Difference between revisions of "Unlicensed Concealed Carry"

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   a permit or license.
 
   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 but see [http://login.findlaw.com/scripts/callaw?dest=ca/calapp3d/168/168.html ''People v. Wooten''] 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."
+
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 ==

Revision as of 01:15, 19 October 2009

At Work

Penal Code § 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 signing statement 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 § 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 § 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:

 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 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.

Semi Public Places Restrictions

Carrying a loaded concealed firearm is prohibited in areas open to the public, even if they are on private property.

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 § 12031 (h) reads:

 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.

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. 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) __ 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.

 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 a loaded firearm in that area unless you have a specific and immediate need to defend life or property.