California Criminal Jury Instructions No Longer Label Carrying Taser "Carrying a Loaded Firearm"

A small step forward for self-defense rights.

|The Volokh Conspiracy |

Judges usually instruct juries using so-called "pattern jury instructions"—instructions prepared by the court system for judges to use. In principle, judges can write their own, or adopt instructions sought by one or both parties, but practically judges and lawyers heavily rely on the pattern instructions.

Until recently, the comments to the California pattern jury instruction for carrying-a-loaded-firearm prosecutions (CALCRIM No. 2530) noted that the instruction should be given in Taser carrying cases, and presumably that the jury should be told,

"[A] Taser is a firearm and can be a loaded firearm within [firearms carrying bans]." (People v. Heffner (1977) 70 Cal.App.3d 643, 652 [139 Cal.Rptr. 45].)

But while Heffner did so state, it was speaking about early Tasers, in which "[t]he contactors [were] deployed … by the electrical ignition of a squib containing four-fifths of a grain of smokeless powder." But modern Tasers don't use gunpowder, precisely to avoid a similar 1976 federal decision that held that they were firearms. Today, then, Heffner would likely no longer be binding. But so long as the CALCRIM notes mentioned Heffner, that would increase the likelihood that prosecutors would recommend instructions that said that a Taser was a firearm, judges would adopt them, and then juries would consider them.

I'm pleased to say that the 2019 CALCRIM instructions no longer make this obsolete claim (see also here): they no longer cite Heffner or say that Tasers are firearms. Some time ago, Charles Nichols had mentioned the obsolete instruction to me, I mentioned it to someone I knew who was involved in revising the jury instructions, and apparently the decisionmakers listened (though it may well be that many other people raised similar objections as well). So sometimes things do get better, with urging and patience.

NEXT: When the Cops Come for You in the Target Parking Lot

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  1. What would be the point of telling (or not telling) a jury that carrying a Taser is like carrying a firearm (whether it has explosively-propelled probes or not)?

    How and why does this distinction (or not-a-distinction) have any relevance to anything a jury is deciding?

    1. When the person carrying a Taser is arrested and charged with illegally carrying a firearm is the circumstance that immediately springs to mind. Also, there are crimes that are defined as “doing [X] while carrying a firearm”

      1. If a Taser isn’t a firearm, how did a case of a person charged with “carrying a firearm” who only had a Taser get to the point of even empanelling a jury?

        1. Presumably, the person was charged with other (real) crimes. “carrying a firearm” is usually just an aggravating factor.

        2. By getting a prosecutor who doesn’t like tasers? Are we assuming prosecutors never try to sneak something by a jury?

          1. Judges tend to notice when the defendant is charged with something that is not a crime. Surely the defense attorney noticed?

        3. It appears that the case cited in the post involved a trial court judge that allowed the prosecution, the Defendant having been stopped for a traffic stop and found to have a Taser and arrested because the police believed Tasers were firearms and prosecuted because so did the prosecutor. The first level of appeal reversed the conviction (2-1 decision). The California 2nd court of appeals determined (wordily) that a Taser was “obviously” a firearm.

    2. “Your Honor, how can you allow this suit against my client, a police officer with an impeccable record, simply because he arrested this plaintiff for what the state’s own jury instructions recognize as a crime?”

  2. What “is” or “is not” a “firearm” is a matter of statutory definition, not the common, everyday dictionary definition of the term, and it’s not immediately obvious, or at least not enough to base a jury instruction upon.
    For example, under New Jersey law, a slingshot powered by rubber bands is a “firearm”, as is a spring-powered BB gun. See N.J.S.A. 2C:39-1(f): “Firearm” means any handgun, rifle, shotgun, machine gun, automatic or semiautomatic rifle, or any gun, device or instrument in the nature of a weapon from which may be fired or ejected any solid projectable ball, slug, pellet, missile or bullet, or any gas, vapor or other noxious thing, by means of a cartridge or shell or by the action of an explosive or the igniting of flammable or explosive substances. It shall also include, without limitation, any firearm which is in the nature of an air gun, spring gun or pistol or other weapon of a similar nature in which the propelling force is a spring, elastic band, carbon dioxide, compressed or other gas or vapor, air or compressed air, or is ignited by compressed air, and ejecting a bullet or missile smaller than three-eighths of an inch in diameter, with sufficient force to injure a person. ”

    So, if someone in NJ takes a forked stick and some rubber bands, makes a slingshot and launches a pebble less than 3/8 inch in diameter through a window, he’s guilty (at least) of the felony of possession of a firearm for an unlawful purpose. Depending on the charging whim of the prosecutor (pretty much) and the circumstances of the event he could be facing up to a mandatory minimum of 5 years in prison. See https://law.justia.com/codes/new-jersey/2013/title-2c/section-2c-39-5/
    Don’t laugh – one of the original cases on NJ’s mandatory prison law for gun offenses (the Graves Act) involved a kid plinking out windows of wrecked cars dumped back in the woods, and he did 3 years.

