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California 2nd Amend. Political Discussion & Activism Discuss gun rights activism and 2A related political topics here. All advice given is NOT legal counsel.

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  #1  
Old 02-04-2009, 9:04 AM
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Cool CCW in front yard -No permit

http://www.calguns.net/calgunforum/s...=150836&page=2

I started veering off the course of the thread posted above and wanted to start a separate thread discussing whether or not it is legal to CCW Loaded in my own front yard. I don't have a fence in my front yard, which ends at the city sidewalk/street. And a nice little extra, I am surrounded on all sides by a school zone.
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Old 02-04-2009, 9:26 AM
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Just walk into the house when the po-po is in sight
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Old 02-04-2009, 9:54 AM
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In your scenario concealed should be ok per 12026 PC.

http://www.calguns.net/calgunforum/s...5&postcount=49

Loaded is most likely illegal per 12031 PC and People v. Overturf.

http://www.calguns.net/calgunforum/s...7&postcount=66

Also as I noted in the post above, if you're in "any public place or any public street" a peace officer has the right to check your firearm to see if it's loaded. They cannot do that in your home.
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Old 02-04-2009, 10:02 AM
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Originally Posted by texan_in_exile View Post
we used to have a saying when I lived in Texas: "Concealed is Concealed."
The saying nowadays is "If you got caught carrying a CONCEALED weapon, you have FAILed!!!!"

Good question, OP. I'd like to know too.
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Old 02-04-2009, 10:14 AM
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Originally Posted by 1911su16b870 View Post
Just walk into the house when the po-po is in sight
But, what's to say when you answer your front door, that you have removed the "physical barrier" between yourself and the public, and are therefore in violation? I see an opportunity for an activist DA to get really stupid......
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Old 02-04-2009, 10:32 AM
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In my view of the law, it says "residence", it doesn't say "inside the home". Residence includes the property surrounding your house. It's yours. It's private. It should not be a violation of either 12025 nor 12031.

Also get a copy of "How to Own a GUn & Stay Out of Jail" by John Machtinger. They're only about $15 and worth their weight in gold for examples.

The 2008 copy on pg 49 states "You may carry a handgun concealed on your person or in your vehicle when you are in your residence, in your place of business, or on your private property." it also references Penal Code 12031(h)

Now, will you be contacted by the cops if they see you holding your shotgun on the front porch? Undoubtedly. Will you be violating the law if its loaded? Not in my opinion.
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Old 02-04-2009, 10:36 AM
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Originally Posted by p7m8jg View Post
Now, will you be contacted by the cops if they see you holding your shotgun on the front porch? Undoubtedly. Will you be violating the law if its loaded? Not in my opinion.
Just politely inform the Policeman that as soon as he steps off the sidewalk onto your property he is trespassing. I'm sure he will respect your statements and just drive away!
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Old 02-04-2009, 11:00 AM
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Originally Posted by Omega13device View Post
In your scenario concealed should be ok per 12026 PC.

http://www.calguns.net/calgunforum/s...5&postcount=49

Loaded is most likely illegal per 12031 PC and People v. Overturf.

http://www.calguns.net/calgunforum/s...7&postcount=66

Also as I noted in the post above, if you're in "any public place or any public street" a peace officer has the right to check your firearm to see if it's loaded. They cannot do that in your home.
12026 is the key but I've heard it masterfully cited on CG by LIbrarian and others that your front yard is also a public place in that someone can freely enter your yard..therefore you are in violation of 12025 and 12031. Further discussion is usually along the lines of "what if I have a fence in front?" To which the answer is usually "if people can still access your front/side/back yard through or over fences, then it's public.." or something to that effect.

In short, and technically, I would think unless you have a gated environment AND no tresspassing signs posted (which make it illegal to enter your property), then you could carry loaded and concealed or open. But don't quote me on that.
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Old 02-04-2009, 11:01 AM
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Originally Posted by sfpcservice View Post
But, what's to say when you answer your front door, that you have removed the "physical barrier" between yourself and the public, and are therefore in violation? I see an opportunity for an activist DA to get really stupid......
Secure the firearm so that you are not in violation. Then answer the door, step outside, closing the door behind your, for your consensual contact.
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Old 02-04-2009, 3:37 PM
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My "Private Property" is NOT "Public Property". If you're invited you are welcome. If you enter without permission, excluding DWP & Gas Co. employees they have permission, you are TRESSPASSING.

