Arizona Court Rules a Gun is ‘Loaded’ Even with An Empty Chamber

(Photo: Eric Paul/ Zamora/MCT/Newscom)

A three-judge panel in Arizona has determined the legal definition of a “loaded” firearm, ruling that a gun can be loaded even without a live round in the chamber.

The Arizona Court of Appeals came to this determination while upholding the conviction of Bo Lucas Johnson, who argued that the legality of his possession of a firearm on school grounds could not be determined due to the state’s vague definition of a “loaded” firearm.

Arizona law states that a person commits a “misconduct involving weapons” by knowingly possessing a deadly weapon on school grounds. But the law makes an exception if the firearm is not “loaded” and “is carried within a means of transportation under the control of an adult.”

Johnson argued that since the law does not specify whether a “loaded” handgun must have a round in the chamber, his misconduct involving weapons charge should be dropped. Johnson attorney’s cited Utah’s definition of “loaded,” which reads, in part, “when there is an unexpended cartridge, shell, or projectile in the firing position.” The California legislature has also spelled out their definition of a “loaded” firearm to include any firearm that has live ammunition in the magazine.

Johnson’s side argued that because Arizona law does not contain a similarly explicit definition, the current statue is unconstitutionally vague.

Appeals Court Judge Philip Espinosa disagreed. He ruled in the unanimous majority opinion that even though other states have chosen to define the term “loaded,” the Arizona legislature did not, which calls for the use of the “common sense” definition of “containing ammunition.” The term, therefore, is not unconstitutionally vague.

The language of Arizona’s law, Espinosa continued, “provides people of ordinary intelligence with sufficient notice and a definite warning that deadly weapons, which [the statute] expressly defines to include firearms, are not permitted on school property.”

The incident in question occurred in September of 2014. Johnson and another individual became involved in a verbal conflict while on the road. When they encountered each other the next day in a school parking lot, the individual approached Johnson’s truck and saw Johnson “handling” a firearm. He also claimed Johnson said something to the effect of, “driving like that will get you shot.”

Johnson was reported to the police, who determined that his firearm had live rounds in the magazine but not in the chamber. He was eventually convicted of one count of threatening or intimidating as well as a misconduct involving weapons. Grass Valley Justice Court place him on probation, fined him, and required him to attend four sessions of an anger management class.

Johnson can appeal the court’s decision to the Arizona Supreme Court.

{ 44 comments… add one }
  • Chris Baker August 28, 2017, 9:50 pm

    The laws are both unconstitutional as a direct infringement on a person’s right to keep and bear arms.
    “A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.”
    If they can tell you where you can or can’t carry your arms your right has been infringed. If they can tell you how you can carry it, your right has been infringed. If you have to ask permission (get a permit) then your right has been infringed. The only laws about firearms that are constitutional are the ones that involve using them to commit an illegal act such as robbery, kidnapping, murder or attempted murder.
    Note also that the amendment does not specify fire arms only, it also protects (or should) are any kind of weapons that are portable enough to carry with you. All the way from a sling of David (don’t know the proper name for them) to a shoulder mount anti-tank or aircraft rocket. That would be a bit awkward to carry but if you can bear it it’s constitutional. Swords, flails, daggers, clubs, all sorts of hand carry weapons should be recognized as protected by the second amendment.
    Instead of writing all kinds of unconstitutional laws, if they don’t like it, they should call for an article 5 and try to get the second amendment changed. That’s the legal way to do it. Just after “infringed” add whatever clause they want like for instance as long as you have a permit, or as long as you don’t carry it in areas adjudged to be gun free zones for safety. Stuff like that. Otherwise all their laws are unconstitutional.

  • Paul August 21, 2017, 11:58 pm

    CA even taxes your pension earned in another state.

    • Chris Baker August 28, 2017, 9:55 pm

      Don’t live in CA. Why would you ever move to The Peoples Republik of Kalifornia? I would think you’d be moving away instead of into CA. I left as soon as I retired. Born there, grew up there, went back after 7 1/2 years in the air farce, er, chair force, er, Air Force. Got stuck financially and finally got out. I dare say that Arizona averaged slightly more conservative when I moved here. Now we just need to get rid of McCain and Flake.

  • John L August 20, 2017, 11:57 pm

    As a native Arizonan I have never seen so many ignorant comments. Arizona has the least restrictive gun laws in the US. The loaded/ unloaded debate was from this guys attorney. The crime was handling and or threatening with a firearm on school grounds. Attorney was trying to muddy the waters with a technicality. Sheesh people! Arizona cops don’t give two shits if someone is carrying on their person or in a car. They do care when you start waving it around and making threats. Fact that this idiot did it on school property just makes it that much worse.

