Mike
Site Co-Founder
imported post
Embedded here is the DEC 08 LA DA memo on open carry: http://opencarry.mywowbb.com/view_topic.php?id=19993&forum_id=12
And now here is the San Diego DA memo on open carry: [url]http://www.hoffmang.com/firearms/carry/SD-DA-OC-Memo-2009-03.pdf[/url](opining that "LA DDA Devallis Rutledge" was mistaken on power to run serial number and ID checks)
Below is my email to its author - his response to me today? "Can't get everything in a three page memo."
OpenCarry.org is happy to see that Calif. DAs are starting to get it right, one county at a time!
--
Subject: Your open carry memo
Date: 4/4/2009 12:41:44 A.M. Eastern Daylight Time
To: Robert.Amador@SDCDA.org
Dear Mr. Amador:
Mike Stollenwerk here, co-founder of OpenCarry.org.
Sorry to interrupt you this evening by calling what might have been your personal cell phone, I thought I was just going to leave a voice mail after hours at your office.
I just wanted to let you know that I and others appreciated very much your recent open carry memo at [url]http://www.hoffmang.com/firearms/carry/SD-DA-OC-Memo-2009-03.pdf[/url]which importantly (1) got the loaded/unloaded for incorporated/unincorporated areas distinction correct (even though you did not cite to People v. knight), and (2) pointed out that the LA DA opinion citation of Hiibel was wholly erroneous. Thank you!
I did have three small concerns to bring to your attention when you had a moment:
1.Unlike you assertion thatlocalities can ban open carry by local ordinance, I think the local regulation of gun carry isat most agray area in California under the doctrine of implied preemption. See Fiscal ("If the preemption doctrine means anything, it means that a local entity may not pass an ordinance, the effect of which is to completely frustrate a broad, evolutional statutory regime enacted by the Legislature.").
Within the meaning of Calif. state constitutional preemption, Section 12031 is certainly "a broad, evolutional statutory regime enacted by the Legislature," as noted by the 1968 AG opinion, and even better, the inclusion of a local option for Counties to ban loaded carry by banning shooting, thus invoking the doctrine of expressio unius est exclusio alterius.
Accordingly, the General Counsel for the Calif. Peace Association at [url]http://www.hoffmang.com/firearms/carry/CPOA-Client-Alert-12042008.pdf[/url]has opined that he does NOT think local open carry bans would be enforceable: "we doubt that a local ordinance could be enacted to close this gap by, for instance, making it a violation of a city’s municipal code to carry an unloaded and unconcealed firearm in public. In this regard, please note Article XI, §7 of the California Constitution, which provides that:
A county or city may make and enforce within its limits all local, police, sanitary, and other ordinances and regulations not in conflict with general laws."
Please think this over beforelocal legislators get ideas or your officers find some old forgotten open carry ban and try to enforce it. If you are going to enforce such local open carry bans,I think you should serve the open carry community notice of this fact first so that the types of uncomfortable police-citizen interactions you worry about in your memo are headed off before they happen.
2.You also might want to consider letting folks (and police officers) know that the constitutionally suspect Calif. school **zone** gun carry ban hasa knowledge element and is not a strict liability offense: It's only unlawful to open carry agun in a school zone if the open carrier carried "a firearm in a place that the person knows, or reasonably should know, is a school zone." Officers should be able to articulate and document facts upon arrest of any open carrier in a school zone supporting this statutory knowledge requirement.
3.Finally, I'm not so sure it's correct to say the law is "gray" re open carry in California - People v. Clark and People v. Knightalong with the 1968 AG opinion cited by Knight appear to cover the law of open carry in California such that there really should be no mystery - California is just like most states, see map at [url]http://www.opencarry.org/opencarry.html[/url], where open carry requires no license, but unfortunately in Calif., does have the constitutionally suspect loading ban in incorporated areas and portions ofunincorporated areas where shooting has been prohibited by the County (and that very odd loading inspection protocol).
But don't get me wrong, your opinion is greatly appreciated for clearing the air on that erroneous Los Angeles DA opinion.
