Vol. 26 No. 22- Public “Open Carry” — Alameda County District Attorney “Point Of View”

To:                 All Police Chiefs and Sheriffs

From:            Paul R. Coble, Esq.

Our purpose, indeed our sole raison d’etre as a law firm, is to provide the most accurate, timely legal counsel possible to our law enforcement clients, and to do so with the public safety mission of our clients ever at the forefront of our minds and hearts.

We understand and we empathize with the sense of incongruity experienced by our officers and deputies that this conduct is permitted under the law, and that the only action expressly permitted our officers and deputies by the Legislature is to check to see if the gun is loaded.

Indeed, the 21 years I spent as an officer with LAPD, working the streets in some of the most dangerous areas of the City, having been shot at on more than one occasion, gives me, personally, an even greater sense of concern on the part of the officers confronted by a person carrying a gun.

And we furthermore understand and embrace the notion that reasonable minds not only can, but do, differ on this important issue.

Nonetheless, we are taken aback by the “attack” lodged by the Alameda County District Attorney, in its recent “Point Of View” (“POV”) bulletin, upon our firm and our advice as expressed in our August 23, 2011, Client Alert bulletin, entitled “Open Carry Issue Arises Again.” It is thus that we feel compelled to respond to the points made in the DA’s bulletin.

“A California District Attorney”

The POV article works from the incorrect assumption that our Client Alert was in response to, and directed against, the Spring 2010 POV.1

First, the district attorney bulletin to which our Alert referred was not Alameda County; frankly, we’ve never seen the Spring 2010 POV article and didn’t know it existed until now.

Secondly, we purposefully did not identify the district attorney’s office to which we referred in our Alert, as we intended only to offer a counterpoint legal analysis, not to trigger an ad hominemexchange. That remains our purpose.

Thirdly, we noted in our August 2011 Alert that, while we disagreed with the opinion of that unnamed district attorney, our disagreement was respectful. We extend now that same courtesy by stating that we respectfully disagree with the understanding of the Alameda County District Attorney’s Office of both the law and of our Client Alert.

Officer Safety

The most disturbing element of the POV article is where the anonymous writer states “The firm also disagrees with our view that officers who detain a person for openly carrying a firearm may take reasonable officer-safety  precautions.” 2

Once again, we were not aware of, and therefore were not writing in response to, the Spring 2010 POV. We have no idea what views were expressed by this District Attorney in that earlier POV article.

But, far more importantly, the implication that this firm does not care about officer safety, and has supposedly opined that officers cannot take “reasonable officer-safety precautions,” is not only wrong, it is offensive.

It ignores my law enforcement experience, as noted above, and the fact that, in addition to my experience, several of our associates have also served as law enforcement officers, both full time and/or as reserves.

We not only understand officer safety concerns, but have personal histories of stepping in harm’s way doing the job of a police officer.

To suggest, therefore, that this firm generally, and I personally, are unconcerned for officer safety is uncalled for and shows a complete lack of knowledge of who were are and what we do.

Furthermore, a reading of our Alerts on this issue, in both December 2008 and August 2011, fails to reveal a single word where officer safety is even discussed, let alone an expression of disagreement with anyone on the issue of officer safety. They were not intended to be operational bulletins.

The Alerts were responding to specific legal issues posed to our firm by officers and deputies around the state. Those issues involved the authority to detain persons for a period of time necessary to “run” the person and/or the firearm; and, whether a person engaged in “open carry” could be required to identify themselves to officers or deputies.

Of course officers approaching an armed individual, including an apparent “open carry” subject, must take reasonable officer-safety measures in effecting the examination to determine “. . . whether or not the firearm is loaded for the purpose of enforcing this section, …” 3 We never did, and we never would, say otherwise.

“Open Carry” is Lawful Conduct

Lawyers, police officers and sheriff’s deputies, and even district attorneys, don’t make the law; the Legislature makes the law.

