San Diego settles unloaded-open-carry case



 

In case anyone has missed this news story, San Diego has settled in an unloaded-open-carry case.  (Case financed by list member Gene Hoffman's CalGuns Foundation, and handled by list member lawyer Jason Davis.)



Here's the news release from CalGuns:



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.

A relatively positive outcome, very good!

I'm all for this, but that 35K comes out of my taxes.

"We do not encourage Unloaded Open Carrying of firearms in urban areas at this time,” said Gene Hoffman, Chairman of The Calguns Foundation

Good lawsuit, maybe if the cops knew the laws we wouldn't have situations like this.

No.  Its the same BS where the police always say "People could always call 911 and let the police handle things."  Its pure CYA.

Now, someone can't say "Well the CalGuns guys said it would be super swell to carry in downtown LA, but I got arrested for it.  I'm going to sue CalGuns..."

It comes out of his taxes too, and it comes out of anti-gun folks taxes.

If I were that guy and I was not in dire need of the money. I would take at least some of it and buy some guns and hold a free gun raffle.

And hopefully goes toward fighting the other antigun laws you have.

Good point.  If this guy is an activist type and uses this money to further our cause, then I'm all for it.

I'm not familiar with the Mission Beach area, but around here I can see the law checking this out.

Before they make an arrest, however, they should be familiar with the statute. Poor training, IMO.

For those worrying about the 35k loss to the taxpayer,



don't blame it on Wolanyk. I would think he would use the money to reimburse the legal team that backed him.

Actually the city's insurance company will end up paying it.

All good guesses, but not true.
The people in the know at CalGuns have determined that UOC is just not the right way to go about expanding RKBA in CA at this time.  Believe me, there are VERY good reasons for being strategic about this.  Look up "Gary Gorski" if you don't believe me.  We have a saying on CalGuns when somebody screws up a RKBA case and it results in bad precedent: "They Gorski'd it."
CGF is VERY hard at work restoring our rights; there are many lawsuits in the pipeline right now.  CGF is directly involved with current cases involving CCW and the definition of "sensitive areas" and "public" when it comes to the bearing of arms.  
It's also very close to doing some sort of legal jiu-jitsu in regards to magazine capacity limits and is in the late planning stages of getting rid of the AWB.
And please remember that there are plenty of Constitution-loving Americans in CA guys, we're with the rest of you!
 

You live in San Diego?
I would be on the horn with your elected officials questioning why they dont train the city employees in the jobs they preform...

And another case of "ignorance of the law is no excuse" gets a pass for LEOs.

SOP for some of the UOC crowd. They are out looking for exactly this type of payday.

Fortunately the cops are better trained since this issue came about and now know to look past 12025 and 12031 and instead look at 629, 537e and other related sections.

So does Nancy's and Arnold's paychecks!!! Ha!

His money.  His choice.

Better to go to this guy than to the undocumented class................... jus sayin.

I guess 35k is cheaper than what it would take to better train the police.

Hawt?
 

And it would never happen if the police knew the laws they were enforcing.
 

Like I said, the cops are much better trained on this issue than in the past. Both what not to do and what to do.

San Diego PD has cops who do not know the law and arrest people, They get sued over it and cost the tax payers and additional $35K.

A one time thing? makes me wonder.

Maybe a few more cases will come out after this one.

Well, stop electing shitheads and you won't have this problem. Elections have consequences.

Should have cost them much more.

Maybe the guy will re-donate his settlement back to the Calguns Foundation and will send it through G-pal?

Perhaps out of an insurance policy? (The premium for it would still come from your taxes though.)





Try this.  Oregon will welcome you.

Perhaps future UOC settlement can be paid in used BMW's.

They can detain me for two hours and release without charges for $35,000.00 any day.

For all intensive porpoises I see it, what you there did.  

Would have been better if he had also been granted a Concealed Carry permit as part of the settlement.



 

35k well spent.  This will be a net positive for gun owners.

How much does it cost each year in CA for all the illegals and baby-mommas?

HAHA!

You should throw that idea at them for future cases. It has both irony and political appeal.



 

Why don't you tell that to the fuckin' cops that violated his rights?  



 

This is a positive step, but it would be much more effective if at least some financial penalty was felt by the poorly trained officers and chief involved. How many times have we heard, "Ignorance of the law is no excuse..." There's nothing like hitting a dipshit in the ass pocket.. Hopefully the 'tard thugs in Madison, WI will get a bitch slap, too.

Oh, you can bet they got a good ass chewing.  If they city's insurance had to pay out for this, or worse if this came out of the city's budget, those officers got a good ass chewing and were probably told "it better not ever happen again!"



 

But did it go on their Permanent Record(tm)?



 

For something like this I wouldn't be surprised, especially since there was a "Finding of Factual Innocence, admitting no reasonable cause for his arrest existed."  They were found in court to have no probable cause to have arrested him.  With the economy being as tight as it is I'm sure even San Diego doesn't like the idea of shucking out $35k for for something like this.

 

So does the salary of either poorly trained officers, or those anti-gun officers who know the law but think that their opinion is absolute.  

Then call the PD and tell them to actually understand the laws they enforce to avoid the problem in the future!

Good first step, what's next?

Unloaded gun = unarmed.





 

How about this then, if you can't articulate and cite the relevant statute for any interaction in which you're about to initiate then you don't get to do it.





Seems almost fair.



ETA: And I don't mean after the fact, but BEFORE you initiate the interaction.





 

It is not possible to teach cops every law, and expect them to know all relevant case law.



But they will now know this one.