Mercury News: 74-year-old San Jose, CA man arrested for carrying firearm near school

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http://www.mercurynews.com/breaking-news/ci_14020859?nclick_check=1

SNIP

74-year-old San Jose man arrested for carrying firearm near school


By Lisa Fernandez
Posted:12/17/2009 05:38:44 PM PST
Updated:12/17/2009 05:38:45 PM PST

After his brothers watched a newscast about the national movement to carry guns in public, they told Sherman "Tony" Fontano he could do that himself. Two San Jose police officers also said it would be OK.

So this week, Fontano, 74, put his unloaded .357 Magnum into his waistband and took a walk with his girlfriend.

But he was soon surrounded by police who had their own guns drawn. Unfortunately, nobody had mentioned it is against the law in California to walk with a firearm near your neighborhood school.

"I just can't see what I did wrong,'' Fontano told the Mercury News on Thursday. "I'm not a member of anything. I'm not political. I just wish the cops would have told me not to carry it near a school. This was all a total mistake.''

Fontano was arrested Monday after he and his girlfriend took a shortcut through a field at Allen at Steinbeck School. A parent spotted the gun-toting retiree and called police.



Sherman "Tony" Fontano with his dog, 'Magnum', at his San Jose home Thursday... ( Patrick Tehan )
Fontano finds himself caught up in a national controversy known as the "Open Carry Movement,'' whose supporters have been trying to convince the public that carrying a pistol in public is as normal as carrying a pen.

John Pierce, one of the co-founders of http://www.opencarry.org, said the law used to arrest Fontano is one of many arbitrary statutes that violate the constitutional right to bear arms. . . .

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The link to the full story is not working, Mike.

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Arrests for violating arbitrary, capricious and unconstitutional laws in this state is why we have strongly advocated not to Solo OC and "stand down". Above all we have always advised to know your surroundings, be aware of schools, school zones and prohibited areas.

I'm not looking to throw this person under the bus, but he should have educated himself about his surroundings, the laws applying to handgun possession and the risks before strapping up. This is why we tell people who are interested in OC to read, read and read a whole lot more before carrying. :banghead:

The state is looking to make examples of people for exercising their rights in this state and will use everything in their power to do it. I doubt any organization will come to this man's aid. If he somehow does not lose on trial, he should definitely file for appeal after we get the 2nd incorporated.

Remember: There is no RKBA in CA. That is how 626.9 remains standing to this day.

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If it's not marked, then how does one know with any certainty that they are physically within one thousand feet of a school?

If you're driving a car, a "school zone" sign is posted to let you know to reduce your speed during specific timeframes, or when the light is flashing.

If you're going from one political entity to another, a sign is posted along the roadway to let you know you're entering a new town/county/city/whatever.

But, if you cross the street to that "gun free zone" there's nothing to let you know you've just violated the law.

Anyone ever try to get a map from the local police department showing where the "school zones" are?

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....not a reason to stand down OC a reason to fight to get these stupid laws struck donw.

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He will get crucified perhaps.

To the advantage of law enforcement and prosecutors all over the country and to the "impartial interpretation" of a judge, the fact that someone is ignorant of a law or how the law applies in their situation is no excuse for breaking that law. I guess you can look at it as; in the interest of the justice system, someone charged with carrying a gun, unknowingly within 1000 feet of a school (in California at least) is no different from someone demanding money from a bank at gun point unknowing that it is illegal. Everyone SHOULD know it is illegal to rob a bank with any means but that is besides the point. Ignorance of the law is simply no excuse. This poor guy in his mind and perhaps in all of our minds was acting innocently, he just ended up in the wrong place with a gun he should not have had.

California has some draconian gun laws along with a hefty portion of their statutes.

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I have to agree with Fontana on this one. The only practical way to challenge an unconstitutional federal law is to be prosecuted and appeal to the Supreme Court. The federal "gun free school zone" law is blatantly unconstitutional (it violates the tenth and second amendments, the interstate commerce clause application used to justify it is too weak, vague,and indirect to support it), as are nearly all federal gun laws. Granted, Fontana was either ignorant of the law, or unaware of his distance from a school, and certainly didn't set out to snub the gestapo, but he still finds himself in this unfortunate circumstance for no good reason. The intent of Congress when passing this illegal piece of legislation was to increase punishment for people intent on schoolyard violence, not prosecuting inattentive old men taking a walk.

