employee's "place of business" under section 12026. Only those
+
for that workplace to be considered the employee's "place of
  employees who have the right to exclude others from their workplace, and the
+
business" under section 12026. Only those employees who have the
  right to control activities there, may carry concealed weapons at work without
+
right to exclude others from their workplace, and the right to
  a permit or license.
+
control activities there, may carry concealed weapons at work
 +
without a permit or license.
  
As such most employees and at most places of business can carry a concealed loaded firearm as long as they have the actual permission of someone entitled to grant that permission to exclude others and control activities. However, there are potential limitations as to where one can carry at a place of business as outlined [[#Semi Public Places Restrictions|below]]. Note that "place of business" probably includes a taxi cab for a taxi driver; see [http://login.findlaw.com/scripts/callaw?dest=ca/calapp3d/128/supp1.html ''People v. Marotta''] (1981) 128 Cal.App.3d Supp. 1.
+
As such most employees and at most places of business can carry a concealed loaded firearm as long as they have the actual permission of someone entitled to grant that permission to exclude others and control activities. However, there are potential limitations as to where one can carry at a place of business as outlined [[#Semi Public Places Restrictions|below]]. Note that "place of business" probably includes a taxi cab for a taxi driver; see [http://login.findlaw.com/scripts/callaw?dest=ca/calapp3d/128/supp1.html ''People v. Marotta''] (1981) 128 Cal.App.3d Supp. 1 but see [http://login.findlaw.com/scripts/callaw?dest=ca/calapp3d/168/168.html ''People v. Wooten''] (1985) 168 Cal.App.3d 168, "Construing Penal Code section 12026 to treat defendant's pickup truck as a 'place of business' simply because he worked as a part-time bounty hunter would not serve any of these ends."
  
 
== At Home ==
 
== At Home ==
  
PC § 12026 clearly exempts any homeowner or renter from the restrictions on carrying a loaded concealed weapon in their home or rental property. PC 12026 § (b) states in relavent part:
+
PC § 25605 (was 12026) clearly exempts any homeowner or renter from the restrictions on carrying a loaded concealed weapon in their home or rental property. PC 25605 § (b) states in relevant part:
  
   No permit or license to ... carry, either openly or concealed, shall be required
+
   No permit or license to ... carry, either openly or concealed,
  of any citizen of the United States or legal resident over the age of 18 years
+
shall be required of any citizen of the United States or legal
  who resides or is temporarily within this state ... who carries, either openly
+
resident over the age of 18 years who resides or is temporarily
  or concealed, anywhere within the citizen's or legal resident's place of residence,
+
within this state ... who carries, either openly or concealed,
   ... or on private property owned or lawfully possessed by the citizen or legal
+
anywhere within the citizen's or legal resident's place of residence,
  resident any pistol, revolver, or other firearm capable of being concealed upon the person.
+
   ... 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.
  
People who are not otherwise prohibited from possessing firearms can carry loaded concealed firearms in homes the own or rent and on any other private property that they "lawfully possess." Lawful possession is generally regarded to include carrying on private property where you have the resident or owner's permission to so carry.
+
People who are not otherwise prohibited from possessing firearms can carry loaded concealed firearms in homes they own or rent and on any other private property that they "lawfully possess." Lawful possession is generally regarded to include carrying on private property where you have the resident or owner's permission to so carry.
  
 
== Semi Public Places Restrictions ==
 
== Semi Public Places Restrictions ==
  
Carrying a loaded concealed firearm is prohibited in areas open to the public, even if they are on private property.
+
Carrying a loaded concealed firearm is prohibited in areas open to the public, even if they are on private property. '''Privately owned''' does not necessarily mean the property is not '''public'''.
  
 
=== People v. Overturf ===
 
=== People v. Overturf ===
 
An important restriction on the carrying of concealed loaded firearms both at home and at work is [http://login.findlaw.com/scripts/callaw?dest=ca/calapp3d/64/supp1.html ''People v. Overturf''] (1976) 64 Cal.App.3d Supp. 1 and it's progeny.
 
An important restriction on the carrying of concealed loaded firearms both at home and at work is [http://login.findlaw.com/scripts/callaw?dest=ca/calapp3d/64/supp1.html ''People v. Overturf''] (1976) 64 Cal.App.3d Supp. 1 and it's progeny.
  
