The California Supreme Court asked itself – Is a person wearing a backpack that contains a loaded revolver carrying a loaded firearm on the person?
The California Supreme Court said in a published opinion:
“We conclude the answer is yes.”
The decision was unanimous.
Therefore the decision in this case does not affect my California Open Carry lawsuit or any of the concealed carry lawsuits in the 9th Circuit.
Here is a link to the decision.
Here is an article I wrote giving my thoughts on the decision.
It was 741 days since this case was filed in the California Court of Appeals before a decision was issued!
The case was fully briefed before the CA Supreme Court on 10/07/2015
The Case Was Argued and Submitted For A Decision On April 7, 2016, The California Supreme Court Will Issue Its Decision on May 9th at 10:00 am.
This is an important case for a number of reasons in addition to this case providing a current example of some of the procedural differences between the California courts and the Federal courts.
In the 9th Circuit Court of Appeals, a three judge panel decision is binding throughout the 9th Circuit Court of Appeals unless it is overruled by a 9th Circuit en banc court or the US Supreme Court. The original three judge panel decision, known as a “prior opinion” is binding on all subsequent three judge panels unless overruled by a 9th Circuit en banc court or the US Supreme Court.
In California, appellate courts are free to disregard prior panel decisions. The judges in People v. Wade did just that. They explicitly refused to follow the logic of the prior decision in People v. Pellecer. Theoretically, trial courts within an administrative district of a California appellate court are required to follow the appellate decisions published in their district but when there is a split, as we have now with Wade and Pellecer, judges outside the appellate district are free to pick and choose which precedent they will follow. I say “theoretically” because unless you are very young or have not lived very much then you already know that trial court judges do what they damn well please.
Once a decision is published it remains binding forever unless it is overruled by a subsequent court or unless the decision is subsequently unpublished in which case the decision is binding only upon the parties in the case. This is true of both the Federal and State courts.
People v. Wade – Case No.: S224599 is a case which disregarded the decision in People v. Pellecer, 215 Cal. App. 4th 508 – Cal: Court of Appeal, 2nd Appellate Dist., 1st Div. 2013. Pellecer had held that for a weapon to be concealed under California’s statutory definition of “concealed” the weapon must be concealed beneath or within the clothing one is wearing and a weapon carried in a backpack (or other container such as a suitcase) is not concealed. The language used in the statute at issue (carrying knives) is the same language used in the statute prohibiting the carrying of handguns (regardless of whether or not the handgun is loaded) and is used in the statute prohibiting the carrying of loaded firearms regardless of whether or not the firearm is concealable or concealed.
Attorney General Harris could have, but did not, appeal the Pellecer decision. The attorney for Wade has appealed to the California Supreme Court and his petition to hear his appeal was granted. AG Harris must now take a position on the Wade case which is probably one of the last things she wants to do given a dozen or so concealed carry cases either pending before the 9th Circuit Court of Appeals. If the California Supreme Court concludes that a handgun is not concealed unless it is concealed beneath or within the clothing a person is wearing then its decision, if it comes before the Peruta/Richards decision, would likely render those two cases moot.
If the Pellecer decision is held to be controlling and the Wade decision reversed by the California Supreme Court then it will likely become legal to carry loaded handguns in a variety of different containers so long as they are not concealed within or beneath the clothing one is wearing and to do so without a government issued permission slip.
Note that under current California law it is illegal to carry even an unloaded handgun concealed on one’s person or in a container without a permit with few exceptions. Possession of matching ammunition constitutes the carrying of a “loaded” firearm under California law and there is a Catch-22 to the ban on openly carrying unloaded handguns. There is a California law which says that if a handgun is carried unloaded in a fully enclosed locked container then that is an exception to the unloaded Open Carry ban. Unfortunately, carrying an unloaded concealable firearm (e.g., handgun) even in a fully enclosed locked container is carrying a concealed weapon under current California law. In short, comply with one law and you are in violation of another.
It is important to note that the California Supreme Court will not be deciding whether or not the law is unconstitutional under the Second Amendment or the First Amendment of the California Constitution. The question before the California Supreme Court is one of statutory construction. Specifically, what is the meaning of “on his person”? Is a loaded handgun concealed withing a back pack and carried within a public place carried on your person in violation of California Penal Code section 25850?