Fontana needs and deserves our support. US v Fontana may become a landmark case in our favor, you never know.

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sudden valley gunner wrote:

....not a reason to stand down OC a reason to fight to get these stupid laws struck down.

Click to expand...

There is a reason to stand down in CA and this article is why.Being a criminal defendant is NOT theway to fight this battle. Heller wasn't criminal it was civil. McDonald and Sykes arealso civil. And there will be more civil cases which will define the Right without individuals being put at risk. It was a CA' OCDO member who contacted the media which resulted in this arrest (yes I knowit is not his fault but our actions can effect others). I'll bet this won't be the last arrest either.

We are months away from possible incorporation. UOC in CA beyond our controlled meet ups is risky. And then even those create Media Exposure and Darwin Arrestswhile keeping our profile up whichencourages bad legislation.We are not in a position yet to haltanynew laws.

God bless that 74 yo American Citizen for following his heart and believing in carrying his pistol but it doesn't have to happen this way. We can winRKBA in CAwithout individuals becoming felons along the way and loosing their rights possibly forever. He was on school property I believeand that 626.9 restriction may very well stand constitutional muster without one having a license.

We will fight these bad laws but it needs to happen on a battleground (civil case) of our choosing for the best results.

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cato wrote:

sudden valley gunner wrote:

....not a reason to stand down OC a reason to fight to get these stupid laws struck down.

Click to expand...

There is a reason to stand down in CA and this article is why.Being a criminal defendant is NOT theway to fight this battle. Heller wasn't criminal it was civil. McDonald and Sykes arealso civil. And there will be more civil cases which will define the Right without individuals being put at risk. It was a CA' OCDO member who contacted the media which resulted in this arrest (yes I knowit is not his fault but our actions can effect others). I'll bet this won't be the last arrest either.

We are months away from possible incorporation. UOC in CA beyond our controlled meet ups is risky. And then even those create Media Exposure and Darwin Arrestswhile keeping our profile up whichencourages bad legislation.We are not in a position yet to haltanynew lawsenforcement.

God bless that 74 yo American Citizen for following his heart and believing in carrying his pistol but it doesn't have to happen this way. We can winRKBA in CAwithout individuals becoming felons along the way and loosing their rights possibly forever. He was on school property I believeand that 626.9 restriction may very well stand constitutional muster without one having a license.

We will fight these bad laws but it needs to happen on a battleground (civil case) of our choosing for the best results.

Click to expand...

I still don't agree. Many laws have been shot down by "criminal defendants". I like that you fight the fight but don't discourage others from fighting the way they want to.

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Blkwdw86 wrote:

Fontana needs and deserves our support. US v Fontana may become a landmark case in our favor, you never know.

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You never know? Defending yourself in our criminal justice system and attempting to vindicate a constitutional right (which is not clearly defined) is a recipe to loose that right for everyone. We do not want to tangle with 626.9 until other basic issues are worked out. This case was avoidable but for some of our over eager members. Yes we want freedom yesterday but we need to fight smart.

I suggest everyone read up on the cases at CGFand chicagoguncase.org


Criminal cases are not the best poster boys for the RKBA, witness Miller's result for over 70 years.

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wewd wrote:

The link to the full story is not working, Mike.

Click to expand...

Works for me.

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sudden valley gunner wrote:

Many laws have been shot down by "criminal defendants". I like that you fight the fight but don't discourage others from fighting the way they want to.

Click to expand...

Sometimes, but it is a nail bitter. Usually criminal defendants have broken the law as itstands, but because of 4th A. evidence discovery, false detention/search issues they go free swinging on the poisonous fruitvine. CA is not yet a good battlefield for OC activists. But the time is coming sooner then later.