Apartments are the only places where there are "common areas". Condo's and Townhouse "common area" is "Private Property" as it is a residence for owners/renters and guests, all who would have permission to enter, most I know have an entry gate and gated parking.

Police have NO RIGHT to enter unless there is a warrant or "Probable Cause".

Install a fence for your front yard with a gate and you'd have the added legal protection of a man made barrier that one would have to breach in some way to enter the "Private Property" as a TRESSPASSER.

I feel confident carrying in any manner on my property.

Last edited by glockman19; 02-04-2009 at 3:40 PM..
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Old 02-04-2009, 3:54 PM
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How 'bout putting a small sign by your front door that states:

"If you can read this, you are trespassing"
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Old 02-04-2009, 3:58 PM
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Rule of thumb. Where the meter reader goes, so goes the public.
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Old 02-04-2009, 4:09 PM
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Originally Posted by IGOTDIRT4U View Post
Rule of thumb. Where the meter reader goes, so goes the public.
So Wrong. They are NOT the public. They have your permission to enter your property for the sole reason to read the meter.

I had wireless devices installed that eliminate the need for entry. DWP/Gas Co. drive by...take a reading and never enter the gated property.
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Old 02-04-2009, 4:36 PM
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Originally Posted by glockman19 View Post
So Wrong. They are NOT the public. They have your permission to enter your property for the sole reason to read the meter.
Who lets the meter reader on their property? Also that is wrong. A fully enclosed yard is private. a locked gate is even better. My property is enclosed with a 6 foot fence with locked gates so i am good there. A driveway should be legal...
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Old 02-04-2009, 4:47 PM
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Originally Posted by tombinghamthegreat View Post
Who lets the meter reader on their property?
In our case, there is an easement on our deed that allows the meter reader onto the corner of our property where the meter is located to take their reading. Maybe you have a similar easement that you are unaware of, or maybe you don't?
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Old 02-04-2009, 4:53 PM
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Originally Posted by IGOTDIRT4U View Post
Rule of thumb. Where the meter reader goes, so goes the public.
At work the meters are inside the building. PG&E guy just saunters straight in like he owns the place and walks back to the meters. We all recognize the guy and don't think twice, but believe me "the entire shop" is not "public." I'd be interested to see what insurance companies call public and private.
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Old 02-04-2009, 4:56 PM
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Originally Posted by Ironchef View Post
12026 is the key but I've heard it masterfully cited on CG by LIbrarian and others that your front yard is also a public place in that someone can freely enter your yard..therefore you are in violation of 12025 and 12031. Further discussion is usually along the lines of "what if I have a fence in front?" To which the answer is usually "if people can still access your front/side/back yard through or over fences, then it's public.." or something to that effect.

In short, and technically, I would think unless you have a gated environment AND no tresspassing signs posted (which make it illegal to enter your property), then you could carry loaded and concealed or open. But don't quote me on that.
That's damned bunk, then, because if someone trips and falls on one of my sprinkler heads it's suddenly private and my homeowners insurance provider is going to get a workout. Basically whichever way SCREWS ME the most is the way public / private is interpreted?

I'm on my own property - not in the easement / public right of way - I'm carrying CONCEALED and will leave the rest for a court fight - because after all, it's CONCEALED and the only way it ever comes to the attention of law enforcement is after I've been assaulted ON MY OWN PROPERTY and I've successfully defended myself. So I'm not about to cower about minority legal concerns (no pun intended).
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Old 02-04-2009, 5:38 PM
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Quote:
Originally Posted by sfpcservice View Post
But, what's to say when you answer your front door, that you have removed the "physical barrier" between yourself and the public, and are therefore in violation? I see an opportunity for an activist DA to get really stupid......
Quote:
Originally Posted by Got Stuff? View Post
If your front yard is fenced in with a closed gate you might be ok.

If you venture out into your open front yard you will get busted. Just the same as if you're drinking on your porch, you can get arrested for drunk in public. Your entire property needs to be fenced. You can go a step further and post signs.


No 'pysical barrier' needed.

Quote:
Section 12025 does not apply to or affect any of the following:
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 prohibited from owning or possessing firearms pursuant to Penal Code sections 12021 or 12021.1 or section 8100 or 8101 of the Welfare and Institutions Code, may carry, either openly or concealed, anywhere within his or her place of business, or on private property owned or lawfully possessed by him or her any pistol, revolver, or other firearm capable of being concealed upon the person. A permit or license to purchase, own, possess, keep, or carry is not required under these circumstances. (Penal Code § 12026.)