  • Boomhauer54 August 20, 2017, 3:13 pm

    I’m an AZ resident and while I’m a bit surprised by the judges ruling I know damn well what would have happened had this happened in CA. On Christmas Eve my brother (who lives in Rancho Cucamonga CA) went for a walk around 7:30. He has a Ca CCW that He’s had since the 80’s and always carries when he is out. Just got to the sidewalk when he noticed someone with a flashlight in between his house and the one next door. He went to investigate. The guy was abusive and said he was with the cable company and told my brother to mind his own business. Now this guy had no uniform and no truck (it turns out he was actually with the cable co. and his truck was around the corner but my brother did not know this) but he did notice the pistol in my brother’s pocket . This guy became even more abusive and my brother said he was calling the cops. So this guy says he’s calling the cops also. Brother goes back inside, calls, and tries to relax. An hour later the police arrive, asks if my brother was carrying a firearm earlier, bro admits, tells his side of the story and the cops arrest him and take him to jail. On Christmas Eve! He spends Christmas day in jail and finally gets bail about 4 PM. This cable guy asshole accused my brother of brandishing a weapon which I know damn well he wouldn’t do but the cops toke him in anyway. Short story long my brother who has never been in any trouble before goes in for 5 pre-trial hearings before the judge tells him either plead guilty and receive a lesser punishment or go to trial. Lawyer fees already mounting he pleads guilty and gets fined and probation. And one of the biggest nightmares of his life, he might have gone to prison. For something he did not do. The law took this other guy’s word over my brother’s because he admitted to having a firearm. So don’t tell me things are better in Ca!

    • VIc August 23, 2017, 3:57 pm

      It is important to know who judges are and to where possible to vote against those trying to use their position to drive the AntiAmerican Agenda.

  • KurtW August 19, 2017, 12:30 pm

    First, we get “Gender Fluid” so boys can be girls and girls can be boys, or not, depending upon the impulse/desire of the moment.

    Now, we have “Loaded Fluid”

    Thanks, Libbrulz.

  • Art C. August 18, 2017, 5:25 pm

    First, let me say that I oppose the concept of “Weapons Free Zones”. I agree that they create an area which makes things much safer for cowardly predators. Second, let me say that I agree with the judge’s decision. [Time for me to put on my FLAME SUIT!] Think of these two examples:
    1) For years I drove a police car with a Remington 870 mounted against the dash. It had a full magazine & an empty chamber. It was “uncocked” with the safety off. I felt it was very easy to get into action quickly, and NEVER considered it as an unloaded gun.
    2) What if the subject was carrying a single action revolver like the Ruger Blackhawk? All of those who say “you pull the trigger and the gun won’t fire” could make the same argument for a loaded single action revolver, or even for a 1911 that was “hammer down”. I’m sorry, but I do not see any difference between cocking the hammer on a single action revolver and racking the slide on an semi-automatic pistol. Both actions cock the hammer (or striker) and line up a cartridge with the barrel.

    On a final note. The subject in this story does not seem like an example of a responsible gun owner who will help the cause.

    • Chris Baker August 28, 2017, 9:58 pm

      The idea that a firearm is unloaded if it has cartridges in the magazine but not in the chamber, is so ludicrous that I was sure the article writer must have made a typo.

  • joe martin August 18, 2017, 2:28 pm

    Just across the border in New Mexico, an unloaded firearm is not considered a “deadly weapon”; common sense from a blue state, who’d a thunk it?

  • DaveGinOly August 18, 2017, 2:03 pm

    Appeals Court Judge Philip Espinosa disagreed. He ruled in the unanimous majority opinion that even though other states have chosen to define the term “loaded,” the Arizona legislature did not, which calls for the use of the “common sense” definition of “containing ammunition.” The term, therefore, is not unconstitutionally vague.

    “Common sense” would indicate that the difference between a loaded and an unloaded firearm is that the former can be fired and the latter cannot be fired. A firearm with an empty chamber is incapable of being fired, and is therefore not “loaded.” Compare a semi-auto to a revolver and the difference becomes obvious. A revolver with ammunition in its cylinder is loaded because there are rounds in the firearm’s chambers. Revolvers are inherently different from semi-autos in this respect, because semi-autos may have rounds on board while having none in the gun’s chamber. A revolver with rounds is always loaded, a semi-auto with rounds is not.