In 1968, our state Legislature acted to amend Penal Code §12031 from its prior form, which permitted “open carry” of a loaded gun in public, to now allow “open carry” of an unloaded firearm in public. Thus, it is only a crime to carry a loaded firearm in a public place or in a vehicle, etc.

It is therefore lawful conduct for a person to engage in “open carry” of an unloaded firearm in public.

It is an established rule of statutory construction that if the Legislature wants a statute to say a particular thing, it knows how to do so .4 If the Legislature had intended that “open carry” of an unloaded firearm be treated as criminal conduct, it had the ability in 1968. Indeed, it still has the ability at any time to say so. However, the Legislature chose to only go so far as to make criminal the “open carry” of a loaded firearm.

Disagreement with that legislative decision is certainly understandable. But wishing it were otherwise, or finding it to be socially anomalous or incongruous, does not alter the fact that this is what the Legislature decided to do.

As such it is lawful conduct for a person, not otherwise legally disabled from possessing a firearm,5 to engage in “open carry.” The POV even makes the observation that, “It is true, of course, that virtually all of the people who are openly carrying firearms ‘for the purpose of demonstrating their Second Amendment right are law-abiding people.” 6

Therefore, and while there are issues of genuine safety concern in this area, we think that any analysis of these issues must be taken in the context that a person engaged in “open carry” of an unloaded firearm is not violating the law.

Authority to Detain,

The Fourth Amendment permits the Government to stop and briefly detain a suspect, on less than probable cause to believe that a crime has been or is being committed, and/or to investigate a reasonable suspicion that the suspect has engaged in or is about to engage in criminal activity.7

“Reasonable suspicion consists of ‘a sufficiently high probability that criminal conduct is occurring to make the intrusion on the individual’s privacy interest reasonable.'”8

The California Legislature provided, in subdivision (e) of §12031 that:
In order to determine whether or not a firearm is loaded for the purpose of
enforcing this section, peace officers are authorized to examine any firearm
carried by anyone on his or her person or in a vehicle while in any public place
or on any public street in an incorporated city or prohibited area of an
unincorporated territory. Refusal to allow a peace officer to inspect a firearm
pursuant to this section constitutes probable cause for arrest for violation of this
section.

If one were to split technical hairs, one might observe that the Legislature did not say that an officer could detain a person for the purpose of making this “examination” of the firearm. However, it can be reasonably concluded that officers may stop and detain an “open carry” subject for the purpose of effectuating the examination expressly allowed by §12031(e).

But once the firearm is examined as allowed by statute, and has been found to be unloaded, what is the basis for further detention; what more is there to make a reasonable officer entertain a reasonable suspicion that criminal activity is afoot?

Note also that the legislation makes no mention of requiring subjects to produce identification, nor to detain them long enough to “run” them.

The POV cites to the case of Schubert v. City of Springfield,9 for the proposition that an officer simply seeing a person in public with a gun constitutes reasonable suspicion sufficient to warrant a Terry detention. 10

In Schubert, an officer observed a local attorney walking toward the courthouse and observed a firearm beneath the attorney’s unbuttoned suit coat. The officer proceeded to make a Terrydetention of this individual on the grounds that this constituted reasonable suspicion of criminal activity. The officer cited and the Court appeared to credit — the fact that the attorney was walking toward a courthouse as evidence of criminal activity, and that in the officer’s experience most people in Springfield did not have permits to carry guns.

But note that, unlike California, Massachusetts does not have a statute permitting “open carry” of a firearm in public. To the contrary, and irrespective of whether the firearm carried by Attorney Schubert was loaded or unloaded, carrying it constituted a crime under Massachusetts law unless Schubert had a permit to carry a firearm in public.11

And, as noted by the officer in Schubert, most people in Springfield, Massachusetts, do not have gun permits, whereas, and as noted by the POV, most people engaged in “open carry” under California law are law abiding people.