Notice it does not say inside your dwelling, house, etc...
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Old 02-04-2009, 5:45 PM
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Originally Posted by Got Stuff? View Post
If your front yard is fenced in with a closed gate you might be ok.

If you venture out into your open front yard you will get busted. Just the same as if you're drinking on your porch, you can get arrested for drunk in public. Your entire property needs to be fenced. You can go a step further and post signs.
FUD

Quote:
Originally Posted by hawk1;
No 'pysical barrier' needed.


Quote:
Section 12025 does not apply to or affect any of the following:
• 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 prohibited from owning or possessing firearms pursuant to Penal Code sections 12021 or 12021.1 or section 8100 or 8101 of the Welfare and Institutions Code, may carry, either openly or concealed, anywhere within his or her place of business, or on private property owned or lawfully possessed by him or her any pistol, revolver, or other firearm capable of being concealed upon the person. A permit or license to purchase, own, possess, keep, or carry is not required under these circumstances. (Penal Code § 12026.)


Notice it does not say inside your dwelling, house, etc...
Thank you for clarifying for those who:

1) can't read.
2) don't use the SEARCH button.
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Old 02-04-2009, 5:57 PM
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The unfenced private property question was already answered in Overturf. Ignore it at your peril....
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Old 02-04-2009, 6:05 PM
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Originally Posted by Got Stuff? View Post
Maybe not. I have seen people arrested for drinking in public (their front yard), drunk in public (their front porch/garage), and being arrested for drunk in public after "stepping outside to talk with the officer".

However, this has only happened when the front yard being unfenced.

I'll research when I get a chance.
Drinking in public is not relevent as there are specific laws for alcohol. Believe me, you will not get arrested for holding a bottle of Tequila in your hands.

He asked about concealed carry on his own property. Not shooting his handgun at targets in the front yard.
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Old 02-04-2009, 6:19 PM
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Just remember that Glendale PD issue tickets for "drinking in public" if you are in your own BACK yard & can seen from the street....
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Old 02-04-2009, 7:54 PM
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Originally Posted by rayra View Post
I'm on my own property - not in the easement / public right of way - I'm carrying CONCEALED and will leave the rest for a court fight - because after all, it's CONCEALED and the only way it ever comes to the attention of law enforcement is after I've been assaulted ON MY OWN PROPERTY and I've successfully defended myself. So I'm not about to cower about minority legal concerns (no pun intended).
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Old 02-04-2009, 7:56 PM
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Originally Posted by Got Stuff? View Post
If you venture out into your open front yard you will get busted.
Thats why keeping it concealed is paramount.
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Old 02-04-2009, 8:27 PM
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Originally Posted by ZRX61 View Post
Just remember that Glendale PD issue tickets for "drinking in public" if you are in your own BACK yard & can seen from the street....
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Originally Posted by Got Stuff? View Post
I already got flamed for spreading FUD. It's futile. Class is over.
Class is back in.
Lets break this down to easy examples.

Can you understand the difference between drinking beer in the front yard versus just sitting all day next to a case of beer without opening it?

Now just imagine having your concealed weapon on your person versus shooting targets stapled to your tree.

Understand the difference?
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Old 02-04-2009, 10:33 PM
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Originally Posted by rayra View Post
I'm on my own property - not in the easement / public right of way - I'm carrying CONCEALED and will leave the rest for a court fight - because after all, it's CONCEALED and the only way it ever comes to the attention of law enforcement is after I've been assaulted ON MY OWN PROPERTY and I've successfully defended myself. So I'm not about to cower about minority legal concerns (no pun intended).
Some of you need to remember, the penal code treats CONCEALED separately from LOADED.

Yes you can carry legally concealed on your unfenced lawn (12026) but you cannot legally carry loaded (12031). If you don't believe me then reread Overturf. He was in the driveway of the apartment building he owned with a loaded handgun and was found guilty of violating 12031.
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Old 02-04-2009, 11:45 PM
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Originally Posted by hawk1 View Post
Class is back in.
Lets break this down to easy examples.

Can you understand the difference between drinking beer in the front yard versus just sitting all day next to a case of beer without opening it?

Now just imagine having your concealed weapon on your person versus shooting targets stapled to your tree.

Understand the difference?
Gawd - you must be a government school teacher.

How do your deficient examples compare private with private-open to-the-public?
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Old 02-05-2009, 12:53 AM
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Originally Posted by p7m8jg View Post
In my view of the law, it says "residence", it doesn't say "inside the home". Residence includes the property surrounding your house. It's yours. It's private. It should not be a violation of either 12025 nor 12031.