PC § 12031 (h) reads:
+
[http://law.onecle.com/california/penal/25605.html PC § 25605(a)] reads:
  
   Nothing in this section shall prevent any person engaged in any lawful
+
   (a) Section 25400 and Chapter 6 (commencing with Section
  business, including a nonprofit organization, or any officer, employee,
+
26350) of Division 5 shall not apply to or affect any citizen of the
  or agent authorized by that person for lawful purposes connected with
+
United States or legal resident over the age of 18 years who resides
  that business, from having a loaded firearm within the person's place
+
or is temporarily within this state, and who is not within the
  of business, or any person in lawful possession of private property from
+
excepted classes prescribed by Chapter 2 (commencing with Section
  having a loaded firearm on that property.
+
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 handgun.
  
 
But in ''Overturf'', the court held that the common areas of an apartment complex was a public place and thus Mr. Overturf couldn't carry a loaded firearm even though Mr. Overturf was the landlord of the apartment complex.
 
But in ''Overturf'', the court held that the common areas of an apartment complex was a public place and thus Mr. Overturf couldn't carry a loaded firearm even though Mr. Overturf was the landlord of the apartment complex.
  
   Appellant owns and manages a three-building apartment complex located
+
   Appellant owns and manages a three-building apartment complex
  on an acre of land and which is surrounded by fencing. The "victim," of
+
located on an acre of land and which is surrounded by fencing. The
  the age of 19 to 21 years, had been employed to do gardening and clean-up
+
"victim," of the age of 19 to 21 years, had been employed to do
  work in exchange for a salary and an apartment. Because he had been annoying
+
gardening and clean-up work in exchange for a salary and an
  the other tenants with loud, late parties, and excessive consumption of alcohol,
+
apartment. Because he had been annoying the other tenants with
  the victim was discharged and told to remove his personal effects from the
+
loud, late parties, and excessive consumption of alcohol,the victim
  apartment. When he returned to pick up his things he did so with three of
+
was discharged and told to remove his personal effects from the
  his friends. A dispute arose with appellant about how much money was due.
+
apartment. When he returned to pick up his things he did so with
  The victim threatened to "knock [appellant's] teeth down his throat" if he
+
three of his friends. A dispute arose with appellant about how much
  did [64 Cal.App.3d Supp. 4] not immediately pay the amount demanded. The
+
money was due.
  appellant returned to his apartment and telephoned the sheriff. In the meantime,
+
The victim threatened to "knock [appellant's] teeth down his
  he saw the three men on his driveway and feared they might be tampering with
+
throat" if he did [64 Cal.App.3d Supp. 4] not immediately pay the
  appellant's car. Fearing for his safety, appellant took along a 22-caliber pistol
+
amount demanded. The appellant returned to his apartment and
  which he keeps in his apartment. Appellant is 49 years old and suffers from severe
+
telephoned the sheriff. In the meantime, he saw the three men on
  rheumatoid arthritis. The victims are athletic young men of large build whose
+
his driveway and feared they might be tampering with appellant's
  ages run from 19 to 21. As appellant arrived in the driveway he fired his gun
+
car. Fearing for his safety, appellant took along a 22-caliber
  once into a pile of dirt.
+
pistol which he keeps in his apartment. Appellant is 49 years old
 +
and suffers from severe rheumatoid arthritis. The victims are
 +
athletic young men of large build whose ages run from 19 to 21. As
 +
appellant arrived in the driveway he fired his gun
 +
once into a pile of dirt.
 
    
 
    
   Appellant argues that subdivision (f) exempts him from liability both because
+
   Appellant argues that subdivision (f) exempts him from liability
  the incident took place on property which constitutes his place of business within
+
both because the incident took place on property which constitutes
  the meaning of subdivision (f) and on property which, while "public" within the
+
his place of business within the meaning of subdivision (f) and on
  definition of subdivision (a), nevertheless was his private property within
+
property which, while "public" within the definition of subdivision
  subdivision (f). He argues: "... when the Section specifically creates an exception,
+
(a), nevertheless was his private property within subdivision (f).
  it obviously must refer to the acts prohibited ... and not to some other acts such
+
He argues: "... when the Section specifically creates an exception,
  as storing or possessing [a loaded firearm] on a shelf under a counter. Otherwise
+
it obviously must refer to the acts prohibited ... and not to some
  there would be no need in reason and logic to create the exception and the
+
other acts such as storing or possessing [a loaded firearm] on a
  legislature would be presumed to have done a meaningless act."
+
shelf under a counter. Otherwise there would be no need in reason
 +
and logic to create the exception and the legislature would be
 +
presumed to have done a meaningless act."
 
