SAN DIEGO PAYS $35,000, AGREES TO FINDING OF FACTUAL INNOCENCE

FOR IMPROPER “UNLOADED OPEN CARRY” ARREST

San Carlos CA (September 29, 2010) - The City of San Diego will pay $35,000 to gun rights activist Samuel Wolanyk for his improper arrest. The San Diego Police Department also granted Mr. Wolanyk’s petition for a Finding of Factual Innocence, admitting no reasonable cause for his arrest existed.

The lawsuit – financially supported by The Calguns Foundation, Inc., and brought by attorney Jason Davis of Davis & Associates – sought to ensure San Diego properly trains its officers to deal with law-abiding gun owners.

“We do not encourage Unloaded Open Carrying of firearms in urban areas at this time,” said Gene Hoffman, Chairman of The Calguns Foundation. “But we believe the civil rights of gun owners must be defended to the utmost.”

Nearly two years ago, “open carry” activist Wolanyk wound up looking down the barrels of two police handguns when San Diego Police officers Jody Kinsley and Troy White responded to a call of a man wearing a kilt, with a holstered gun, in San Diego’s Mission Beach area. The officers immediately exited their vehicles on arrival at the location, drew their firearms, and ordered Mr. Wolanyk to the ground.

The officers quickly determined the firearm was unloaded, had no magazine in it, with no round in the chamber, and was thus in full compliance with California law. The firearm was unloaded even though Mr. Wolanyk did separately possess loaded magazines carried in an additional pouch attached to his belt (a completely lawful activity).

Until that day, these officers had never heard of the burgeoning Unloaded Open Carry movement, in which persons entitled to possess firearms exercise their right to lawfully carry unloaded, holstered handguns (though some onerous geographic limitations do apply). One other key legal restriction on open carry in California law also exists: people must give up their Fourth Amendment rights and submit to law enforcement examination of the firearm to determine if it’s loaded. In Wolanyk’s case, however, the officers weren’t performing a loaded firearm examination; in the officers’ minds, they were responding to a “man with a gun” call and acting accordingly.

After San Diego Police Sergeant David Kries arrived at the scene, Mr. Wolanyk had hoped the officers’ errors would be competently rectified and he would then be free to go. But Sgt. Kries showed he too didn’t understand California’s complex gun laws, and arrested Mr. Wolanyk for carrying a “loaded” firearm – in direct conflict with both prior case law (People v. Clark) and common sense, which requires ammunition to be in a position from which it can be fired in order for a firearm to be considered loaded. Mr. Wolanyk was taken to San Diego Police headquarters, where it was determined that he violated no law. Two hours later, Wolanyk was back at Mission Beach with Officer Kinsley handing him back his firearm and ammunition. Neither an apology nor an explanation of why the Department hadn’t properly trained their officers was provided.

“If they’d just apologized and said that they would look into training their officers on how to deal with law-abiding gun owners, I would not have felt compelled to file my lawsuit,” said Mr. Wolanyk. “It’s really about public safety for everyone, including those lawfully carrying firearms.”

Now, not only has San Diego paid Mr. Wolanyk for their actions, but they have since supplemented their training as well.

The rise of the Unloaded Open Carry movement in San Diego and Wolanyk’s arrest caught the attention of California Assemblywoman Lori Saldaña, whose proposed “fix” to police training deficiencies was instead to draft a bill taking away the ability to “UOC”. Saldaña’s proposed “Open Carry” ban failed passage this legislative term, but is nearly certain to reemerge this next term.

As long as Unloaded Open Carry activities are lawful, San Diego Police Officers and other law enforcement agencies will have to respect the civil rights of these law-abiding citizens.



http://www.calgunsfoundation.org/

Would be nice to read about this from a media source.

SDPD is probably mum but you could file a public records request....
not sure if this would make the news unless bigger $$$ - we'll see...

Bill Wiese
San Jose

Channel 2 news just did a story about an "Open Carry" group that will be coming to an event with their firearms... Missed the city it was in.

I'm not really a big fan of open carry myself...but this is an outstanding victory and precedent.  Good job CGF!

"CGF Defends Open Carrier in San Diego: SDPD Pays $35K, agrees to Factual Innocence"

Wasnt he the petitioner and SDPD the respondant? If so, "defends" is the wrong term as CGF was on offense, not defense.


ETA: Dupe.
http://www.ar15.com/forums/topic.html?b=1&f=5&t=1096636

Wow, I just spent a few hours reading up on the whole Gpal, Ben Cannon, and Galguns drama on various sites. Even so, I sincerely hope the Gpal issues are rectified, the gun community needs a payment service that doesn't discriminate.

But note that there is a Factual Finding of Innocence involved here, which is certainly a defense and not offense element.  Any
contact/arrest by LE can be seen as a negative - esp for certain hiring issues - and it takes an FFI to really "clean things up".  
So certainly from that aspect, it was indeed a defense.  

I suppose in the big picture, perhaps,  all CGF defenses have significant elements of offense.  (It would be much cheaper to
AB2728 OLL-vs.-AW cases and just buy the guy a new gun if all we wanted to do is get the aggrieved party to a 'happy position'.)




Thanks for the pointer, don't hang out in GD much.

-Bill Wiese
San Jose CA

Absolutely.

But Ben hasn't been listening to advice from various parties for a long time and continuing operational patterns just digs deeper holes.