Also get a copy of "How to Own a GUn & Stay Out of Jail" by John Machtinger. They're only about $15 and worth their weight in gold for examples.

The 2008 copy on pg 49 states "You may carry a handgun concealed on your person or in your vehicle when you are in your residence, in your place of business, or on your private property." it also references Penal Code 12031(h)

Now, will you be contacted by the cops if they see you holding your shotgun on the front porch? Undoubtedly. Will you be violating the law if its loaded? Not in my opinion.
regretfully it also falls to the threatening/offensive display - some neighbor could feel you were directly threatening them, and then any 'display' could get you slapped. But if it is out of sight - they can't say they felt threatened by something they didn't ever see.
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Old 02-05-2009, 8:17 AM
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Gawd - you must be a government school teacher.

How do your deficient examples compare private with private-open to-the-public?
.
Nope, not a school teacher, gub'mint or otherwise.

It says on private property owned or lawfully possessed by him or her .

Your property is exactly that. It is not open to the public. You can allow the public to enter your property, but that does not prevent you from carrying a concealed weapon. Suppose you own a liquor store. It is your private property that is open to the public. You can carry legally there as well. Read the law once again, anywhere within his or her place of business.
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Old 02-05-2009, 8:29 AM
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Originally Posted by Omega13device View Post
Some of you need to remember, the penal code treats CONCEALED separately from LOADED.

Yes you can carry legally concealed on your unfenced lawn (12026) but you cannot legally carry loaded (12031). If you don't believe me then reread Overturf. He was in the driveway of the apartment building he owned with a loaded handgun and was found guilty of violating 12031.
Not true. Although I'm not sure what an "Overturf" is to read.

PC 12031
Quote:
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.
He must not have "owned" the apartment building, driveway, or where he was physically when arrested. That, or did not have permission from the owner(s). Just renting an individual apartment does not make him an owner.
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Old 02-05-2009, 9:17 AM
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He must not have "owned" the apartment building, driveway, or where he was physically when arrested.
Yes, he did. Read the case, and then come back and tell us we're wrong.

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Old 02-05-2009, 9:43 AM
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The problem is that 12031 and 12026 have similar language about public places. The findings about public places in Overturf would apply to CCW in a front yard when there's no fence to indicate no public access is allowed. Since the two sections of code do NOT have identical language and a pure 12025 case (person Unloaded CCW in a front yard...) probably hasn't gotten to the Cal Supreme Court, you'd be in a dark gray area. Mr. Overturf's case would have been even more on this point had he CCW'd before he'd done what he did... and subsequently gotten arrested, tried, and convicted.
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Old 02-05-2009, 9:50 AM
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Originally Posted by CSDGuy View Post
The findings about public places in Overturf would apply to CCW in a front yard when there's no fence to indicate no public access is allowed.
Mere presence of a fence is no protection. Overturf had a fenced property. "Psycological" delineation of "your turf" is not relevant.

The concept is that the public is physically prevented from entering. That means a fence with a locked gate, or a vegetative barrier like a hedge, and a locked gate.
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Old 02-05-2009, 9:52 AM
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I have heard learned members of this board and elsewhere claiming that Overturf might not stand if a similar case happened again. Whether this is true or not, I am not sufficiently knowledgable - and I would not want to be the test subject.

Certainly, Overturf doesn't make sense to me as a layman, and I suspect Heller might affect it after incorporation.
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Old 02-05-2009, 10:04 AM
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I think the issue with the Overturf case would be, whether he owned the land or not apartments have common areas that are not considered private. It is the same as having a party at your house, if the gate is open to the back yard with no security, the yard has become a public place.
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Old 02-05-2009, 10:05 AM
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Someone from the public who enters your yard, your porch, your backyard or your HOME is NOT breaking any law or trespassing..unless you've verbally told them to leave or you have plainly visible signage declaring there is no trespassing on your property.

If someone cannot get on your property or see you on your property (aka, front yard mowing the lawn), then you could LOC or conceal a loaded gun without any worries if I'm not mistaken. There's alot of fud in this thread..possibly some of mine though I doubt it. I'm taking my information from at least one good thread on this exact topic and your property is not your property in the way many of you think..in regards to CCW or LOCing.