    Across the river in PA, you can make and sell all the slingshots you want, because a “firearm” is defined entirely differently:
    “Firearm.”  Any pistol or revolver with a barrel length less than 15 inches, any shotgun with a barrel length less than 18 inches or any rifle with a barrel length less than 16 inches, or any pistol, revolver, rifle or shotgun with an overall length of less than 26 inches.  The barrel length of a firearm shall be determined by measuring from the muzzle of the barrel to the face of the closed action, bolt or cylinder, whichever is applicable. 18 Pa. Con. Stat. Ann. sec. 6102.

    Note that, for example, in the general definition in Pa., a regular hunting shotgun (or rifle) is not a “firearm”, while in NJ it is.

    However, several sections of the Pa. law include a broader definition that includes all firearms, i.e. handguns, rifles and shotguns, and pertains to that section only.

    And so it goes, nationwide. (California is even worse when it comes to complexity, so much so that many gun dealers categorically refuse to do business with anyone in California.) One almost needs to be a lawyer to be a gun owner.

    1. Thanks for posting , lots of perspective.

    2. I’m so thankful I didn’t live in NJ when I was a kid (assuming that the laws were the same back in the stone age). I’d probably still be in prison for being a school shooter.

      It seems I would have been guilty many times of not only carrying a firearm in grade school, but actually shooting other students with it – there were tens of victims and I was a repeat offender. My weapon of choice was a rubber band (“elastic band”) loaded with small carefully folded paper projectiles (a “solid projectable pellet” to a creative prosecutor) less than 3/8″.

      My victims sometimes said “ouch” (occasionally followed by something a bit stronger). If I had hit them in the eye, it’s likely actual injury would have occurred. Therefore, the projectiles had “sufficient force to injure a person”.

      I even did this sometimes in the classroom when a teacher was present between classes or when the course was boring and I had finished my work during a “study session”. I never even got sent to the principal’s office, let alone prosecuted by the authorities. My parents weren’t even called nor did I ever have to stay after school for this infraction. Yes, I was told to put away my rubber band — which I did rather than questioning the teacher: “You have no right to stop me from expressing myself and I’m not hurting anyone”. (Of course, I knew that if I had ended up with my parents knowing about this and my failure to comply with the teacher’s order that they would assume that I, not the teacher, was in the wrong and that I would suffer the consequences!).

      How times have changed.

  3. Prof. Volokh,

    How do you square this decision with the Caetano v. Massachusetts (and I mean the gist of the cases, obviously one is a state-level, administrative, non-binding decision and one is a SC decision)?

    Here, we’re saying a stun gun/taser shouldn’t be identified as an arm where in Caetano, the SC decided a stun gun/taser should be identified as an arm and could not be banned per 2A.

    1. Here we’re saying a stun gun/taser shouldn’t be identified as a firearm. “Arm” is a much more general term than “firearm”, encompassing basically anything that could be used as a weapon; Knives, spears, swords, clubs, flails, whips…

      1. ….pens, pencils, baseball bats, golf clubs….

      2. If you remember the case (Maloney v. Singas) that was posted about here a while back, nunchaku are protected by the 2nd Amendment in the 2nd Circuit. And if I recall correctly, SCOTUS denied cert of the appeal, so the Court did, just by a bit, expand the right to keep and bear arms.

        1. Well, it is the right to keep and bear “arms”, not “firearms”. Or, as Tench Coxe put it, “every terrible implement of the soldier”.

          1. On that lovely note, Texas is rolled back its ban on brass knuckles, those kitty cat self defense weapons, and clubs. Signed into law on the 29th of this May by Gov Greg Abbott.

            1. I have the delight of living in SC, which allows any edged weapon, open or concealed, so long as you don’t commit a crime with it.

              Getting that sword cane is going to be a little bit of consolation for my gradually deteriorating arthritic ankle.

              1. I recommend spending the extra $29.95 and getting the curare-infused tip.

                1. Interesting question, are poisoned blades protected by the 2nd Amendment? My first blush answer is no, at least not under current legal precedent, because they are not weapons that a typical soldier would have.

                  1. That’s my impression. Falls under the traditional exception for dishonorable weapons.

                2. No, I want that sleep inducing drug “Ham” Brooks used on his sword cane in the Doc Savage novels. Curare is kind of final.

          2. “Well, it is the right to keep and bear “arms”, not “firearms”.”

            Tweaking that the other direction, it’s the right to keep and bear arms, not your own choice as to which arms you keep and bear. So if they let you have one kind, they don’t necessarily have to let you have any other kind. (Not that I’m suggesting anyone would go along with that… judges, politicians, or general citizenry.)

            1. That type of reasoning has been repeatedly rejected in nearly every other Constitutional context. No court, for example, would uphold a ban on newspapers on the grounds that you can always publish a magazine.

