Feds say Unloaded Firearms are "Loaded" Firearms
United States v. Gearheart, 6:23-mj-00006, (E.D. Cal.)
Charles Edward Gearheart, Jr. had an unloaded shotgun in his vehicle in Yosemite National Park. The Federal Government is prosecuting him for having a “loaded” firearm in the park in violation of California Penal Code section 25850 (state law crimes apply to Federal lands).
Section 25850 does not define what constitutes a loaded firearm but there are separate sections of the California Penal Code that define a “loaded” firearm. One is “a firearm shall be deemed to be “loaded” whenever both the firearm and the unexpended ammunition capable of being discharged from the firearm are in the immediate possession of the same person.”
When my California Open Carry lawsuit was filed in November of 2011, California law defined a loaded firearm as having ammunition “attached in any manner to the firearm.” The definition under California law for carrying loaded and unloaded rifles shotguns and handguns has expanded to merely possessing ammunition (the same as for concealed carry).
My California Open Carry lawsuit, Charles Nichols v. Gavin Newsom et al challenges California's bans on openly carrying loaded and unloaded firearms outside of the home for the purpose of self-defense and other lawful purposes.
My lawsuit explicitly challenges California’s definition of “loaded” firearms for a couple of very important reasons. The first is carrying a loaded handgun in violation of PC25850 (openly or concealed) is potentially a “wobbler,” meaning it can be prosecuted as a misdemeanor or a felony. A felony conviction results in a lifetime prohibition on one’s right to possess firearms under both state and Federal law. Secondly, the separate bans on openly carrying unloaded firearms also define “loaded” as possession of ammunition regardless of whether or not the ammunition is attached in any manner to the firearm.
Federal District Court Judge Samuel James Otero (now retired) in his May 1, 2014, judgment in favor of the State of California incorporated the Report and Recommendation of Federal Magistrate Judge Suzanne H. Segal in which she compared firearms to crystal meth and people who carry firearms (openly or concealed) to dealers in crystal meth.
I filed a timely notice of appeal on May 27, 2014.
Because of the various concealed carry lawsuits on appeal at the time, particularly Pertua v. San Diego, the filing of my opening brief on appeal was delayed until November 9, 2016.
If I had not challenged California’s definition of “loaded” firearms in my opening brief then that would have constituted a waiver of my challenge to the definition. If the State of California had not replied to my challenges to State law I made in my opening brief in its answering brief then that would have constituted a waiver to the challenge by the State of California, and I would have won those claims the state failed to argue in its answering brief on appeal.
In its answering brief, the State of California argued that I had only briefly argued that California’s definition of “loaded” was unconstitutional and was therefore waived.
Curiously the state’s attorney representing the California governor and attorney general then cited a California Court of Appeals opinion from 1996 that I had argued in support of my position that a firearm is not loaded unless there is an unexpended cartridge in the firing chamber. “Under the commonly understood meaning of the term ‘loaded,’ a firearm is ‘loaded’ when a shell or cartridge has been placed into a position from which it can be fired; the shotgun is not ‘loaded’ if the shell or cartridge is stored elsewhere and not yet placed in a firing position.”
In my reply brief, I pointed out that I had devoted two pages of my opening brief to arguing that unloaded firearms are not loaded and therefore neither was the argument in my opening brief not “briefly argued’ nor was it waived and certainly not raised for the first time on appeal which I then proved by quoting from a brief the state’s attorney had filed in the district court, “Third, the SAC [my Second Amended Complaint] asserts that Section 25850 is unconstitutionally vague in how it defines the places where open carrying is prohibited, as well has (sic) how the law defines whether a firearm is loaded.”
Although one is not limited on appeal to the arguments made in the district court, the Excerpts of Record from the district court had proved, in the state’s attorney's own words that I had made the very same argument in the district court that I was making on appeal.
That may be why a large portion of the oral argument before the three-judge panel assigned to my appeal concentrated on my Fourth Amendment claim, and at one point, the state conceded that an unloaded firearm is not “loaded.”
On March 27, 2024, Federal Magistrate Judge Helena M. Barch-Kuchta filed an Order denying Mr. Gearheart’s motion to dismiss.
The order of the magistrate judge is non-sensical when it comes to loaded and unloaded firearms and licensing.
For a firearm to be loaded, which the State of California has long since conceded a loaded firearm must have an unexpended round in the barrel or firing chamber. The magistrate judge disagrees, but she does not stop there. She concludes that a license to openly carry a handgun is an exemption to the ban on carrying loaded long guns (it is not).
When I came across this case last week, I called the Federal Public Defender’s Office and spoke with the attorney representing Mr. Gearheart. She is from Florida and not as well-versed on this topic as I am. She mentioned that she had discovered a California Fish and Game code statute that defines an unloaded firearm as one in which there is an unexpended cartridge in the barrel or firing chamber. I replied that California has different definitions of what constitutes a loaded firearm, and that “loaded” can mean simply being in possession of ammunition. I gave her the citation for the California Court of Appeals opinion from 1996 which both the State and I had cited, “Under the commonly understood meaning of the term ‘loaded,’ a firearm is ‘loaded’ when a shell or cartridge has been placed into a position from which it can be fired…” (People v. Clark).
I let her know that it would have been impossible for Mr. Gearheart to obtain a license to openly carry a handgun because it was not until after January 1st of this year did the California attorney general provide for licenses to openly carry a handgun, for the first time in 14 years. I reminded her as well that even if it were possible to obtain a license to openly carry a handgun then that license is limited to one’s county of residence and only if one’s county of residence has fewer than 200,000 people.
Notwithstanding that the license does not permit one to openly carry a loaded long gun (long guns are not concealable firearms by California statute), there is no license for the general public to carry a long gun, loaded or unloaded. Long guns, loaded and unloaded, are banned from being carried in public for the purpose of self-defense. I may have mentioned as well that antique long guns are exempt from the California ban on openly carrying long guns and so California state law does not make it a crime to walk down Mainstreet California with an unloaded flintlock rifle or musket over your shoulder.
Moreover, the shotgun was inside of a cardboard box inside of Mr. Gearheart’s motor vehicle. Inside of a motor vehicle is an exemption from the unloaded long gun ban which is no doubt why the Federal government is prosecuting Mr. Gearheart for having a “loaded” firearm in his motor vehicle.
I gave the Federal public defender the citation for the published California Court of Appeals opinion issued last August that held, consistent with the United States Supreme Court holdings in District of Columbia v. Heller, McDonald v. City of Chicago, and NYSRPA v. Bruen, that Open Carry is the right guaranteed by the Second Amendment and held prohibitions on concealed carry do not violate the Second Amendment.
The phone call lasted half an hour.
That was my good deed for the day.
Courtlistener Docket for United States v. Gearheart, 6:23-mj-00006, (E.D. Cal.)