The case is now fully briefed. We await oral arguments after which decisions are typically released within 90 days.
I suspect this is why it takes so long for the court to schedule oral arguments. It could be another two years before we have a decision.
Update by Charles Nichols, President of California Right To Carry – May 9, 2016 – The California Supreme Court asked itself – Is a person wearing a backpack that contains a loaded revolver carrying a loaded firearm on the person? The California Supreme Court said in a published opinion “We conclude the answer is yes.” Therefore, the decision in this case does not affect my California Open Carry lawsuit or any of the concealed carry lawsuits in the 9th Circuit. Here is a link to the decision.
Update by Charles Nichols, President of California Right To Carry – May 6, 2016 – The opinion will be filed on Monday, May 9, 2016 at 10:00 a.m. Although the California Supreme Court is required to issue a decision within 90 days after taking the case under submission for a decision, I did not expect the decision to come quite this soon. What the Court has to say in this decision could have a major impact on my California Open Carry case as well as the concealed carry cases currently pending before the 9th Circuit Court of Appeals. Most notably, the Peruta v. San Diego/Richards v. Prieto cases which were heard before an en banc panel of 11 judges last June. The question before the court is what does it mean for a person to be carrying a loaded firearm “on his person”? In this particular case the defendant was carrying a loaded handgun in a backpack. The court of appeals rejected a prior decision which held that “on/upon” meant beneath or within the clothing a person is wearing as applied to knives. If the California Supreme Court upholds the appellate court ruling in this case (Wade) then it will have no impact on my case or any of the other concealed carry cases. If the California Supreme Court follows the reasoning in the prior case (Pellecer) then those who seek to carry handguns loaded and concealed will be able to do so without a permit so long as they do not carry them within or beneath the clothing they are wearing.
Yes, there are many places that they will still be unable to carry a loaded, concealed handgun (such as within the prohibited areas pursuant to California’s Gun-Free School Zone Act of 1995) but none of the Plaintiffs in either the Peruta or Richards cases sought to carry a loaded, concealed handgun in any particular place. Nor did they challenge the authority of the Sheriff to restrict when and where their permits would be valid. If the California Supreme Court follows the reasoning in the Pellecer decision then the Peruta/Richards concealed carry cases become moot. The en banc court does not have to issue a decision. By the same token, the defendants in my California Open Carry case can hardly put forth even a “rational basis” defense of my challenge to the statute which seeks to openly carry loaded firearms for the purpose of self-defense if people are allowed to run around with loaded concealed handguns, which the California courts have always held to be a danger to public safety. A danger not present in the carrying of firearms openly.
Update by Charles Nichols, President of California Right To Carry – April 7, 2016 – Oral arguments took place early this afternoon and the case was taken under submission for a decision. The California Supreme Court is required to issue a decision within 90 days.
Update by Charles Nichols, President of California Right To Carry – March 2, 2016 – Oral arguments will take place on on Thursday, April 7, 2016, at 1:30 p.m., in Los Angeles. Unlike the Federal courts, the California Supreme Court will have to render its decision in 90 days. This could have interesting ramifications on the Peruta/Richards cases as well as all of the other concealed carry cases in California. If Wade prevails then it will be legal to carry a loaded, concealed handgun so long as the handgun is not concealed beneath or within the clothing one is wearing. This case is unlikely to affect my California Open Carry lawsuit because the sole constitutional challenge is a vagueness challenge as to the meaning of “on his person” which is an ambiguity the California Supreme Court can easily resolve without striking down the statute (PC 25850 which is, in part, the new code section for PC 12031).
A decision in Wade’s favor could moot the Peruta/Richards and other California concealed carry cases should the California Supreme Court decide in Wade’s favor before there is a final judgement by the 9th Circuit Court of Appeals in Peruta/Richards etc. As you should be aware, the plaintiffs in Peruta & Richards wanted concealed carry permits so that they might carry loaded handguns concealed. If Wade prevails then the plaintiffs will be able to carry loaded handguns concealed without a permit.
Also, on April 6, 2016 the California Supreme Court will hear oral arguments in PEOPLE v. CASTILLOLOPEZ which asks the following question:
“Was defendant’s possession of a concealed and opened pocketknife with the blade in its fully extended position sufficient to sustain his conviction for carrying a concealed dirk or dagger in violation of Penal Code section 21310?”