    
 
    
   His argument continues: "... To be an offense in the first place [under
+
   His argument continues: "... To be an offense in the first place
  subdiv. (a)], the acts must occur in a 'public place or on a public street' ...
+
[under subdiv. (a)], the acts must occur in a 'public place or on a
   If it were not at least open to the public, no exemption would be necessary for
+
public street' ...
  owners of private property, because there would be no offense at all."
+
   If it were not at least open to the public, no exemption would be
 +
necessary for owners of private property, because there would be no
 +
offense at all."
  
 
The court goes on to say that there is a distinction between "carrying" and "having" which has the effect of not letting one carry a loaded firearm in one's place of business or home where the area is quasi-public and sums up it's argument with:
 
The court goes on to say that there is a distinction between "carrying" and "having" which has the effect of not letting one carry a loaded firearm in one's place of business or home where the area is quasi-public and sums up it's argument with:
  
   In the third place, such a reading harmonizes with the companion firearm control
+
   In the third place, such a reading harmonizes with the companion
  statutes, Penal Code sections 12025 and 12026. As previously noted, section 12025
+
firearm control statutes, Penal Code sections 12025 and 12026. As
  makes it an offense to carry concealed upon a person or in a vehicle (without
+
previously noted, section 12025 makes it an offense to carry
  having a license so to do) a firearm capable of being concealed upon the person.
+
concealed upon a person or in a vehicle (without having a license
   Section 12026 provides an exception to section 12025. It states that section 12025
+
so to do) a firearm capable of being concealed upon the person.
  shall not be construed to prohibit a citizen over the age of 18 years (with certain
+
   Section 12026 provides an exception to section 12025. It states
  exceptions) "from owning, possessing, or keeping within his place of residence or
+
that section 12025 shall not be construed to prohibit a citizen
  place of business" a firearm capable of being concealed upon the person. The section
+
over the age of 18 years (with certain exceptions) "from owning,
  also provides that no license to purchase, own, possess or keep a firearm at one's
+
possessing, or keeping within his place of residence or place of
  place of residence or business shall be required. In People v. Frost
+
business" a firearm capable of being concealed upon the person. The
  (1932) 125 Cal.App. Supp. 794 [12 P.2d 1096], this court considered the language of
+
section also provides that no license to purchase, own, possess or
  the exception now embodied in section 12026. We there said "By no possible liberality
+
keep a firearm at one's place of residence or business shall be
  of construction could we hold that any of the acts mentioned in this exception are
+
required. In People v. Frost (1932) 125 Cal.App. Supp. 794 [12 P.2d
  denounced by the prohibitive parts of the section." (125 Cal.App. Supp. at p. 796.)
+
1096], this court considered the language of the exception now
   That language is a clear indication that "owning, possessing, or keeping" a firearm
+
embodied in section 12026. We there said "By no possible liberality
  at one's place of residence or business does not equate with "carrying" such a weapon.
+
of construction could we hold that any of the acts mentioned in
 +
this exception are denounced by the prohibitive parts of the
 +
section." (125 Cal.App. Supp. at p. 796.)
 +
   That language is a clear indication that "owning, possessing, or
 +
keeping" a firearm at one's place of residence or business does not
 +
equate with "carrying" such a weapon.
 
    
 
    
   Thus, appellant's argument that the language of subdivision (f) must be coextensive
+
   Thus, appellant's argument that the language of subdivision (f)
  with the liability created in subdivision (a) is not well taken.
+
must be coextensive with the liability created in subdivision (a)
 +
is not well taken.
  
 
Note that the legislative change to PC § 12026 in the interim casts some doubt on ''Overturf''.
 