    Johnson is correct – the law is void for vagueness. The fact that other States took the time to specifically define “loaded” is an indication that the lawmakers in those States understood that the term was not “obvious”, and the fact they adopted different definitions is an indication that there can be disagreement concerning the meaning of the term.

    • Ron August 18, 2017, 5:34 pm

      Unfortunately, all that matters in the practical sense is what the judge in his case thinks. He’s wrong, but he’s still “da Judge”.

  • deanbob August 18, 2017, 2:02 pm

    If the gun is loaded, then it should be capable of being fired by pulling the trigger (either with the safety off or grip safety depressed). I hope the defended appeals to a higher and more reasonable court – (SCOTUS, if necessary).

  • Mark August 18, 2017, 1:10 pm

    Treat every weapon as if it were loaded.

    Keep your finger straight and off the trigger until you intend to fire.

    Never point your weapon at anything you don’t intend to shoot.

    Keep your weapon on safe until you intend to fire.

    • paul behe August 18, 2017, 7:09 pm

      yes you have quoted some law enforce /military rules .
      just remember fire arms are used for more then personal protection and a ink pen used in a leathal maner is consider a weapon.
      so when quoting fire arm safety rule use a non human killing approach.
      1. always point the muzzle in a safe direction
      2. always keep your finger off of the trigger until ready to shoot
      3. always keep firearm unloaded until ready to use .

    • Wayne August 19, 2017, 4:23 pm

      My truck bed is loaded even though the fricken boxes are sitting on the ground?!?! What about load the groceries in the car? Yea, you can load the magazine, but the chamber isn’t loaded until a cartridge is in it!

  • Charlie August 18, 2017, 10:44 am

    I agree a firearm is not loaded unless a shell is in the chamber. Without the shell being placed into a position to be fired, the firearm is just a boat anchor. A knife without a blade is just a handle. This judges decision is stupid! A car without fuel is not going anywhere.Again we have non thinking people making judgements and laws.

    • Douglas August 18, 2017, 11:38 am

      Poor argument. A knife without a blade requires a lot of time and effort to fix, a car without fuel requires a lot of effort and time to get ready to drive but a gun with a loaded magazine only requires a second and a pull of the slide to load and be lethal.

      • Vlanderchev Doolittle August 18, 2017, 1:13 pm

        Only takes 1 second to get stabbed, hit over the head with a baseball bat, or ran over. A gun without a bullet in the chamber is not capable of serious bodily injury. In fact, a car, baseball bat or knife are ready to cause serious injury 100% of the time than an unloaded gun. I bet you more people are killed by cars in school zones than by guns. Check the numbers…

      • DaveGinOly August 18, 2017, 1:46 pm

        “…a gun with a loaded magazine only requires a second and a pull of the slide to load and be lethal.”
        You just admitted that a gun without a round in the chamber is not loaded. Only a loaded gun will fire. If you must “pull the slide” to make a firearm subsequently capable of firing, then it was not loaded prior to the slide being pulled. The question raised in the court concerned the definition of “loaded firearm,” not how quickly or easily a firearm could be loaded.

        • Daddio7 August 18, 2017, 8:21 pm

          Grey areas, can a pocket knife cut you? If a cop can flick it hard enough to get the blade out it is a weapon. If a cop can rack the slide and chamber a round a gun is loaded. We live in the cops’ world so an unloaded gun has no round in the chamber and no magazine inserted.

      • Ron August 18, 2017, 5:38 pm

        I can retrieve a magazine from my pocket, and load it into an unloaded (by any definition) gun, charge and fire it in under 5 seconds.
        Takes about 1-1/2 seconds to fire it if the mag is already in the gun and all I have to do is charge it.
        Damned little difference, except in the eyes of the law, and a distinction with damned little difference.
        But that doesn’t mean it’s loaded when ALL the ammunition is completely separate from the gun. The judge is completely wrong. But as I said above, he’s still “da Judge”.

  • J Evans August 18, 2017, 9:34 am

    I agree. A gun is not technically “loaded” unless a live round is chambered. Not just because the magazine is present & containing live rounds. Same as the dog/teeth analogy. That is unless the statute spells out what constitutes “loaded” as apparently several other states have chosen to do.

  • Dave August 18, 2017, 9:22 am

    What’s next? A loaded bow – because there are arrows in the quiver?

    I wonder if the state can somehow be forced to define ‘loaded’. It would seem only logical that the a gun would have to be ‘capable of being fired’ to be ‘loaded’, and you can’t fire a gun until you ‘load’ the chamber – even if there is a full magazine in place.

