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Defining loaded in California
Loaded in California
"Loaded" generally means ammunition is in the chamber or magazine well of a weapon.
Ammunition in magazines, clips or speed-loaders is legal.
Ammunition in the same case with the weapon is legal.
Contents [hide]
1 "Loaded" from the Penal Code
2 People v. Clark
2.1 Recent Law Enforcement Training Materials
3 Ammunition or Loaded Magazines in locked containers
4 "Prohibited Area"
5 Rare Exceptions to Firearm Not Loaded
6 A "Public Place"
6.1 Historical cases
6.2 Recent cases
"Loaded" from the Penal Code
Loaded Firearm is defined in Penal Code 16840 (old 12031):
(b) As used in Chapter 2 (commencing with Section 25100) of
Division 4 of Title 4, in subparagraph (A) of paragraph (6) of
subdivision (c) of Section 25400, and in Sections 25850 to
26055, inclusive,
(1) A firearm shall be deemed to be "loaded" when there is an
unexpended cartridge or shell, consisting of a case that holds a
charge of powder and a bullet or shot, in, or attached in any
manner to, the firearm, including, but not limited to, in the
firing chamber, magazine, or clip thereof attached to the
firearm.
(2) Notwithstanding paragraph (1), a muzzle-loader firearm
shall be deemed to be loaded when it is capped or primed and
has a powder charge and ball or shot in the barrel or cylinder.
People v. Clark
People v. Clark(1996) 45 Cal.App.4th 1147 , 53 Cal.Rptr.2d 99 specifically limited 12031(g) by holding that in order to be “loaded” a firearm must have ammunition “placed into a position from which it can be fired”. The case rested on the fact that a shotgun is not loaded when shotgun shells were attached to a shotgun inside a buttstock shell carrier.
The key paragraphs of the decision:
The term "loaded" has a commonly understood meaning: "to put a load
or charge in (a device or piece of equipment) a gun" or "to put a
load on or in a carrier, device, or container; esp: to insert the
charge or cartridge into the chamber of a firearm." (Webster's New
Collegiate Dict. (1976) p. 674.) Under the commonly understood
meaning of the term "loaded," a firearm is "loaded" when a shell
or cartridge has been placed into a position from which it can be
fired; the shotgun is not "loaded" if the shell or cartridge is
stored elsewhere and not yet placed in a firing position. The
shells here were placed in a separate storage compartment of the
shotgun and were not yet "loaded" as the term is commonly understood.
There is nothing in Health and Safety Code section 11370.1 which
indicates the Legislature did not intend to use the term "loaded" in
its commonly understood meaning.
We note Penal Code section 12031 states it is defining the term
"loaded" "for the purposes of this section" (Pen. Code, § 12031,
subd. (g)); it does not state it is applicable to a Health and Safety
Code offense nor does Health and Safety Code section 11370.1 refer to
the Penal Code definition.
Second, even if we were to accept the Attorney General's assertion
that the definition of "loaded" contained in Penal Code section
12031, subdivision (g) applies to Health and Safety Code section
11370.1, subdivision (a), we would still conclude the shotgun here
was not loaded.
…
[2] A statute "must be given a reasonable and commonsense
interpretation consistent with the apparent purpose and intention of
the Legislature, practical rather than technical in nature, and
which, when applied, will result in wise policy rather than mischief
or absurdity. [Citations.]" (Beaty v. Imperial Irrigation Dist.
(1986) 186 Cal.App.3d 897, 902 [231 Cal.Rptr. 128].) "The words must
be construed in context in light of the nature and obvious purpose of
the statute where they appear. [Citation.]" (Decker v. City of
Imperial Beach (1989) 209 Cal.App.3d 349, 354 [257 Cal.Rptr. 356];
Lakin v. Watkins Associated Industries(1993) 6 Cal.4th 644, 659 [25
Cal.Rptr.2d 109, 863 P.2d 179].)
…
Given the examples are all consistent with an intent to use the
common meaning of "loaded," it follows the Legislature's use of
the phrase "attached in any manner" to the firearm was intended to
encompass a situation where a shell or cartridge might be
attached to a firearm or "loaded" for firing by some
unconventional method. The phrase does not demonstrate a clear
Legislative intent to deem a firearm loaded no matter how a shell is
attached to a firearm; in particular, it does not indicate a clear
intent to deem a gun "loaded" when the ammunition, as here, is in a
storage compartment which is not equivalent to either a magazine or
clip and from which the ammunition cannot be fired. Our conclusion
that the Legislature intended "loaded" as used in Penal Code section
12031 to reflect the common definition is supported by the court in
People v. Heffner (1977) 70 Cal.App.3d 643, 650 [139 Cal.Rptr. 45],
which reached the same conclusion …
The holding of People v. Clark applies to all types of firearms, not just shotguns.