Note that the legislative change to PC § 12026 in the interim casts some doubt on ''Overturf''.
 +
 +
=== People v. Perez ===
 +
[http://law.justia.com/cases/california/calapp3d/64/297.html People v. Perez64 Cal. App. 3d 297 (1976)] describes 'public place' for purposes of Penal Code 647 (drunk in public)
 +
In the context of section 647, subdivision (f), California courts have
 +
defined a public place variously as "[c]ommon to all or many; general;
 +
open to common use" (In re Zorn, 59 Cal. 2d 650, 652 [30 Cal.Rptr. 811,
 +
381 P.2d 635] (barbershop is a public place); see In re Koehne, 59 Cal. 2d
 +
646, 649 [30 Cal.Rptr. 809, 381 P.2d 633]); "a place where the public has
 +
a right to go and to be ... [o]pen to the free and unrestricted use of the
 +
public" (People v. Belanger, 243 Cal. App. 2d 654, 657 [52 Cal.Rptr. 660]
 +
(inside a parked automobile on a public street is a public place)); and a
 +
place where a "stranger ... was able to walk through the outside area of
 +
[a] home to the front door without challenge." (People v. Olson, supra, 18
 +
Cal. App. 3d at 598 (area outside private home, including lawn, driveway
 +
or front porch is a public place).)
 +
Similar consideration has applied to 'public place' for firearms possession and use, including concealed and open carry.
 +
 +
=== People v. Jimenez ===
 +
In related analysis, the court decided a driveway was a public place for purposes of violating the law against selling drugs within 1000 feet of a school: [http://law.justia.com/cases/california/caapp4th/33/54.html People v. Jimenez, 39 Cal.Rptr.2d 12, 33 Cal.App.4th 54 (1995)]
 +
... from the evidence in the record the jury could not have come to any
 +
conclusion other than that the driveway was a public area. The relevant
 +
evidence was undisputed. The driveway was 10 to 12 feet wide. Defendant and
 +
Smith were standing approximately 20 feet up the driveway when the sale
 +
took place. '''There was no gate, guard dog or other impediment to public'''
 +
'''access'''. The officers testified they had an unobstructed view of the sale
 +
from across the street.
  
 
=== People v. Yarbrough ===
 
=== People v. Yarbrough ===
Line 174: Line 236:
 
=== People v. Strider ===
 
=== People v. Strider ===
  
In [http://www.hoffmang.com/firearms/B204571.pdf ''People v. Strider''] (2009) __ Cal App ___ ___ the California Appellate Court ruled that a front yard surrounded by a fence and gate was not a public place for the purposes of PC § 12031.
+
In [http://www.hoffmang.com/firearms/B204571.pdf ''People v. Strider''] (2009) 177 Cal.App.4th 1393 the California Appellate Court ruled that a front yard surrounded by a fence and gate was not a public place for the purposes of PC § 12031.
  
   3. Because the fenced yard was not a public place within the meaning of section 12031,
+
   3. Because the fenced yard was not a public place within the
  Strider’s suppression motion should have been granted.
+
meaning of section 12031, Strider’s suppression motion should have
   It is undisputed that Deputy Bates detained Strider when Bates entered the yard, followed
+
been granted.
  Strider into the house, and ordered Strider to stop. (See ''In re Manuel G.'',
+
  supra, 16 Cal.4th at p. 821; ''People v. Garry'' (2007) 156 Cal.App.4th 1100, 1106.) The only
+
   It is undisputed that Deputy Bates detained Strider when Bates
  suspected criminal activity suggested by the parties was Strider‟s carrying of a loaded
+
entered the yard, followed Strider into the house, and ordered
  firearm in a public place in violation of section 12031. Thus, the reasonableness of
+
Strider to stop. (See ''In re Manuel G.'', supra, 16 Cal.4th at p.
  the detention turns on whether the People established at the suppression hearing that
+
821; ''People v. Garry'' (2007) 156 Cal.App.4th 1100, 1106.) The
  the fenced front yard was a public place within the meaning of the statute. We conclude
+
only suspected criminal activity suggested by the parties was
  it was not.
+
Strider‟s carrying of a loaded firearm in a public place in
 +
violation of section 12031. Thus, the reasonableness of the
 +
detention turns on whether the People established at the
 +
suppression hearing that the fenced front yard was a public place
 +
within the meaning of the statute. We conclude it was not.
  
