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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
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Legality of spouse transporting pistol registered to "other half."
What are the legal ramifications of the following scenario? Are there any legal pitfalls to be aware of?
Scenario: Say I put a locking container in the car my wife drives. Car is owned by/titled to both of us. Inside the container is an unloaded handgun with loaded magazines. Wife does NOT have a HSC and pistol is registered in my name not hers. Would there be any issues with this? It's my car. It's my gun, but I'm not there. What if she had to use it in a self defense scenario? What are the legal issues?
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"On bended knee is no way to be free." - Eddie Vedder, "Guaranteed" "Let your gun therefore be the constant companion of your walks." -Thomas Jefferson, in a letter to his nephew Peter Carr dated August 19, 1785 |
#2
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no issues.....
She has permission to take it one presumes..... and she is transporting purusoant to 12026.1 and .2.... now... if she was illegally carrying it loaded without your permission....well....now...that would be a presumptive felony....which would be unfortunate if she is caught... many kern co. ccw holders share guns on their permits.... the wife's main carry gun is a XD 45 tactical compact....not on the list don't you know.. so I had to register it....still reg. to me... but on her permit.... any other questions...?
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Greebo, as a matter of feline pride, would attempt to fight or rape absolutely anything, up to and including a four-horse logging wagon. Ferocious dogs would whine and hide under the stairs when Greebo sauntered down the street. Foxes Kept away from the village. Wolves made a detour. Terry Pratchett |
#3
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IMHO there's no issue.
My recent wife routinely transports my firearms. HSC is only needed to purchase the handgun. Never heard of any other "use" for it. PS Unfortunately, half of each gun I used to own belonged to the wife...as I learned the hard way during my divorce. |
#4
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Since she is not the registered owner of the gun, and she has ammo for the gun with her, a 12025 violation can be charged as a felony instead of just a misdemeanor:
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#5
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Thats only if she is carrying concealed. If it's locked and unloaded then she should be fine right?
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#6
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Grizzlyguy, illegal concealed carry won't be an issue. We're talking legally transported, not stashed under the seat.
But that does bring up a followup question. What if it's being open carried (unloaded on the seat next to her, magazine also in the open next to pistol)? Outside of of the obvious pitfalls of school GFSZ's, would that still be a-ok?
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"On bended knee is no way to be free." - Eddie Vedder, "Guaranteed" "Let your gun therefore be the constant companion of your walks." -Thomas Jefferson, in a letter to his nephew Peter Carr dated August 19, 1785 |
#8
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Technically speaking this could be considered a violation of 12801(b)(2):
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That said, I have a lot of trouble imagining this is being enforced. Also, I suppose, a creative lawyer could argue that since California is a community property state, she owns half of it, and so it's not a "loan". In which case I guess the dealer breaks the law any time he delivers a handgun to a person whose spouse doesn't have an HSC. As far as it not being registered to her - that's perfectly fine, there's no issue there as long as it isn't considered loaded or concealed. If you really want to dot your Is and cross your Ts in this situation, get her an HSC. Or, if you get arrested, please call CGF. I'd love to hear the other side argue, "Sure, Your Honor, she owns half of it, but it's a misdemeanor if she picks it up."
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Brett Thomas - @the_quark on Twitter - Founding CGF Director and Treasurer; NRA Life Member; Ex-CRPA Director and Life Member; SAF Life Member; Peña Plaintiff |
#9
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Missing something? It's locked in a proper container and unloaded. Absent a suspected crime w/ definable probable cause and/or search warrant, no officer has any right to be looking in the container and anyone's wife should be counseled to say what most of us would say upon questioning: "I do not consent to a search". Even if the container is plastered with stickers that announce a gun is contained within, that still doesn't give an officer the right to search the container provided it is properly locked and not in a glove box or center console (although I suspect some officers would gladly violate your 2nd and 4th Ammendment rights and search such a box w/o permission).
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#10
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By the way, even stupider: I just got my HSC for the first time - it's been a long time since I bought a handgun. Prior to me getting that, imagine if Gene and I both went to the range with identical Sig P226s. He says, "Hey, I think mine's pulling to the left a bit, can you shoot it and confirm?" He hands me the identical pistol to the one I was just legally shooting. He just committed a misdemeanor under 12081(b)(2).
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Brett Thomas - @the_quark on Twitter - Founding CGF Director and Treasurer; NRA Life Member; Ex-CRPA Director and Life Member; SAF Life Member; Peña Plaintiff |
#11
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Under California Penal Code 12031(e): Quote:
Yes, this is a completely bogus violation of the 4th Amendment, but that's the state of the law here, right now. If you don't want to be the test case, you should never assume that a police officer won't have the right to search your vehicle if he thinks you have a firearm.
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Brett Thomas - @the_quark on Twitter - Founding CGF Director and Treasurer; NRA Life Member; Ex-CRPA Director and Life Member; SAF Life Member; Peña Plaintiff |
#12
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#13
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If we don't take it out other ways, first...
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Brett Thomas - @the_quark on Twitter - Founding CGF Director and Treasurer; NRA Life Member; Ex-CRPA Director and Life Member; SAF Life Member; Peña Plaintiff |
#14
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So, just a kind of silly question popped up in my mind. The 'what if' category.