There remains a lack of clarity whether a detachable magazine with rounds in the magazine inserted into the magazine well of a firearm is loaded as this may constitute a loaded firearm However, People v. Clark makes it very clear that loaded magazines in the same case or on a person's belt but not in the magazine well do not constitute a loaded firearm. Loaded magazines in a buttstock like the SU-16CA but an empty chamber and magazine well would not constitute a loaded firearm.
There are uncommon exceptions in California law that state that a loaded magazine in the same area as an unloaded firearm constitutes a loaded firearm. Those exceptions are outlined below. Those alternate definitions also help prove the rule that the definition of loaded firearm requires rounds in the chamber or rounds in a magazine in a firing position directly attached to the action.
Recent Law Enforcement Training Materials
Some agencies are releasing materials their officers regarding Unloaded Open Carry which address the concept of loaded.
San Diego Police Department
PC § 12031(g) – Statutory Definition of “Loaded”
A firearm is deemed to be loaded when there is an unexpended
shell ... in, or attached in any manner to, the firearm. PC §
12031(g). Legislative history: The Legislature’s use of the phrase
“attached in any manner” to the firearm was intended to encompass
a situation where a shell or cartridge might be attached to a
firearm or “loaded” for firing by some unconventional method.
The phrase does not demonstrate a clear Legislative intent to deem
a firearm loaded no matter how a shell is attached to a firearm,
even when shells are placed in a separate storage compartment at
the rear of a shotgun’s stock. People v. Clark, 45 Cal. App. 4th
1147 (1996).
Case Law Definition of “Loaded” = Ready for Firing
For purposes of PC § 12031, a firearm is loaded when a shell or
cartridge has been placed into a position from which it can be
fired. A firearm is not loaded if the shell or cartridge is stored
elsewhere and not yet placed in a firing position. People v.
Clark, 45 Cal. App. 4th 1147, 1153 (1996).
Los Angeles County Sheriff's Office
When is a firearm considered "Loaded"?
The short answer is that it depends on the circumstances.
Ordinarily, a firearm is loaded if the ammunition is placed into
the weapon in a manner that it could be fired. If the suspect is
being charged with carrying the firearm with the intent to commit
a felony (12023 PC), then a special definition of "loaded"
applies. The firearm is considered "loaded" if the weapon, and
ammunition capable of being fired in the weapon, are in the
immediate possession of the subject (12001(j) PC). Penal Code §
171e provides a similar definition of "loaded" for firearms
carried in the state capitol or offices (171c PC), and in the
residences of designated elected officials (171d PC). Deputies
should be familiar with this special definition, and be careful
not to apply it to circumstances not involving a violation of
sections 171c, 171d, or 12023.
The majority of offenses involving the carrying of a loaded weapon
fall under 12031 PC. Section 12031(g) defines a weapon as being
loaded when the ammunition is in, or attached to, the firearm. It
specifically provides that a weapon is loaded if there is
ammunition in the firing chamber, magazine or clip. The California
Court of Appeal considered the question of when a weapon is loaded
in the case of People v. Harvey Lee Clark (45 Cal App. 4th 1147).
The defendant had a single-shot shotgun which had no shell in the
chamber. It had a buttstock shell holder which held live rounds.
The court clarified the "attached to" language of 12031(g) holding
that the weapon was unloaded since the rounds could not be fired
from the buttstock holder.
Similar documents have been issued by the Orange County Sheriff's Office, CPOA, Los Angeles District Attorney's Office and Sunnyvale.
Ammunition or Loaded Magazines in locked containers
Ammunition may be carried in the same container as the gun – loose ammunition or ammunition in ammo boxes does not make a gun loaded, because the ammunition is NOT “placed into a position from which it can be fired”.
You may transport loaded magazines and speed loaders, so long as they are not inserted into the magazine well or cylinder of the firearm. That does not make a gun loaded, because the ammunition carried that way is NOT “placed into a position from which it can be fired”.
A loaded magazine is not the same as a loaded weapon, and possession of a weapon and a loaded magazine for that weapon does not, necessarily, mean you have a loaded weapon.