As such, the current jurisprudence in California is that if the public can come unmolested or unchallenged into an area, you can not conceal a loaded firearm in that area unless you have a specific and immediate need to defend life or property.
+
As such, the current jurisprudence in California is that if the public can come unmolested or unchallenged into an area, you can not conceal or openly carry a loaded firearm in that area unless you have a specific and immediate need to defend life or property.

Latest revision as of 18:39, 19 July 2014

At Work

Penal Code § 25400 (was 12025) makes it a crime to carry a concealed firearm without a permit. In 1988 the California Court of Appeals ruled in People v. Melton (1988) 206 Cal.App.3d 580 that a convenience store clerk could not take advantage of the general waiver in Penal Code § 12026 to carry a concealed firearm at a convenience store where he was employed. In 1989, the California Legislature amended PC § 12026 to read:

 (a)Section 12025 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 Section 12021 or 12021.1 of this
code 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 Section 12021 or 12021.1 of this
code 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 Section 12031.

The legislature also included a statement of intent with the bill:

 The purpose of enacting this measure is to abrogate the holding in
People v. Melton, 206 Cal.App.3d 580, insofar as that decision
purports to require the issuance of a concealed weapons permit in
order to carry a pistol, revolver, or other firearm capable of
being concealed upon the person, whether openly or concealed within
the places mentioned in Section 12026 of the Penal Code, by an
individual who has a proprietary, possessory, or substantial
ownership interest in the place.

Additionally, PC § 25850 (was 12031) restricts the carrying of loaded firearms:

 (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.

As long as someone is at home or work and not in areas that may be deemed public, then one can carry a loaded firearm. See Semi Public Places Restrictions for more on what is or is not a public place.

California Appelate Courts returned to the question of whether one could carry concealed in a place of business in People v. Barela (1991) 234 Cal.App.3d Supp. 15. The facts in that case were unusual as an individual held himself out as a police officer and provided security in return for discounts on food. The person who supposedly granted him permission to carry concealed and loaded did not have the authority to grant him that. Further the court ruled that since he could not exclude individuals he did not have a possessory interest in the location and therefor it wasn't his place of business. However, the court affirms the common understanding of the Legislature's overturning of People v. Melton.

 In People v. Melton (1988) 206 Cal.App.3d 580 [253 Cal.Rptr.
661], the Court of Appeal affirmed the conviction of a convenience
store clerk under Penal Code section 12025. The clerk was armed
with a concealed weapon while working. He argued that Penal Code
section 12026 provided an exception to section 12025 that allowed
him to carry a concealed weapon at his workplace. (206 Cal.App.3d
at p.586.) The court disagreed and drew a distinction between "...
carrying a concealable weapon ... and carrying such a weapon
concealed upon the person as prohibited in section 12025." (Id. at
p.594.) The court found that section 12026 did not provide any
exceptions to Penal Code section 12025, but "... merely highlights
certain circumstances where owning, possessing, keeping or carrying
a concealable weapon is not prohibited under section 12025."
 (206 Cal.App.3d at pp.594-595, fn. 4.)
 
 The Legislature responded to the Melton decision (206 Cal.App.3d
580) by amending Penal Code section 12026 to provide that a person
may carry a concealable weapon "either openly or concealed" in his
or her place of business or residence.fn. 1
 The Legislature also enacted an accompanying statement of purpose:
"The purpose of enacting this measure is to abrogate the holding in
People v. Melton, 206 Cal.App.3d 580, insofar as that decision
[234 Cal.App.3d Supp. 20] purports to require the issuance of a
concealed weapons permit in order to carry a pistol, revolver, or
other firearm capable of being concealed upon the person, whether
openly or concealed, within the places mentioned in Section 12026
of the Penal Code, by an individual who has a proprietary,
possessory, or substantial ownership interest in the place."
(Stats. 1989, ch. 958, § 2, No. 8 West's Cal. Legis. Service,
pp.2988-2989 [No. 5 Deering's Adv. Legis. Service, p. 3340].)