  • Mr. Sparkles August 18, 2017, 8:47 am

    The honorable Philip Espinosa and his partners in crime are either showing their personal prejudices or their ignorance of firearms with this ruling. I suspect the former but it could be both. While one should always follow the safety and common sense rule that every gun should be handled as if loaded, for the situation stipulated it is not loaded unless there is a round in the chamber. Similarly, a dog is not guilty of being aggressive simple because he has teeth. This is the same kind of stupidity that suggests that guns kill people. Judge Philip Espinosa and his band of merry men got it wrong and in so doing are a shame (or is it sham?) to their profession.

    • Dave August 18, 2017, 9:24 am

      Honorable? With a twisted ruling like this you may be giving credit where it is not due! Was this judge a democrat appointee? That would explain his decision.

  • Mike D August 18, 2017, 8:32 am

    Isn’t this just rule 1? All firearms are always loaded? 😉

    • Tom B August 18, 2017, 9:55 am

      Sorry Mike but you are incorrect. The rule is “Always treat the gun as loaded”. With most guns, they look the same when loaded or unloaded. That’s why another rule is “Always point the gun is a safe direction”.

      • Ron August 18, 2017, 5:39 pm

        I think the “wink” smiley should have told you he was kidding, guys. He obviously knows that.

    • Dennis M August 18, 2017, 11:08 am

      You always “treat a gun as if loaded”. To clear this type gun you remove the magazine then rachet the slide to clear the chamber, this ensures the gun is unloaded. My opinion, for what it’s worth, is a gun is not loaded if there is no round in the chamber. It could still be considered “unsafe” if the magazine is loaded.

  • Mauser6863 August 18, 2017, 8:22 am

    As an Arizona resident, this law is poorly written and as applied, like many laws, is done so, very selectively.

    Arizona is a Constitutional Carry State and no permit is needed to carry a firearm openly or concealed upon your person. Having a state issued CCW does grant some advantages; being able to carry in an establishment that serves alcohol, no NICS when buying a firearm and exemption from the Federal “Gun Free Zone” law, sister state reciprocity, etc.

    Despite this, Arizona requires that all non-police officers, unload their firearm before entering schools grounds and keep said firearms secured in your locked vehicle, out of sight. So basically, the law is telling parents, to unload their firearm before dropping off their kids in the morning, reload it for self-defense and then unload it again when picking up your kids after school.

    Needless to say, this is a ridiculous requirement and most parents are unaware of this law. People just keep their guns out of sight and loaded, usually in their vehicle, when on school grounds. I can’t imagine how potentially dangerous it would be to actually load and unload your firearm twice each day. If this law was followed (and it isn’t), it simply puts people and their children in needless danger, for ZERO benefit. Criminals by definition don’t follow the law and disarming the law abiding makes no sense.

    Schools have a right as property owners to control their environment and to restrict access, prohibit items, etc. The state and the schools should be fine with loaded, out of sight guns, left in the vehicle. the law needs to be changed to reflect reality and to not be a “Trap” for the otherwise law abiding.

    Stupidity, in the case of these two individuals, mentioned in the article, shouldn’t be a crime. A few years ago, we had a similar incident at my kids old school. Two adults got in an argument on school grounds. One challenged the other to a fist fight, to be held down the street in the Walmart parking lot. When the one parent failed to show and simply walked home instead, the other party tracked them down and ran them over with his vehicle, killing him. Just like no law could be written to have prevented this incident, the gun law in question needs to be changed to protect those authorized by law from needless prosecution.

    • Ken August 18, 2017, 11:54 am

      Exemptions from Federal gun free zones?
      Do you mean Post Offices, Miltary bases etc??

      • Ron August 18, 2017, 5:41 pm

        There’s no reason those places should be prohibited for persons legally allowed to possess a firearm either.
        But they are, and as responsible gun owners/carriers, we have a responsibility to at least know the law if it’s reasonably defined. In this case, the gun owner was doing what he thought he was required to do.

      • Mauser6863 August 21, 2017, 12:31 pm

        Federal Law prohibits anyone for having a loaded firearm with 1,000′ feet of a school (Clinton era “Gun Free School Zone Act”). This includes both public and private schools and likely day care facilities. For me, in metro Phoenix, carrying a loaded gun daily, I would be violating the law constantly, just by driving my car around town. Having a state CCW allows me to skirt this law. The law also exempts people who live within a 1,000 feet of a school. Stupid Federal Law, that does nothing to protect children and the community, but it is still on the books.