I do discourage,but with a heavy heartas I was here with the 1st UOCers.

But I hope I don't disparage as I really want individuals to see the risk/benefits comparison is notin our favor (yet)and that post Heller / pre McDonald/Sykes UOC could be a liability for our cause and potentially disastrous for good law-abiding individuals when faced with our misguided heartless vindictiveCA legislative and legal enemies.

Ido wantOC to contribute positively to Rights restoration in CA. But doing so means crossing many minefields.All I'm asking for is to let the mine detecting engineers (the RKBA legal coalition)go first.

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Well, I took a look at the story, and I feel for the poor guy, but he did not do his due diligence on this one.

This is why you need to read up on the laws before you go off half cocked and end up in trouble.

I hope the DA does not file charges on him, although that seems unlikely.

Anyway, there were several comments to that story, and some people with questions, which I was much obliged to answer. I think that is also a good way to educate and inform the public at large about this issue.

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Mike wrote:

wewd wrote:

The link to the full story is not working, Mike.

Click to expand...

Works for me.

Click to expand...

Link takes me to OCDO home page.

Yata hey

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Guess he didn't get the word from the "Right People".

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This was bound to happen.

After another bit of media attention, the green light goes on in people's heads that if someone says that it is generally legal to do something- take that to mean that it is always legal to do something.

Im not the least bit surprised that a man who has not consulted an attorney and has probably skipped doing any research into the law has wound up getting charged. This is exactly the reason why I have repeatedly warned people to know what the law says and heed it to every crossed 't' and dotted 'i'.

In spite of the fact that this man did nothing wrong in view of our constitutionally cannonized right to self-defense, he made a mistake in judgment in regards to our codified regulation and usurpation of that right. I hope he can dodge jail time, but I wouldnt put it past the prosecuter to make an example out of an elderly man.

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On one hand I really feel bad for this guy. On the other hand who in their right mind goes out carrying a gun IN THIS STATE without doing a little research first?

I don't blame him though, afterall we do have the second amendment (and most of America believes the BoRs applies to them personally). Nor do I blame the NorCal group and the media attention. Even the media got it right for the most part and they did list out the 1000 ft GFSZ exception. But I do blame the politicians and fear mongers for lying to the public, subverting the Constitution, and creating a labrynth of laws that even LEOs cannotunderstand (say what you want, but he did ask first).

No, this is not a reason to stand down. In fact, IMO just the opposite. This is a glaring reason to have better, more effective communications on the subject. What that means and in what form is open for discussion, but at the very least, whether you're an active UOC'er or not, if you're educated in the subject pleasedo something to help others carry legally (because the cat's out of the bag).My suggestion...at the very least ask your local gun shop for some space to put pamphlets out. I use the educational brochure with the single page PC flyer as an insert. Blow a little ink and paper and hopefully save someone from getting pinched.

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Well put coolusername

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Sorry, guys, I think incorporating is a really big mistake!

What you are doing falls outside of the Constitution.

As I've said in another posting, it all falls onto the 14th amendment and what definition of "person" you're looking at.

But then again, it might all be a rather moot point soon! Then EVERYBODY just might startcarrying LOC!!!!And I for one am NOT looking forward to it. :uhoh::shock:

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coolusername2007 wrote:

On one hand I really feel bad for this guy. On the other hand who in their right mind goes out carrying a gun IN THIS STATE without doing a little research first?


No, this is not a reason to stand down.

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I almost did10 years ago. I actually thought loaded open carry was protected nationally in my ignorancebut that wasbecause I came here from a RKBA state.

People who watch TV news, or have brothers who watch TV news,I guess do this also.

How about we don't do news interviews, the content and slant of which we can't control,until we actually have an understandableright to present to the public? This arrestwas directly correlated to a news story a member here pushed.

Standing down for at least 6 months or until Sykes is not unreasonable considering the complicated issues involved in pushing UOC now. This will not be the last innocent who gets caught by 626.9 and we don't have the tools or the jurisprudence to get rid of this bad law. I'm still waiting for the first 171b arrest but school zonesare easier to stumble into I guess.