Your Second Amendment Rights and Private Property

The crimes of carrying a loaded firearm or possession of a concealed firearm both require that the firearm be carried by the person in a “public place”. But this is limited to what the Courts construe as the meaning of a “public place”.

What the Jury Instructions Say

Jury instructions are often a helpful way to determine whether the Government can prove a crime. The leading Jury Instructions used in Solano, Napa, and Yolo Counties includes the Judicial Council of California Criminal Jury Instructions, which lawyers refer to as CALCRIM.

To convict on the basis of Unlawful Carrying a Loaded Firearm [PC §  25850], the prosecutor must first prove the elements of CALCRIM 2530, defining that crime. This requires:

  1. The defendant carried a loaded firearm (on (his/her) person/in a

vehicle);

  1. The defendant knew that (he/she) was carrying a firearm;

AND

  1. At that time, the defendant was in a public place or on a public street in (an incorporated city/in an unincorporated area where it was unlawful to discharge a firearm).

Thus, the prosecution first must establish that the defendant had a loaded firearm in a public place to prove a violation of PC § 25850.

To convict on the basis of a Concealed Firearm (PC §  25400), the prosecutor must first prove the elements of CALCRIM 2520, defining Carrying Concealed Firearm on Person. This requires:

  1. The defendant carried on (his/her) person a firearm capable of being concealed on the person;
  2. The defendant knew that (he/she) was carrying a firearm;

AND

  1. It was substantially concealed on the defendant’s person.

CALCRIM 2520 then directs that the carrying of the concealed firearm was not unlawful if a statutory exemption contained in PC § 25605 is true, which is the above cited statute that states it is not unlawful to carry a firearm:

“[E]ither 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 handgun.” [PC § 25605(a)].

Therefore, if a defendant can show that he carried the firearm concealed on his person, “on private property . . . lawfully possessed by the citizen or legal resident”, he is not guilty of carrying a concealed weapon. The issue thus becomes how the law defines “private property . . . lawful possessed by” the defendant.

Of course, both of these points, regarding loaded and concealed firearms in public, are moot if a person possesses a valid CCW permit allowing them to keep a concealed loaded firearm in public under PC § 26150.

 As we will see in the next section, Courts have found that where a defendant was within the fenced curtilage of a private residence, he is not in a “public” place under the meaning of PC § 25850 (loaded firearms in public), which by logical extension should apply to PC § 25400 (concealed firearms in public). [See People v. Strider (2009) 177 Cal.App.3d 1393, 1400-1402].

What the Courts have said

When a statute is unclear as to what the words contned in the law mean, it is up to the Courts to determine the legal meaning of those words. We call this “caselaw”.

In Strider, the case cited above, the defendant was seen inside of a gated front yard of a “known Southside Crip gang hangout” in Compton, when a patrol officer observed that the defendant had a pistol protruding from the back of his pants. Id at 1396. The officer followed the defendant through the latched gate and into the residence, where the gun was located and crack cocaine was also found. Id. at 1396-1397. The defendant challenged the search of the home and the arrest on grounds that the officer did not have reasonable suspicion to believe that he had committed a violation of the predecessor to PC § 25850 (Loaded Firearm Public Place), PC § 12031, that would have validated the officer’s entry onto the premises under the exigent circumstances doctrine. Id. at 1400, 1408.

The appellate division agreed, finding that under the totality of the circumstances, the gated front yard was not a “public place” for purposes of PC § 12031, because members of the gated front yard was not open to general public use and did not indicate that it was a place that the public could enter without challenge. Id. at 1405. The fence, which was unlatched, acted as a barrier that acted to exclude the public. Id. Although the fact that the fence could be seen through was relevant to the determination of whether the front yard was a public place for the purposes of PC § 12031, that fact was not dispositive. Id. Other factors, such as that the home was known as a Crip “hangout”, that the gate was did not have a lock, or the existence of a rap recording studio in the rear of the home, were not enough to overcome the evidence that there was a gate serving to exclude members of the public who were not invited to be on the premises. Id. 1406-1407. Finding that the officer’s observations of the defendant with a gun in the gated front yard of the home could not serve as the basis to investigate the defendant pursuant to PC § 12031, the appellate division reversed the trial court’s finding that the search was justified.

Based on this decision, there is a good argument a fenced in front yard is not a “public place” in light of the Strider ruling. Strider indicated that it was relevant to the analysis of whether a location is “public” under the statute as to whether that location was viewable to members of the public. Strider at 1405. In addition, the main inquiry Strider used to determine whether or not a place is a “public place” under PC § 12031 (PC § 25850), was whether the location was a place that the public could enter “without challenge”. Id. at 1405. Strider  determined the latched gate was a barrier that indicated a challenge to public access and common use. Id.

Takeaway for Protecting your Second Amendment Rights at Home

The more you protect your own privacy, the more the law recognizes that privacy. In Strider,  the addition of a latched gate was determined to extend the right of an occupant of that home’s right to possess a firearm at his home under PC § 25605(a) to the front yard. You must assert your rights in order to protect them.

At Honeychurch & Boyd, we specialize in asserting your Constitutional rights and protecting them from the Government. If your rights to have been violated by the police, or if you are charged with a crime by the actions of the police, and you were arrested in the Solano County communities of Fairfield, Green Valley, Vacaville, Benicia, Vallejo, Dixon, or Rio Vista, or anywhere in  Napa and Yolo Counties, call us today for a free consultation at 707-429-3111, to see how we may be able to defend your rights to the maximum extent of the law and obtain the best results on your behalf.