Anyone who asserts something contrary to the above 3 points is simply wrong. That does not mean you cannot be arrested by uninformed or badly trained law enforcement officer, or charged with the crime of carrying a loaded weapon by an uninformed or politically motivated prosecutor. It does mean that, if it goes to court and you have good representation, the prosecution should lose on the law. There are certain exceptions to this outlined below.
Your comfort level may lead you to do more than the law requires. Please also see Transport Restriction for Handguns for some important additional notes on transporting handguns in California.
"Prohibited Area"
The definition of "prohibited area" generally turns on whether the municipal or county code in that area prohibits the discharge of a firearm. Additional, Penal Code 374c makes shooting from any public road illegal.
Rare Exceptions to Firearm Not Loaded
There are rare exceptions to the rule of "ammunition in firing position" that do define a firearm as loaded when other factors are present.
16840(a) (old 12001(j)) only applies to 25800 (old 12023) (carry with intent to commit a felony).
16840(a) As used in Section 25800, a firearm shall be deemed to
be "loaded" whenever both the firearm and the unexpended
ammunition capable of being discharged from the firearm are in
the immediate possession of the same person.
25800 (a) Every person who carries a loaded firearm with the
intent to commit a felony is guilty of armed criminal action.
171e only applies inside the State Capitol, legislative offices, office of the Governor, Governor’s residence, etc.
171c. Any person, except…, or a person holding a valid license to
carry the firearm pursuant to Article 3 (commencing with Section 12050)
of Chapter 1 of Title 2 of Part 4, who brings a loaded firearm into,
or possesses a loaded firearm within, the State Capitol, any
legislative office, any office of the Governor or other
constitutional officer, or any hearing room in which any committee
of the Senate or Assembly is conducting a hearing, or upon the grounds
of the State Capitol, which is bounded by 10th, L, 15th, and
N Streets in the City of Sacramento,
171d. Any person, … shall be punished by imprisonment in a county
jail for not more than one year, by fine of not more than one thousand
dollars ($1,000), or by both the fine and imprisonment, or by
imprisonment in the state prison, if he or she does any of the following:
(a) Brings a loaded firearm into, or possesses a loaded firearm
within, the Governor's Mansion, or any other residence of the Governor,
the residence of any other constitutional officer, or the residence of
any Member of the Legislature.
(b) Brings a loaded firearm upon, or possesses a loaded firearm
upon, the grounds of the Governor's Mansion or any other residence of
the Governor, the residence of any other constitutional officer, or
the residence of any Member of the Legislature.
171e. A firearm shall be deemed loaded for the purposes of
Sections 171c and 171d whenever both the firearm and unexpended
ammunition capable of being discharged from such firearm are in the
immediate possession of the same person.
Note that these definitions say nothing about magazines, only firearm and ammunition.
The Fish and Game Code has a different definition:
2006. It is unlawful to possess a loaded rifle or shotgun in any
vehicle or conveyance or its attachments which is standing on or along
or is being driven on or along any public highway or other way open to
the public.
A rifle or shotgun shall be deemed to be loaded for the purposes
of this section when there is an unexpended cartridge or shell
in the firing chamber but not when the only cartridges or shells
are in the magazine.
There is a sentence enhancement for carrying concealed in PC 25400(c)(6) (old 12025(b)(6))
(c) Carrying a concealed firearm in violation of this
section is punishable as follows:
...
(6) If both of the following conditions are met, by
imprisonment in the state prison, or by imprisonment in a
county jail not to exceed one year, by a fine not to exceed
one thousand dollars ($1,000), or by both that fine and
imprisonment:
(A) The pistol, revolver, or other firearm capable of being
concealed upon the person is loaded, or both it and the
unexpended ammunition capable of being discharged from it are
in the immediate possession of the person or readily
accessible to that person.
(B) The person is not listed with the Department of Justice
pursuant to paragraph (1) of subdivision (c) of Section 11106
as the registered owner of that pistol, revolver, or other
firearm capable of being concealed upon the person.
So, if you either have a conventionally ‘loaded’ concealed weapon, or have the concealed weapon and ammunition for it, AND the weapon is not registered to you, you may get state prison instead of county jail.
There is a sentence enhancement for having a weapon and having armor-piercing ammunition:
12022.2. (a) Any person who, while armed with a firearm in the
commission or attempted commission of any felony, has in his or her
immediate possession ammunition for the firearm designed primarily
to penetrate metal or armor, shall upon conviction of that felony or
attempted felony, in addition and consecutive to the punishment
prescribed for the felony or attempted felony, be punished by an
additional term of 3, 4, or 10 years.