Again quoting Barela:

 The legislative statement of purpose makes clear that an employee
must have a possessory interest in his or her workplace in order
for that workplace to be considered the employee's "place of
business" under section 12026. Only those employees who have the
right to exclude others from their workplace, and the right to
control activities there, may carry concealed weapons at work
without a permit or license.

As such most employees and at most places of business can carry a concealed loaded firearm as long as they have the actual permission of someone entitled to grant that permission to exclude others and control activities. However, there are potential limitations as to where one can carry at a place of business as outlined below. Note that "place of business" probably includes a taxi cab for a taxi driver; see People v. Marotta (1981) 128 Cal.App.3d Supp. 1 but see People v. Wooten (1985) 168 Cal.App.3d 168, "Construing Penal Code section 12026 to treat defendant's pickup truck as a 'place of business' simply because he worked as a part-time bounty hunter would not serve any of these ends."

At Home

PC § 25605 (was 12026) clearly exempts any homeowner or renter from the restrictions on carrying a loaded concealed weapon in their home or rental property. PC 25605 § (b) states in relevant part:

 No permit or license to ... 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 ... who carries, either openly or concealed,
anywhere within the citizen's or legal resident's place of residence,
 ... 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.

People who are not otherwise prohibited from possessing firearms can carry loaded concealed firearms in homes they own or rent and on any other private property that they "lawfully possess." Lawful possession is generally regarded to include carrying on private property where you have the resident or owner's permission to so carry.

Semi Public Places Restrictions

Carrying a loaded concealed firearm is prohibited in areas open to the public, even if they are on private property. Privately owned does not necessarily mean the property is not public.

People v. Overturf

An important restriction on the carrying of concealed loaded firearms both at home and at work is People v. Overturf (1976) 64 Cal.App.3d Supp. 1 and it's progeny.

PC § 25605(a) reads:

 (a) Section 25400 and Chapter 6 (commencing with Section
26350) of Division 5 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 handgun.

But in Overturf, the court held that the common areas of an apartment complex was a public place and thus Mr. Overturf couldn't carry a loaded firearm even though Mr. Overturf was the landlord of the apartment complex.

 Appellant owns and manages a three-building apartment complex
located on an acre of land and which is surrounded by fencing. The
"victim," of the age of 19 to 21 years, had been employed to do
gardening and clean-up work in exchange for a salary and an
apartment. Because he had been annoying the other tenants with
loud, late parties, and excessive consumption of alcohol,the victim
was discharged and told to remove his personal effects from the
apartment. When he returned to pick up his things he did so with
three of his friends. A dispute arose with appellant about how much
money was due.
The victim threatened to "knock [appellant's] teeth down his
throat" if he did [64 Cal.App.3d Supp. 4] not immediately pay the
amount demanded. The appellant returned to his apartment and
telephoned the sheriff. In the meantime, he saw the three men on
his driveway and feared they might be tampering with appellant's
car. Fearing for his safety, appellant took along a 22-caliber
pistol which he keeps in his apartment. Appellant is 49 years old
and suffers from severe rheumatoid arthritis. The victims are
athletic young men of large build whose ages run from 19 to 21. As
appellant arrived in the driveway he fired his gun
once into a pile of dirt.
 
 Appellant argues that subdivision (f) exempts him from liability
both because the incident took place on property which constitutes
his place of business within the meaning of subdivision (f) and on
property which, while "public" within the definition of subdivision
(a), nevertheless was his private property within subdivision (f).
He argues: "... when the Section specifically creates an exception,
it obviously must refer to the acts prohibited ... and not to some
other acts such as storing or possessing [a loaded firearm] on a
shelf under a counter. Otherwise there would be no need in reason
and logic to create the exception and the legislature would be
presumed to have done a meaningless act."
 
 His argument continues: "... To be an offense in the first place
[under subdiv. (a)], the acts must occur in a 'public place or on a
public street' ...
 If it were not at least open to the public, no exemption would be
necessary for owners of private property, because there would be no
offense at all."