What if.....my HSC had expired, and I failed to renew it? Any legal implications regarding transporting my handguns or shooting them? Can I still own them as registered owner, but without valid HSC? (Nay, they wouldn't do this to us, would they)? Scenario: Wife drives, I'm a passenger, unloaded and properly locked handgun in the trunk. Trafic stop. Wife makes a mistake and says: "yes officer, there's a gun in the trunk". Are we both breaking the law? (Just a scenario. I renewed my HSC last February). Last edited by Phouty; 10-06-2010 at 9:24 PM.. |
#15
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__________________ "Knowledge is power... For REAL!" - Jack Austin |
#16
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Again, I'm sure this isn't enforced, and most officers probably don't even know it's a crime. Further, since you have no obligation to carry your HSC with you, and the officer has no way to "radio in" a check, how exactly am I supposed to prove I'm legal? It's clearly poorly thought out, unenforceable, unconstitutional drivel. But, lending a pistol to someone without an HSC is technically against the law.
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Brett Thomas - @the_quark on Twitter - Founding CGF Director and Treasurer; NRA Life Member; Ex-CRPA Director and Life Member; SAF Life Member; Peña Plaintiff |
#18
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Does one need an HSC to receive a handgun back from a person to whom it was loaned?
ETA: found the answer, not required. 12807(a)The following persons, properly identified, are exempted from the handgun safety certificate requirement in subdivision (b) of Section 12801: ... (7) A person to whom a handgun is being returned, where the person receiving the firearm is the owner of the firearm.
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Coyote Point Armory 341 Beach Road Burlingame CA 94010 650-315-2210 http://CoyotePointArmory.com Last edited by dantodd; 10-06-2010 at 11:22 PM.. |
#19
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Jack Do you want an AOW or C&R SBS/SBR in CA? No posts of mine are to be construed as legal advice, which can only be given by a lawyer. |
#20
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How does the HSC certificate requirement apply to minors? We have young folks all the time at cowboy shoots. Technically they can't own a firearm, much less a hand gun since they are way under age, so the parent "loans" them the guns they need for the match (in many cases these guns were purchased solely for the kids and are their guns, but kept in the parents safe). Per rules at almost every range I know of, the minor child is within arms reach of the parent when carrying a firearm - but technically you could say the parent (or even another adult present) "loaned" the handgun to the child, who obviously lacks a HSC.
(the big irony here is the children in this scenario are usually better schooled on proper gun safety and handling than most adults) |
#21
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Yes, that is legally A-OK outside of school zones. The chance of LEO and/or DA drama would be higher, however. |
#22
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If you haven't seen it with your own eyes, or heard it with your own ears, don't make it up with your small mind, or spread it with your big mouth. |
#23
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Can I loan a handgun to an adult who does not have a Handgun Safety Certificate? |
#24
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Now you guys are getting me concerned, I'm deployed, I bought the gun for the wife since it's easier for me in the military, and she doesn't have an HSC. Is she technically breaking the law when she goes to the range since my deployment is longer then the 1 month allowed for a loan?
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"Everything I ever learned about leadership, I learned from a Chief Petty Officer." - John McCain "Use your hammer, not your mouth, jackass!" - Mike Ditka There has never been a shortage of people eager to draw up blueprints for running other people's lives. - Thomas Sowell Quote:
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#25
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You bring up a number of points that are very interesting and I have made arguments on and feel that different sections of the law contradict each other. For example, we are a community property state, but there is no way for one of the spouses to have their own property registered to them. I was looking into this recently because I am getting married in a few months. The 40 to 45 weapons that I currently own will not be community property unless I specifically contribute them. Anything owned before the marriage, including cash, remains separate property unless specifically contributed. I believe that income off of separate property is community property though, meaning if I were to sell one of my weapons, the funds received would be separate property. However other items obtained with separate property I believe is separate property, so if I were to trade a weapon for a weapon it would still be separate property. Aside from that start up complication that I mention above, I feel that it is a violation of our rights to have restrictions on our own property just because there is no way for both of us to have it registered to us. I have the OP’s situation exactly being that I pretty much always have a locked weapon in my truck. It is registered to me and carried legally. Even after we get married in a few months, it will still be my separate property. Also, I do not see her getting her HSC. Maybe I should say that I contribute the weapon I normally carry to the community property so that it could be said that it is jointly owned, but then if there is no paperwork on that and she has no HSC would I then be breaking the law? This is one area of the law that does not make sense and I think is problematic.
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"Those who would give up essential Liberty, to purchase a little temporary Safety, deserve neither Liberty nor Safety." ~Ben Franklin 159 |
#26
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Sounds to me like we need to do away with the HSC altogether, then everything is fine so long as she is not a prohibited person.
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-POLICESTATE, In the name of the State, and of the School, and of the Infallible Science If you want a picture of the future, imagine a boot stamping on a human face — forever. Government Official Lies . F r e e d o m . D i e s . |
#27
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#28
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So since the firearm is not in wifes name, is it possible to have her added somehow?
I do not believe that two people can be on the DROS for a hand guns but can she be added to it somehow after the fact? |
#29
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That would never fly with a car, a house, a boat…
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"Those who would give up essential Liberty, to purchase a little temporary Safety, deserve neither Liberty nor Safety." ~Ben Franklin 159 |
#30
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And just to let you know, it's perfectly legal for a minor to own a long gun in California. There is no minimum age to own a long gun. The only way a minor can gain ownership of a long gun in this State is if it is given to them by their parent or by their grandparent (with permission from the parent).
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__________________ "Knowledge is power... For REAL!" - Jack Austin |
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