There is a sentence enhancement for those who commit defined street gang crimes and have both a weapon and a detachable magazine for it – whether or not there is ammunition and whether the weapon is loaded or unloaded (apparently in the 12031(g) sense):
12021.5. (a) Every person who carries a loaded or unloaded firearm
on his or her person, or in a vehicle, during the commission or
attempted commission of any street gang crimes described in subdivision
(a) or (b) of Section 186.22, shall, upon conviction of the felony
or attempted felony, be punished by an additional term of imprisonment
in the state prison for one, two, or three years in the court's
discretion. The court shall impose the middle term unless there are
circumstances in aggravation or mitigation. The court shall state the
reasons for its enhancement choice on the record at the time of sentence.
(b) Every person who carries a loaded or unloaded firearm together
with a detachable shotgun magazine, a detachable pistol magazine,
a detachable magazine, or a belt-feeding device on his or her
person, or in a vehicle, during the commission or attempted commission
of any street gang crimes described in subdivision (a) or (b) of
Section 186.22, shall, upon conviction of the felony or attempted
felony, be punished by an additional term of imprisonment in the state
prison for two, three, or four years in the court's discretion. The
court shall impose the middle term unless there are circumstances in
aggravation or mitigation. The court shall state the reasons for its
enhancement choice on the record at the time of sentence.
Health and Safety Code 11370 and 11550 refer to a loaded firearm, but do not define loaded (see People v Clark notes above).
Also possession of a firearm and the ammunition for it at a gun show is illegal, unless you are a law enforcement officer, guard, or vendor:
27730 (old 12071.4(g)).
No person at a gun show or event, other than security
personnel or sworn peace officers, shall possess at the same
time both a firearm and ammunition that is designed to be
fired in the firearm. Vendors having those items at the show
for sale or exhibition are exempt from this prohibition.
A "Public Place"
Penal Code 25850 (old 12031(a)) specifies that carrying a "loaded" firearm may be a crime if this occurs in a "public place".
(a) A person is guilty of carrying a loaded firearm when the
person carries a loaded firearm on the 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.
A "public street" is fairly clear. What is a "public place"?
Penal Code 25850 does not provide guidance. Nearby Penal Code section 25605(a) (old 12026) suggests certain areas are not public, for handguns:
(a) Section 25400 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 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 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, 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 Sections 25850 to 26055, inclusive.
Historical cases
Three California cases provide information on what courts see as 'public places' for purposes of 12031: People v. Green (1971) 15 Cal App 3d 766 (a hospital parking lot), People v. Vega (1971) 18 Cal App 3d 954 (a supermarket parking lot), and People v. Overturf (1976) 64 Cal App 3d Supp 1 (the driveway at an apartment complex). The locations in each case were private property, but places where the public ordinarily had access in order to do business.
Additionally, People v. Marotta (1981) 128 Cal App 3d Supp 1 suggests businesses, open to the public, are not necessarily 12031 'public places'; notable for the conclusion that a cab driver is actually in his/her place of business while in a cab, and thus meets the exemption for businesses in 12031(h), the court further writes
The principle of statutory construction that code provisions must be
"construed according to the fair import of their terms, with a view
to effect its [the code's] objects and to promote justice" (Pen.
Code, § 4), is also of no particular help. Although the general
purpose of the Weapons' Control Law is to control the threat to
public safety in the indiscriminate possession and carrying about of
concealed and loaded weapons, the express exception, to allow
business persons to protect their property, must also be given
effect. We cannot choose to give heed to one legislative purpose, so
as to achieve the laudable social end of stronger gun control, and
yet ignore the plain intent of a legislative purpose embodied in the
exceptions. Furthermore, the legislative purpose which allows
business people to possess weapons to protect their property is as
important to taxicab operators as it is to business persons in fixed
geographic locations. The possible danger to the public posed by cab
drivers with guns is no more grave than that posed by armed retail
store operators. We can perceive no sound or obvious reason which
would warrant our reading into this law a distinction which it
plainly does not now contain.
Recent cases
A recent case, People v. Strider (People v. Strider, 177 Cal. App. 4th 1393) begins to set some limitations. Strider's decision says
"A fenced front yard is not a public place for purposes of Penal Code
Sec. 12031’s prohibition on carrying a loaded firearm in a public
place; thus, officer who saw defendant with a firearm in such a yard
could not have reasonably suspected defendant unlawfully had a firearm
in a public place, and trial court erred in denying defendant’s
pretrial suppression motion."
For more discussion of the exceptions that allow unlicensed concealed carry see Unlicensed Concealed Carry. |
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