The court goes on to say that there is a distinction between "carrying" and "having" which has the effect of not letting one carry a loaded firearm in one's place of business or home where the area is quasi-public and sums up it's argument with:

 In the third place, such a reading harmonizes with the companion
firearm control statutes, Penal Code sections 12025 and 12026. As
previously noted, section 12025 makes it an offense to carry
concealed upon a person or in a vehicle (without having a license
so to do) a firearm capable of being concealed upon the person.
 Section 12026 provides an exception to section 12025. It states
that section 12025 shall not be construed to prohibit a citizen
over the age of 18 years (with certain exceptions) "from owning,
possessing, or keeping within his place of residence or place of
business" a firearm capable of being concealed upon the person. The
section also provides that no license to purchase, own, possess or
keep a firearm at one's place of residence or business shall be
required. In People v. Frost (1932) 125 Cal.App. Supp. 794 [12 P.2d
1096], this court considered the language of the exception now
embodied in section 12026. We there said "By no possible liberality
of construction could we hold that any of the acts mentioned in
this exception are denounced by the prohibitive parts of the
section." (125 Cal.App. Supp. at p. 796.)
 That language is a clear indication that "owning, possessing, or
keeping" a firearm at one's place of residence or business does not
equate with "carrying" such a weapon.
 
 Thus, appellant's argument that the language of subdivision (f)
must be coextensive with the liability created in subdivision (a)
is not well taken.

Note that the legislative change to PC § 12026 in the interim casts some doubt on Overturf.

People v. Perez

People v. Perez64 Cal. App. 3d 297 (1976) describes 'public place' for purposes of Penal Code 647 (drunk in public)

In the context of section 647, subdivision (f), California courts have
defined a public place variously as "[c]ommon to all or many; general; 
open to common use" (In re Zorn, 59 Cal. 2d 650, 652 [30 Cal.Rptr. 811,
381 P.2d 635] (barbershop is a public place); see In re Koehne, 59 Cal. 2d
646, 649 [30 Cal.Rptr. 809, 381 P.2d 633]); "a place where the public has
a right to go and to be ... [o]pen to the free and unrestricted use of the
public" (People v. Belanger, 243 Cal. App. 2d 654, 657 [52 Cal.Rptr. 660]
(inside a parked automobile on a public street is a public place)); and a
place where a "stranger ... was able to walk through the outside area of
[a] home to the front door without challenge." (People v. Olson, supra, 18
Cal. App. 3d at 598 (area outside private home, including lawn, driveway
or front porch is a public place).)

Similar consideration has applied to 'public place' for firearms possession and use, including concealed and open carry.

People v. Jimenez

In related analysis, the court decided a driveway was a public place for purposes of violating the law against selling drugs within 1000 feet of a school: People v. Jimenez, 39 Cal.Rptr.2d 12, 33 Cal.App.4th 54 (1995)

... from the evidence in the record the jury could not have come to any
conclusion other than that the driveway was a public area. The relevant 
evidence was undisputed. The driveway was 10 to 12 feet wide. Defendant and
Smith were standing approximately 20 feet up the driveway when the sale
took place. There was no gate, guard dog or other impediment to public
access. The officers testified they had an unobstructed view of the sale
from across the street.

People v. Yarbrough

In People v. Yarbrough (2008) 169 Cal App 4th 303 the California Appellate Court held that PC § 12025 prohibited carrying a loaded concealed firearm on publicly accessible private property where there was no indicia of permission from the property owner to carry.

People v. Strider

In People v. Strider (2009) 177 Cal.App.4th 1393 the California Appellate Court ruled that a front yard surrounded by a fence and gate was not a public place for the purposes of PC § 12031.

 3. Because the fenced yard was not a public place within the
meaning of section 12031, Strider’s suppression motion should have
been granted.

 It is undisputed that Deputy Bates detained Strider when Bates
entered the yard, followed Strider into the house, and ordered
Strider to stop. (See In re Manuel G., supra, 16 Cal.4th at p.
821; People v. Garry (2007) 156 Cal.App.4th 1100, 1106.) The
only suspected criminal activity suggested by the parties was
Strider‟s carrying of a loaded firearm in a public place in
violation of section 12031. Thus, the reasonableness of the
detention turns on whether the People established at the
suppression hearing that the fenced front yard was a public place
within the meaning of the statute. We conclude it was not.

As such, the current jurisprudence in California is that if the public can come unmolested or unchallenged into an area, you can not conceal or openly carry a loaded firearm in that area unless you have a specific and immediate need to defend life or property.