As for overturf..isn't that the one with the guy at the apartment complex common area?
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Old 02-05-2009, 10:25 AM
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As for overturf..isn't that the one with the guy at the apartment complex common area?
Yes

It is also Los Angeles Superior Court and is not binding outside Los Angeles - although that would not necessarily stop another court reaching the same conclusion.
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Old 02-05-2009, 12:21 PM
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[1] "Carrying" and "having" are not synonymous. "Having" relates to an "act or state of possessing," Webster's New International Dictionary, Second Edition, page 1145, while "carrying" refers to the "act or instance of carrying" and the verb "carry" in relevant definition connotes "to convey, or transport ...;" and "to transfer from one place ... to another." (Id. at p. 412.)


Thus, before one may "carry" a weapon owned, possessed, or kept on the specified premises, there must be a reasonable belief that the person or property of the defendant or another is in immediate danger and that it is necessary to carry the weapon in order to preserve the endangered person or property.


It seems to me that you can’t “have” something physical without first “carrying” it. So wouldn't this ruling appear to make the act of “having” a firearm anywhere illegal since the “carry” part is the basis for the ruling unless of course you are in fear for your life or property?
Funny because that seems to be the reason the appellant was “carrying” the gun in the first place.
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Old 02-05-2009, 12:47 PM
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Surprised Overturf wasn't busted for "discharge of a firearm" rather than carrying.
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Old 02-05-2009, 1:09 PM
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Quote:
Originally Posted by gimebakmybulits View Post
[1] "Carrying" and "having" are not synonymous. "Having" relates to an "act or state of possessing," Webster's New International Dictionary, Second Edition, page 1145, while "carrying" refers to the "act or instance of carrying" and the verb "carry" in relevant definition connotes "to convey, or transport ...;" and "to transfer from one place ... to another." (Id. at p. 412.)


Thus, before one may "carry" a weapon owned, possessed, or kept on the specified premises, there must be a reasonable belief that the person or property of the defendant or another is in immediate danger and that it is necessary to carry the weapon in order to preserve the endangered person or property.


It seems to me that you can’t “have” something physical without first “carrying” it. So wouldn't this ruling appear to make the act of “having” a firearm anywhere illegal since the “carry” part is the basis for the ruling unless of course you are in fear for your life or property?
Funny because that seems to be the reason the appellant was “carrying” the gun in the first place.
Overturf is the reason PC 12026 was amended to this
Quote:
12026. (a) Section 12025 shall not apply to or affect any citizen of the United States or legalesident 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.
However, 12031(h) still says
Quote:
(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.
The Overturf decision asserts that the parking lot of that apartment complex was "property which, while "public" within the definition of subdivision (a)," apparently based on Overturf's own argument; the court does not explain why that parking lot on private property was 'public'.

Public place from in re Zorn, 59 Cal.2d 650
http://login.findlaw.com/scripts/cal...2d/59/650.html
Quote:
"public" has been defined as " 'Common to all or many; general; open to common use,' " and " 'Open to common, or general use, participation, enjoyment, etc.; as, a public place, tax, or meeting.' " (Gardner v. Vic Tanny Compton, Inc., 182 Cal.App.2d 506, 510 [4] [6 Cal.Rptr. 490, 87 A.L.R.2d 113]; In re Koehne, supra, at p. 649 [5]; cf. Darius v. Apostolos, 68 Colo. 323 [190 P. 510, 511 [2, 3], 10 A.L.R. 986].)
but see
People v. White(1991) 227 Cal.App.3d 886 , 278 Cal.Rptr. 48
Quote:
Whether a particular location is a "public place" depends upon the facts of the individual case. (People v. Belanger (1966) 243 Cal.App.2d 654, 657-659 [52 Cal.Rptr. 660] [defendant found intoxicated inside a private automobile parked along public street curb deemed arrested in a public place].) Appellant herein was located in his own front yard surrounded by a three-and-a-half- foot-high fence with a gate which was unlocked at the time. The gate was not standing open. Deputy Moore opened it. Appellant released three dogs into the yard, which from all appearances acted as an effective if unintentional deterrent to the arresting officer.fn. 2 This fenced yard cannot be characterized as a "public place," i.e., "common to all or many; general; open to common use." (In re Zorn, supra, 59 Cal.2d 650, 652.) In contrast to Olson, the fence, gate and dogs all provided challenge to public access. Appellant may have been found intoxicated in a place exposed to public [227 Cal.App.3d 893] view but that, in and of itself, is not a violation of section 647, subdivision (f). (In re Koehne, supra, 59 Cal.2d 646, 648- 649.)
"public place" is redefined all over the penal code. See the Jury Instructions, available here.
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