Take care,
Mike Stollenwerk
co-founder, OpenCarry.org
Embedded here is the DEC 08 LA DA memo on open carry: http://opencarry.mywowbb.com/view_topic.php?id=19993&forum_id=12
And now here is the San Diego DA memo on open carry: [url]http://www.hoffmang.com/firearms/carry/SD-DA-OC-Memo-2009-03.pdf[/url](opining that "LA DDA Devallis Rutledge" was mistaken on power to run serial number and ID checks)
Below is my email to its author - his response to me today? "Can't get everything in a three page memo."
OpenCarry.org is happy to see that Calif. DAs are starting to get it right, one county at a time!
--
Subject: Your open carry memo
Date: 4/4/2009 12:41:44 A.M. Eastern Daylight Time
To: Robert.Amador@SDCDA.org
Dear Mr. Amador:
Mike Stollenwerk here, co-founder of OpenCarry.org.
Sorry to interrupt you this evening by calling what might have been your personal cell phone, I thought I was just going to leave a voice mail after hours at your office.
I just wanted to let you know that I and others appreciated very much your recent open carry memo at [url]http://www.hoffmang.com/firearms/carry/SD-DA-OC-Memo-2009-03.pdf[/url]which importantly (1) got the loaded/unloaded for incorporated/unincorporated areas distinction correct (even though you did not cite to People v. knight), and (2) pointed out that the LA DA opinion citation of Hiibel was wholly erroneous. Thank you!
I did have three small concerns to bring to your attention when you had a moment:
1.Unlike you assertion thatlocalities can ban open carry by local ordinance, I think the local regulation of gun carry isat most agray area in California under the doctrine of implied preemption. See Fiscal ("If the preemption doctrine means anything, it means that a local entity may not pass an ordinance, the effect of which is to completely frustrate a broad, evolutional statutory regime enacted by the Legislature.").
Within the meaning of Calif. state constitutional preemption, Section 12031 is certainly "a broad, evolutional statutory regime enacted by the Legislature," as noted by the 1968 AG opinion, and even better, the inclusion of a local option for Counties to ban loaded carry by banning shooting, thus invoking the doctrine of expressio unius est exclusio alterius.
Accordingly, the General Counsel for the Calif. Peace Association at [url]http://www.hoffmang.com/firearms/carry/CPOA-Client-Alert-12042008.pdf[/url]has opined that he does NOT think local open carry bans would be enforceable: "we doubt that a local ordinance could be enacted to close this gap by, for instance, making it a violation of a city’s municipal code to carry an unloaded and unconcealed firearm in public. In this regard, please note Article XI, §7 of the California Constitution, which provides that:
A county or city may make and enforce within its limits all local, police, sanitary, and other ordinances and regulations not in conflict with general laws."
Please think this over beforelocal legislators get ideas or your officers find some old forgotten open carry ban and try to enforce it. If you are going to enforce such local open carry bans,I think you should serve the open carry community notice of this fact first so that the types of uncomfortable police-citizen interactions you worry about in your memo are headed off before they happen.
2.You also might want to consider letting folks (and police officers) know that the constitutionally suspect Calif. school **zone** gun carry ban hasa knowledge element and is not a strict liability offense: It's only unlawful to open carry agun in a school zone if the open carrier carried "a firearm in a place that the person knows, or reasonably should know, is a school zone." Officers should be able to articulate and document facts upon arrest of any open carrier in a school zone supporting this statutory knowledge requirement.
3.Finally, I'm not so sure it's correct to say the law is "gray" re open carry in California - People v. Clark and People v. Knightalong with the 1968 AG opinion cited by Knight appear to cover the law of open carry in California such that there really should be no mystery - California is just like most states, see map at [url]http://www.opencarry.org/opencarry.html[/url], where open carry requires no license, but unfortunately in Calif., does have the constitutionally suspect loading ban in incorporated areas and portions ofunincorporated areas where shooting has been prohibited by the County (and that very odd loading inspection protocol).
But don't get me wrong, your opinion is greatly appreciated for clearing the air on that erroneous Los Angeles DA opinion.
Take care,
Mike Stollenwerk
co-founder, OpenCarry.org
