CalGuns 2nd Amendment and Politics - Definition of LoadedWhat is “loaded”?As much as effort has been made to be accurate,
[COLOR="Blue"]
This is not legal advice!
This is a layperson’s summary of written law, with sufficient references that anyone could research the content.
For actual legal advice, consult YOUR attorney, whom you will PAY for an opinion.
Use your best judgement, including getting competent legal advice, before you act.[/COLOR]
[COLOR="Purple"]Note: ‘concealed’ and ‘how to transport’ are NOT included here[/COLOR].
FAQ first:
Yes, 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”.
Yes, 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”.
No, 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, 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.
Your comfort level may lead you to do
more than the law requires.
EXPLANATION:
California law has several usages of the term
loaded in the Penal code and elsewhere.
The most common definition of
loaded is from Penal Code 12031
THIS 12031(g) DEFINITION HAS BEEN MODIFIED BY CASE LAW!!!
The case is
People v. Clark (1996) 45 Cal.App.4th 1147 , 53 Cal.Rptr.2d 99 available at this
link.
The key paragraphs of the decision are these:
So, following
Clark,
loaded means “a firearm is "loaded" when a shell or cartridge has been placed into a position from which it can be fired”. This is NOT restricted to shotguns.
NEW CASE LAW COULD CHANGE THIS – again, consult your own paid attorney for specifics regarding any legal action.
There are, however, MORE definitions of
loaded for other circumstances. See next post.
Less common usages of loaded and problems with possession of ammunition.
Post 2 of 3.
12001(j) only applies to 12023 (carry with intent to commit a felony).
171e only applies inside the State Capitol, legislative offices, office of the Governor, Governor’s residence, etc.
Note that these definitions say nothing about
magazines, only firearm and ammunition.
Fish and Game Code has a different definition:
More obscure usages of loaded There is a
sentence enhancement for carrying concealed in PC 12025(b)(6)
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:
This is not quite ‘loaded’, but it is a case where possession of a kind of ammunition, without regard to whether it is actually in a weapon, is additionally a ‘bad thing’.
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):
Health and Safety Code 11370 and 11550 refer to a
loaded firearm, but do not define
loaded (see People v Clark notes, prior post).