We question therefore, how an officer can reach the conclusion that he or she has reasonable suspicion, meaning “‘a sufficiently high probability that criminal conduct is occurring,” as inYuknavich, supra — when observing a person doing something which, on its face, is permitted under California law.

Duration of Detention

The POV discusses some seeming distinction between “permissive” and “mandatory” statutes, apparently concluding that since §12031 “permits” inspection of the firearm that it therefore naturally follows that officers can extend the period of detention to check identity and run the person or the firearm through government data bases.12

Yet it is well established that “[t]he length and scope of detention must be justified by the circumstances authorizing its initiation.13 In a case where an officer had obtained sufficient information to issue a citation (the purpose of the original detention), a continued detention without probable cause to arrest for a crime, was held to be unreasonable. 14

It would seem to logically follow that if we can only detain for the period of time necessary to fulfill a lawful purpose, once that lawful purpose is fulfilled our authority to detain lapses, unless additional information exists which provides us with greater, new or different reasonable suspicion of criminal activity.

Of course, if officers or deputies are presented with specific and articulable facts which give them reasonable suspicion of a crime, they can detain long enough to investigate that suspicion. That an “open carry” subject could present an officer or deputy with reasonable suspicion to detain beyond the mere examination of the gun should be obvious. But this does not mean that the fact alone of “open carry” inherently provides that reasonable suspicion of criminal activity.

Obviously, there are circumstances which might well present an officer with reasonable suspicion to detain beyond the time necessary to examine the load status of the firearm. If the officers or deputies are presented with such facts, we all would want and expect them to follow those leads to a logical conclusion. And the law very clearly allows them to do so.

But, in our opinion, what the law does not allow officers to do is to detain an “open carry” subject beyond the time necessary to examine load status, unless there are additional facts presenting the officer or deputy with the reasonable suspicion required to justify further detention.

An officer can, of course, always ask the subject if he or she minds remaining for additional time, and if the subject voluntarily acquiesces then well and good. We simply question whether an “open carry” subject determined to have an unloaded firearm can be made to remain.

Checking Identity

The POV cites to People v. Rios15 for the proposition that where there is a right to detain there is also a right to obtain an individual’s identification.16

Even if true, the reasoning would be that the “right to detain” is a condition precedent to “a right to obtain an individual’s identification.” Note, therefore, that Rios involved an investigation of criminal activity, for which there was a “right to detain,” and not of lawful conduct such as “open carry.”

But it must also be observed that the Court in Rios, supra, cited to People v. Solomon17 and toYuen v. Municipal Court18 for this right to demand identification where there is a right to detain. Closer examination reveals that the Courts in Solomon and Yuen were dealing with the application of then-Penal Code §647(e), which required an individual lawfully detained to identify himself or herself.

That statute existed in California law when Solomon was decided in 1973 and Yuen was decided in 1975. That statute still, in. fact, existed when Rios was decided in 1983. And what bothSolomon and Yuen – as relied upon by Rios — held, was that §647(e) was a constitutional exercise of authority by the state Legislature.

But in 2007, the Legislature acted to remove former subdivision (e) of §647 in favor of the current (e), which now pertains to lodging in a structure or vehicle.

Thus, and unlike in Hiibel v. Nevada19 relied upon in the POV,20 California no longer has a statute which requires lawfully detained persons to identify themselves to the police.

Of course, if the “open carry” is observed in. the course of stopping someone for a Vehicle Code offense, the requirement of Vehicle Code § 40302(a) for presentation by the traffic violator of a drivers license or other satisfactory form of identification would still apply.

But a person walking down the street is not required to present identification, and with the removal of the former subdivision (e) from Penal Code §647, it is at best questionable whether a person stopped by the police has to identify themselves. This is particularly so, we think, where the person is stopped for facially lawful conduct as in “open carry” and the firearm is determined to be unloaded.