  4. Incidentally, to the extent that jury instructions are telling the jury about a criminal statute the defendant is alleged to have violated, what is the problem with simply giving the jurors the text of the statute in question, without commentary – except perhaps to explain the rule of lenity?

    Maybe I’m naive, but in their ordinary lives, citizens are expected to know what the laws are, and if they don’t know, “ignorance of the law is no excuse.” So long as the law isn’t unconstitutionally vague, your average person is expected to know of the law and understand what it means – and if they haven’t consulted the commentaries on the law, that’s no defense.

    So when that same citizen is in the jury box, why not simply assume they have the same powers of understanding that they’re required to have out in the rest of the world, and avoid giving commentary or extra explanations of statutory terms?

    (I’m not talking here about “common-law crimes” defined by court opinions but not written down by the legislature, or about constitutional doctrines – I’m just talking about legislatively-enacted criminal statutes which juries are called on to enforce).

    1. The reason judges do not give the jurors the statute by itself is because, in our common-law system, what the statute means and how it applies have been fought over, time and again, in case after case. It is the meaning of the statute that counts. Recall my earlier comment upthread, where I described the difference in what is or is not a “firearm”, depending on the differences in the laws of two adjacent states. If we were to just give the jury the statute, without more, there would be no uniform meaning and the defendant’s right to due process of law (Remember that right?) would be abrogated. There would be no real way for a person to know what was, or was not illegal, except perhaps in the grossest (as opposed to fine-grained) sense.
      The common-law, case-by-case, precedent-by-precedent development of jury instructions is perhaps more important in civil matters, for example in contract law. There the law which applies has developed over centuries, case-by-case. In the civil trial, possibly the most important event in the course of the trial is the charge conference, where the charges the judge will give the jury are hammered out. The lawyers might submit proposed jury instructions before and during trial, but it’s at the charge conference when which charges are given is decided. Since that happens (outside the presence of the jury) after all the evidence has gone in to the jury, it’s a time when very nasty surprises can come up depending on the judge’s decision (if you like the surprise) or whim (if you don’t).
      Moreover, pattern jury instructions are extremely useful in deciding how to prepare a case. I was taught (in the course of practicing, i.e., “between spoons of soup” – this is NOT taught in law school) that the time to look at the pattern jury instructions and adopt them was before you wrote your complaint. The pattern jury instructions told you what you had to prove. Based upon the facts your client and your initial investigation provided, you went to the pattern instructions and estimated what you could reasonably prove and then you wrote your complaint around those legal theories.
      In the criminal context, the pattern instructions tell both sides the same thing: the prosecution, what it has to prove to sustain a charge. The defense, what does or does not sustain a charge and, by extension, how to dismantle the prosecution’s case. A jury instruction which does not accurately state the law (or which contains error when given to the jury) is the easiest grounds for an appeal seeking a new trial. The California instruction that started this discussion, which was corrected, now states the law correctly, ensuring innocent people will not be convicted for conduct which is not a crime.

      1. “If we were to just give the jury the statute, without more, there would be no uniform meaning and the defendant’s right to due process of law (Remember that right?) would be abrogated.”

        If there would be no uniform meaning because the meaning can’t be figured out by normal people, that means it’s unconstitutionally vague.

        “There would be no real way for a person to know what was, or was not illegal, except perhaps in the grossest (as opposed to fine-grained) sense.”

        We would have to assume that citizens not only pore over the statute book, but search out the latest judicial precedents decided under the statute. That strikes me as an unrealistic expectation, you may as well be like that old-time tyrant who put up the laws on a pillar so far above the ground they couldn’t be read.

        1. Plus, instructing the jurors on the rule of lenity would address the risk of trapping a defendant by a contested interpretation.

          1. This article showed how the sky didn’t fall in Maryland back in the days when juries could judge the law. Judges either thought it didn’t make a difference in the outcome, or that it made acquittals more likely. None of the judges surveyed thought the system tended to favor the prosecution.

            https://openscholarship.wustl.edu/cgi/viewcontent.cgi?referer=https://scholar.google.com/&httpsredir=1&article=2651&context=law_lawreview

    2. ” what is the problem with simply giving the jurors the text of the statute in question, without commentary – except perhaps to explain the rule of lenity”

      Because any established law will have had a bunch of cases where different people asked how th statute should be applied to a specific facts and circumstances, and all of those prior decisions are law, too.

      1. Is this how it works in *every* country? If not, which countries have the better system?

  5. You’re welcome.

    I will once again ask the state’s attorney representing Governor Newsom and Attorney General Becerra to ask his them if they are willing to stipulate that modern Tasers are not firearms and therefore may be carried in public without violating California’s Open Carry bans.

    The last time I asked was four or five years ago when Brown was the governor and Harris was the attorney general.

    Of course, should I win my Federal lawsuit against California’s Open Carry bans then it won’t matter if Tasers are/are not “firearms.”

    Charles Nichols v. Gavin Newsom, et al -> https://californiaopencarry.com/status-of-my-federal-open-carry-lawsuit/

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