-Bill

Though I'm not a big fan of OC and Lori Saldana but kudos to Mr. Wolanyk and Calguns Foundations Inc. in showing the current CA OC law and righting a wrong done to the gentleman.  Don't get me wrong if someone wants to open carry I have no problem with it.  My preference is CC.

 Bwiese thanks for the heads up.

a kilt?

You know what..?     Maybe the SDPD took a peek under his kilt, and saw that in fact, he was breaking the law by carrying a concealed weapon.  

Smart man.

Tacti-Kilt for the win.  I kid you not, they have 'em now with MOLLE and in Crye Multi-cam.

Q:  What you wearing under that kilt?

A:  Your girl-friends lip stick...

I think it's great that the 'authorities' got a little wrist slap about our firearms rights, but I'm still shaking my head over what I just read in Stars and Stripes-$69 million in California welfare cash cards squandered in Las Vegas, cruises and abroad.  I hope the time is right for 2A advocacy groups in CA to kick-ass and un-neuter some very unreasonable prohibitions on magazine capacity, AW characteristics and 'safe handgun' rosters.

How about from the "horse's mouth"?

http://ia311025.us.archive.org/2/items/gov.uscourts.casd.308072/gov.uscourts.casd.308072.25.1.pdf


-Bill

Has CGF ever supported a gun owner with a clean background? There seems to be very colorfull pasts with the majority of CGF "clients"  In those cases that the gun owner had a clean background there seems to be non-gun charges in the same case.

Would we benifit more politically if we had defendants with clean backgrounds in straight gun only cases. No marijuana or steroids, no prior civil judgments, no martial arts novelty weapons, no suspended licenses, ect? Just a good guy caught with a straight firearm violation?

I'd say most of the 30+ "OLL is an AW - but no!"  cases we've handled are generally clean or 'clean enough'.  

Sometimes (and my memory is awry right now) there may have been hunting lands issues or a negligent
discharge that led to discovery of an EBR.    

Other times, it's traffic stop.  Yes, there is a profile - usually they're under 28 with rock'n'roll tats and perchance
driving the proverbial lowered purple Honda with a cracked windshield.   [Contrast that with someone like me with
short hair, pressed shirt, Rolex, and classical music on the radio even though during the last traffic stop I had 6 or
7 guns with me and no issues  ;-) ]

Bottom line, if we're gonna stop further regulation or cases we need to nip 'em in the bud.  

I would expect that sometime we may have to deal with an unplesant case - where a gun used in a crime was
alleged to be an AW for purposes of sentence enhancement - and we have to say "No, you can't."   This would
less likely be an OLL nondetachable mag AR situation than, say, "SKS" being misconstrued, or muzzle brake being
confused with flash hider.   Part of the strategy is that any technical gun matter that is defendable may well be
defended - so muchso that DAs get tired of the gun BS and focus on other matters.  

There have been similar several cases we couldn't fund defenses for (um, loaded unlocked pistol also - though in
trunk -  and felon along for ride - though the felon didn't know about the guns) - and even then a few phone calls
helped to "solve problems".   We're always willing to waste a few bucks on phone calls (from lawyers) to
informally resolve a situation.

I myself as well as other CGFers (bringing lawyers in if necessary) have talked to PDs with AW cases to help turn
them into AB2728+small fine/lose-the-gun situations.   Many DAs didn't know they had a "lesser option" available.  
We like these because we can educate a PD and he can spread the word.  PDs are often way overworked and
they'd like a win / no-file every once in awhile just to make their stats slightly more balanced.



Again, we've had quite a few of those.   Perfect example was Sonoma Firearms being attacked by DOJ  ("Alison's
last gasp") for alleged AW sales.   Another case in an E.Bay city went all the way and he got factual funding of
innocence and bail refunded.

But we're gonna have to stop being shy a bit now that RKBA is a civil right.  Yeah we obviously won't defend a
rapist etc.  but we want "continuous occupational therapy" for DAs / Dept AGs so that they get tired & bored with
any technical-only gun case.    

Bill Wiese
San Jose CA

He got arrested again. This time allegedly following stripping to his undies in the airport.  Allegedly using one of CGF lawyers for his criminal defense.

is this guys occupation civil plantiff?

Dayam.  Is he the poster boy for civil suits?

BTW, better him than I.

"Allegedly? No.  We need to restate his representation.  I am puzzled why anyone thinks this is a CGF case or received
any funding from CGF, etc.   There is no remote 2nd Amendment issue here.   Yes, Wolanyk is using Jason Davis as his
personal attorney  to represent him in this current matter.   This however is in no way a "CGF case" and Jason Davis'
representation is wholly based on/thru  his own private practice which extends to issues & clients far beyond CGF
matters.  



Wolanyk does seem to enjoy the confrontation.  

That being said, it prob. behooves him to be represented again by the same lawyer that's still in the press for getting
a nice payout from SDPD for their idiocy.  

I must admit I too like to see the useless TSA confronted.  I'd probably pull that  crap too if I didn't have something moire
pressing to do (i.e, get to my destination - and when I'm flying I usually travel with (legal, unloaded, checked)  firearms.  
TSA is just a gov't employment program these days and I don't think they could catch anything but the most drooling
turbaned Abdul around that's smeared hmself with a huge amount of nitrate residue.   It's all just  'security theater" to
please the soccer moms and make them think something's being done.


Bill Wiese
San Jose CA

A man with a gun in a holster may not get a whole lot of attention, but a man in a skirt, with a gun in a holster will. WTF was the guy thinking?