An officer can, of course, ask for subjects to identify themselves, either verbally or by presenting identifying documents. And if the person voluntarily acquiesces, then all is well and good.

We simply question whether a person can be forced by the threat of further detention or by arrest to be identified.

Checking Firearm Serial Number

The POV states that we said officers “must not look at the gun’s serial number as this would constitute an unlawful search.21

Nowhere in our Alert did we state that looking at a serial number in plain view would constitute an unlawful search. That was not said, nor do we believe that such a meaning could reasonably be taken from that Alert.

We addressed in that Alert what we felt was inappropriate reliance by that other district attorney on the holding in Arizona v. Hicks22 regarding the “plain view” doctrine. We then stated that if an officer saw the serial number in plain view while examining the load status of the firearm, and read it aloud to a fellow officer, it was questionable whether there would exist cause to continue the detention for the period of time necessary to run the serial number through data bases.

Our concern was, therefore, and as stated throughout, for the period of detention and not for the legality of an officer casting his or her eyes upon a weapon serial number when that number was otherwise lawfully in view.

We simply question the authority for an officer to search into hidden places for the serial number (beneath a pistol grip or gun stock, etc.) without the subject’s consent, and/or to make the person remain while the officer checks the serial number through data bases.

Conclusion

“Open carry” is an important issue of legitimate concern to us all. How officers and deputies respond to “open carry” situations deserves careful consideration of and training in how to do so in a manner consonant with, first and foremost, the safety of our officers and deputies; but also with sensible management of liability exposure.

Our firm has been actively involved in the development of proposed legislation to address this growing concern. It is also possible for the state legislature to enact a law which would require one who is openly carrying an unloaded weapon to provide identification, and to allow time for the officer to verify that the person is not prohibited from possessing a weapon. That action, however, rests with the legislature.

As with any issue, as stated above, reasonable minds can always disagree.  It is, however, incumbent upon all of us who serve public safety to express, address and, if possible, resolve differing points of view through mutual respect and civil discourse based on thoughtful and informed consideration of our own views and those of others.
You are encouraged to consult with your designated legal counsel for further advice on this or any other matter.  And as always, if you wish to discuss this in greater detail, please feel free to contact me at (714) 446-1400 or e-mail me at prc@jones-mayer.com

Information on www.jones-mayer.com is for general use and is not legal advice. The mailing of this Client Alert Memorandum is not intended to create, and receipt of it does not constitute an attorney-client relationship.
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¹  POV, pg. 1
²  POV, pg. 2
³  Penal Code §12031(e)
⁴  California Federal Savings & Loan Assn. v. City of Los Angeles, (1995) 11 Cal. 4th 342, 349.
⁵  Felons, persons subject to certain restraining orders, etc.
⁶  POV, pg. 1
⁷  Terry v. Ohio, (1968) 392 U.S. 1, 21-22
⁸  United States v. Yuknavich, (11th Cir, 2005) 419 F.3d 1302, 1311 (quoting United States v. Knights, (2001) 534 U.S. 112, 121.
⁹  POV, pg. 2
¹⁰ (1^st Cir, 2009) 589 F.3d 496
¹¹ See Annotated Laws of Massachusetts (ALM) (GL ch. 269, § 10 (2011)
¹² POV, pg. 1, 4
¹³ See Terry, 392 U.S. at 16, 19
¹⁴ United States v. Luckett, (9th Cir. 1973) 484 F.2d 89, 90-91.
¹⁵ (1983) 140 Cal. App. 3d 616, 621
¹⁶ PO(1973) 33 Cal. App. 3d 429, 435­    436)V, pg. 2-3,
¹⁷ (1973) 33 Cal. App. 3d 429, 435-436
¹⁸ (1975) 52 Cal. App. 3d 351)
¹⁹ (2004) 542 U.S. 177)
²⁰ POV, pg.3
²¹ POV, pg. 3
²² (1987) 480 U.S. 321, 324)