        Schools still can prohibit weapons on their property and most do so. Arizona allows you to have an out of sight, unloaded gun, locked in your car, when it is parked in the school parking lot. A state issued CCW does not allow you to carry a loaded gun on school property or carry an unloaded gun on your person, while on school grounds.

        All Court Houses are controlled by the presiding Judge and state or federal law respectively. In state court buildings, police officers may or may not be required to secure their firearms on court property. Usually, if the officer has “personal court business”, divorce, civil matter, etc. they must secure their firearm in the lockers provided. If they are attending court in an official capacity, in or out of uniform, as a witness, etc. they are usually able to carry inside the court building.

        Federal law now allows you to leave your gun in the car, when parked in a U.S. Postal Service Parking lot. No one, other than state or federal law enforcement in allowed to carry inside the “Holy Ground” of the Post Office, even with a state issued CCW.

        Military bases have their own rules and also are subject to the orders of the base commander. These rules are what disarm are military personnel and contributed to the death toll at Fort Hood. Drive a tank all day, but don’t carry a pistol on base at the McDonald’s. DOD Uniformed Police, on duty Military Police and the FBI are usually the only ones who are allowed to carry loaded weapons on a military base.

        State issued CCW permits have no validity on most federal property, except for Parks (but not inside park buildings) and Post Office parking lots, etc.

        There are so many gun laws it is very hard for an honest person to do the right thing. Criminals don’t care about the law.

    • Ron August 18, 2017, 5:44 pm

      Unless the “school” was a private one, they’re not property owners. The municipality is, and I’m sorry, but a school should never be required to be less safe than a street corner just because responsible and legal gun owners are not allowed to defend themselves there. It’s a bullshit, feel-good law that does nothing except disarm the good guys, leaving the bad guys to do whatever they please.

  • Anthony Hill August 18, 2017, 7:19 am

    Johnson is a bad representative of gun owners/CCW.

    • Wayne R Cook August 18, 2017, 7:46 am

      He should be stripped of his weapons…not a neighbor I want.

      • Ron August 18, 2017, 5:48 pm

        By what provision of the Constitution? He may be, if the offense was considered a felony, but from the punishment issued, it sounds like it wasn’t.
        So on what grounds would you do that?
        We have to be careful not to fall into the “He can’t have guns because he scares me” bullshit of the Left.
        No one should lose their right of self-defense because of a poorly written law interpreted by a stupid judge, nor because you, or someone else, thinks they wouldn’t like for him to be their neighbor.
        We don’t even know what he did or said. He may have said, “Driving like that will get you killed”, rather than “… get you shot.”
        He may have been referring to a traffic accident. Maybe not. The other driver may well have interpreted it the other way, but who knows what he said.

  • Forrest Adcock August 13, 2017, 5:30 pm

    If dudes can give birth now, why can’t unloaded pistols be loaded too?

  • IYearn4nARnCali August 12, 2017, 3:00 pm

    You take the temporary honor of being even more backwards on gun rights, Arizona, than California!
    California judges, especially the clowns of the 9th Circus will not be happy to see their insanity challenged by this “loaded” ruling and are probably busily preparing another infringement on the docket to retain the crown of utterly stupid robed buffoons.

    • SteveK August 18, 2017, 5:55 am

      lol!

    • BigDon August 18, 2017, 9:43 am

      You’ve got it wrong this time, IYearn – cal goes even farther than AZ! If you have a gun in your car AND ammo in the car and neither of them are in a locked container then you have a loaded gun! Welcome to California! I lived there 35 years and fianally had enough and left.

      • mauser6863 August 18, 2017, 10:22 am

        Correct, it is called “Constructive Possession” and it has been that way for a long. long time.

        Congratulations on moving. I’ve been in AZ now for 5 year and my best friend just sold his house and bought on in AZ. California pushed him out, so another state will get the benefit of this labors and taxes, etc.

        I never realized how bad it was in California, not really, until I moved to a free state. The general cloud of tyranny pervades all aspects of life. Its difficult to describe until you are free from it.

        • DaveGinOly August 18, 2017, 2:15 pm

          Your are correct to label the CA action “constructive possession.” But it’s important to note that is not what is going on in this case. The AZ law rejects the concept of constructive possession because it specifies conditions of constructive possession under which the carrying of a firearm onto school grounds is made legal. So you can have all the “parts” necessary to have a loaded gun in your possession (constructive possession), yet not be in violation of the law by having them in a specific configuration (“unloaded” in fact). Unfortunately, the court doesn’t understand what it means for a firearm to be loaded in fact.

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