Update by Charles Nichols, President of California Right To Carry – November 30, 2015 – Nothing new. It could easily be a couple of years before oral arguments take place and the appeal is taken under submission for a decision.
Update by Charles Nichols, President of California Right To Carry – October 30, 2015 – Nothing new. It could easily be a couple of years before oral arguments take place and the appeal is taken under submission for a decision.
Update by Charles Nichols, President of California Right To Carry – October 7, 2015 – The case is now fully briefed. Now we wait for oral arguments or for the California Supreme Court to take the case under submission without oral arguments. It will likely be a very long wait before the case is taken under submission for a decision but once it has been, the California Supreme Court is required to issue its decision within 90 days (unless it asks for supplemental briefing). If a decision is not released within 90 days then the members of the California Supreme Court do not get paid until the decision is released.
Update by Charles Nichols, President of California Right To Carry – September 28, 2015 – I received two emails this morning, four minutes apart stating that the State had filed both the Answering brief and Reply brief. Granted that I know next to nothing about California appellate law but I am pretty sure that the Reply brief is supposed to be filed by Wade in Reply to the State’s Answering brief. I’ve contacted the website administration inquiring/informing them of as to/of the error.
Update by Charles Nichols, President of California Right To Carry – August 25, 2015 – Wade’s opening brief was now due on August 21, 2015. I received notification from the court today that the brief has now been filed. I’ve emailed Wade’s attorney at least twice now asking for a copy of his opening brief, I did not receive any response.
Update by Charles Nichols, President of California Right To Carry – July 27, 2015 – Wade’s opening brief is now due on August 21, 2015
PEOPLE v. WADE
Case: S224599, Supreme Court of California
Date (YYYY-MM-DD): 2015-07-27
Event Description: Extension of time granted
Notes: On application of respondent and good cause appearing, it is ordered that the time to serve and file the opening brief on the merits is extended to and including August 21, 2015.
No further extensions of time are contemplated.
Update by Charles Nichols, President of California Right To Carry – June 23, 2015 – Wade has a new attorney. David Polsky, a lawyer from Connecticut.
|06/23/2015||Counsel appointment order filed||Upon request of respondent for appointment of counsel, David Polsky is hereby appointed to represent respondent on the appeal now pending in this court. Respondent’s brief on the merits must be served and filed on or before thirty (30) days from the date of this order.|
Update by Charles Nichols, President of California Right To Carry – June 1, 2015 – Nothing new.
Update May 20, 2015 by Charles Nichols – President of California Right To Carry – Wade’s lawyer asks to be let off the case. Unfortunately, I do not have access to the motion and so I have no idea why she filed it.
|05/18/2015||Motion filed||motion to be relieved as counsel of record. by Jean Ballantine, counsel|
Update May 13, 2015 – For some unknown reason I am not receiving email updates from the court in this case. Here is the latest update:
|05/12/2015||Counsel appointment order filed||Upon request of respondent for appointment of counsel, Jean Ballantine is hereby appointed to represent respondent on the appeal now pending in this court. Respondent’s brief on the merits must be served and filed on or before thirty (30) days from the date of this order.|
Update May 4, 2015 – What with all the briefs filed in the Peruta v. San Diego en banc case and somehow my missing an email notification from the court, I missed the fact that the California Supreme Court on April 29, 2015 granted the petition for review in this case. It will now resolve the split between Pellecer and Wade. It is highly unlikely that the California Supreme Court will publish a decision before we have an en banc decision in Peruta. If the Pellecer decision definition of concealed prevails then one will be able to carry a loaded handgun concealed in an unlocked fanny-pack, purse, backpack, suitcase, and in any unlocked container so long as neither the handgun nor the container is carried beneath or within one’s clothing. Interestingly, there are 19th century style flap holsters which it seems to me would qualify as a “container” under the Pellecer decision as they completely conceal the handgun from sight. Unfortunately, this decision would not extend to long guns because they are not concealable firearms under California law. Long guns will still have to be carried unloaded and fully encased. If the case was not designed for long guns then the case must be locked in addition to the long gun being unloaded.
As this case turns on a statutory interpretation and not a constitutional one, should the appellate court’s definition of concealed in Wade to define “concealed” to include containers one is carrying or in possession of be narrowed to the definition given in Pellecer then the California legislature can always pass a bill expanding the definition of concealed.