Legal Question in Civil Rights Law in California

I know it is legal to "open carry" a firearm (unloaded) in california,what i want to know is, is it legal to "open carry" with your clip or ammo in another pocket or elsewhere on your person?

Asked on 5/17/10, 2:26 pm

2 Answers from Attorneys

Anthony Roach Law Office of Anthony A. Roach

You cannot carry a loaded firearm in public in California. "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." (Pen. Code, sec. 12031 subd. (a)(1).)

A firearm is loaded when unfired ammunition is attached in any manner to the gun. "A firearm shall be deemed to be loaded for the purposes of this section 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; except that 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." (Pen. Code, sec. 12031 subd. (g).)

It is no defense to claim that you did not know the gun was loaded. (People v. Dillard (1984) 154 Cal.App.3d 261, 266.)

Even though the firearm is unloaded, you could be charged with "brandishing" if someone states that you display it to someone in rude, angry, or threatening manner. (Pen. Code, sec. 417.)

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Answered on 5/22/10, 7:27 pm

Terry A. Nelson Nelson & Lawless

Don't be quite so sure you 'know' the law. Mr. Roach's answer is accurate as stated, but neither that answer, nor the law, will prevent you from being stopped, questioned, detained, or even arrested by a zealous law enforcement officer, nor prevent panic stricken calls to 911 from 'frightened' citizens reporting a criminal on the streets with a gun [you]. With a loaded magazine also in your possession while open carrying, you are at best in a gray area of the definition of 'loaded'. There are code sections holding that ammunition cannot be attached 'in any manner' to a firearm in a vehicle. The definition of 'attached' is hazy. A magazine holder on the belt with a holster may be 'attached', whereas in a pocket may not be. Nobody said the law is sensible, logical or consistent. Don't depend upon your logical definition being the same as the officer's. Make sure your carry is really 'open', meaning absolutely no clothing or covering other than an identifiable holster.

There are 2nd Amendment supporting groups in California advocating testing and challenging the law and liberals' fears through open carry. They don't advocate also carrying loaded magazines. As long as you accept the risks, and fully comply with the law so as to provide a defense to any criminal charges brought against you, then you are somewhat 'safe' in open carry. I suggest you not open carry without companions / witnesses who could testify on your behalf if worse came to worse for you. With all that said, if you end up needing legal help, feel free to contact me. As you might surmise from my photo, I support the 2nd Amendment and help people who need it in this area.

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Answered on 5/24/10, 12:37 pm

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