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Written by Kevin Thomason
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Saturday, 26 December 2009 22:24 |
12/23/2009
In September 2009, the CGF received an urgent call from a young man who was arrested by Los Angeles County Sherriff’s Department deputies in the Long Beach area for violation of Penal Code section 12025 (a) – i.e., carrying a concealed pistol, revolver, or other firearm capable of being concealed upon the person in his vehicle.
However, there were two major problems with this arrest:
First, the Department of Justice website states: Nonconcealable firearms (rifles and shotguns) are not generally covered within the provisions of California Penal Code section 12025 and therefore are not required to be transported in a locked container. (See http://www.ag.ca.gov/firearms/travel.php).
And, second, the firearms prohibited from being concealed according to Penal Code section 12025 are defined as handguns under California law:
As used in this title, the term "handgun" means any "pistol," "revolver," or "firearm capable of being concealed upon the person." (PC 12001(a)(2).) According to the police report, the 19 year-old Cal State University Long Beach college student, and two of his friends were in a Long Beach industrial area late at night performing experiments with legal compressed air devices.
When they were done for the night and leaving the area, they were pulled over by multiple Los Angeles Sheriff’s units, who ordered them out of the student’s pickup truck at gun point, cuffed them, and searched the truck. The deputies then told the student that they were responding to a “shots fired” complaint and asked him if he had a firearm in the vehicle.
He informed the LASD deputies that he had a shotgun in the cab, a Mossberg 500, which was unloaded and under the seat. He had no ammunition and informed the deputies as much. The deputies then asked him how many rounds he had fired through it that night, the student explained that caller must have heard the noise from the experiments, showed the deputy the legal device used in the experiments, and informed them that he and his friends were not firing the shotgun.
The bottom line is that the LASD took him to the station, with the shotgun, held him until morning, cited him for concealed carry with a court date in Compton and released him on his own recognizance. They kept the shotgun as “evidence.”
Upon contacting The Calguns Foundation, Inc. and explaining the situation, the CGF Board unanimously agreed to fund the student’s criminal defense and retained Jason Davis of Davis & Associates to represent him.
At the initial arraignment, Mr. Davis contacted the Deputy District Attorney and explained that Penal Code section 12025 does not apply to long guns (such as shotguns) . . . unless they are “short barreled.”
The Deputy District Attorney seized upon the fact that the language does not clearly eliminate application to shotguns.
And in addition, the District Attorney informed Mr. Davis that they would add another count of 12025 for possession of the “compressed air” device if Mr. Davis persisted in attempting to defend this case.
Mr. Davis not only persisted but informed the District Attorney’s office that they were not only wrong on the shotgun, but wrong on the “compressed air device” as well.
A “compressed air” device simply cannot be deemed a firearm under Penal Code section 12001, which requires a device to expel a projectile through an explosion or other form of combustion. Mr. Davis advised the District Attorney’s office to take another careful look at the charges and reconsider dismissing the complaint.
The arraignment was then postponed, and no additional counts were brought.
At the second arraignment date, Mr. Davis provided the Los Angeles District Attorney’s office with hundreds of pages of information in support of the common sense position that the terms “handgun,” “pistol, revolver, or other firearm capable of being concealed upon the person” simply do not include shotguns. Mr. Davis even included a copy of the entire “dangerous weapons law” with each and every occurrence of the terms “handgun,” “pistol,” “revolver,” and “other firearm capable of being concealed upon the person,” highlighted in yellow so as to demonstrate the absurdity of the position that a standard shotguns is the same as a “handgun,”
This crazy position would require shotguns to be placed on the list of handguns deemed not unsafe and require a handgun safety certificate for the purchase of shotguns.
At this point the matter was escalated to a higher level Deputy District Attorney, presumably one who is not pre-programmed to think all firearms and the persons possessing them are bad. Unfortunately, this was not the case. The first words out of the new Deputy District Attorney’s mouth were, “Do you want your client to be prosecuted with a felony?”
Clearly, this comment was a threat aimed at Mr. Davis’ challenge to the DA’s position. At this point, Mr. Davis continued to challenge the merits of their case and explained the documents that he provided to them. The arraignment was continued again to allow the Deputy District Attorney to digest the information provided.
Last Friday, at the third arraignment date, the Deputy District Attorney took the position that the law is not clear and may well include long guns – but stated that they could not proceed on the facts.
At that time, Mr. Davis made his motion to the court to dismiss the Complaint prior to arraignment and the Court granted that motion. Case dismissed!
Now Mr. Davis and the client are working on getting his firearm returned. CGF will keep you updated as to those results!
-Kevin.
Click here to donate to CGF:
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-Ben Cannon, Treasurer, CGF. |
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Written by Kevin Thomason
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Monday, 23 November 2009 11:36 |
The Calguns Foundation filed and Amicus Brief in support of Otis McDonald et al. in McDonald v. Chicago. Our brief argues that the two most prominent anti-incorporationist scholars of the late 20th century were wildly incorrect about the meaning of the Privileges or Immunities clause in Section 1 of the Fourteenth Amendment and that their positions have been thoroughly discredited by superior modern legal scholarship and thus the Second Amendment is clearly incorporated by Section 1 of the Fourteenth Amendment.
Counsel to CGF on this Amicus was Erik Jaffe, a very well respected Supreme Court Appellate counsel and a former Clerk for Justice Thomas. For an example of his work, here is his Amicus from Heller filed on behalf of The Institute for Justice.
As we often do, we want to remind everyone that freedom is not free. Making the Second Amendment applicable to the State of California is serious and expensive business. Please make a donation to The Calguns Foundation so we can continue our aggressive legal strategy after McDonald is decided.
Donate via Paypal:
or Gunpal:
or send a check, online banking payment, or money order to:
Calguns Foundation
3200 Bridge Parkway Suite 202C
Redwood City, CA 94065
Oral arguments in McDonald are in February with a decision likely at the end of June 2010.
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Last Updated on Monday, 23 November 2009 18:17 |
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