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Thread: References to OPEN CARRY in San Diego and other tid bits

  1. #1
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    References to OPEN CARRY in San Diego and other tid bits

    To all on Open Carry.org in California:

    The following is a sample of what transpired in Federal Court in San Diego on November 15th. I am posting this so the Open Carry community can see where San Diego acknowledges Open Carry and explains (sometimes in error) the aspects of Open Carry in California. Mr. Chapin believes and informed the court that individuals who Open Carry can, by law, are allowed to carry a clip of ammunition in their pocket and then goes on to talk about Gun Free School Zones and 1000 yards instead of feet. I'm sure these were honsest unintentional mistakes on his part, but he clearly demonstrates the confusion in mandated Open UNLOADED Carry in California.

    I have taken the liberty to highlight and underline certain sections that I found interesting.

    Here is a portion of what was said in court.

    THE COURT: ARE YOU FAMILIAR WITH THIS PENAL CODESECTION 12031(J)?

    MR. CHAPIN: YES. THAT'S THE -- I THINK COUNSEL DESCRIBED IT AS THE EMERGENCY EXCEPTION.

    THE COURT: RIGHT.

    MR. CHAPIN: THAT ALLOWS (PAUSE) --

    THE COURT: IS THAT RELEVANT HERE IN THIS CASE?

    MR. CHAPIN: YES, IT IS, BECAUSE IT ALLOWS YOU TO LOAD YOUR FIREARM IF YOU'RE CARRYING IT AND BE PREPARED FOR ANY -- IF YOU'RE BEING STALKED IN AN ALLEYWAY AT NIGHT AND YOU FEAR YOU'RE IN DANGER, YOU CAN LOAD YOUR FIREARM AND BE READY. THE IDEA IS THAT IT'S BETTER TO HAVE LAW ENFORCEMENT DEAL WITH THESE ISSUES. SO THE GOAL IS TO CONTACT LAW ENFORCEMENT BEFORE YOU START FIRING AWAY AT SOME UNSUSPECTING PERSON. LAW-ENFORCEMENT OFFICERS ARE TRAINED. THEY HAVE AN ESCALATIONOF FORCE THAT I'M SURE YOU'RE FAMILIAR WITH BECAUSE THE CASES ARE LITIGATED IN FRONT OF THE COURT, THEY HAVE TO GO THROUGH AFTER YEARS AND YEARS OF TRAINING TO DO THAT, RATHER THAN HAVING SOME CITIZEN STARTING TO FIRE AWAY AT SOME UNSUSPECTING PERSON WITHOUT HAVING A PARTICULAR MEANS TO DO IT. IT ALLOWS FOR A REASONABLE PERSON UNDER REASONABLE ANTICIPATION OF A DANGER TO LOAD THEIR FIREARM AND BE PREPARED FOR SELF-DEFENSE.

    THE COURT: BUT THAT PERSON ALREADY HAS A LICENSE.CORRECT?

    MR. CHAPIN: NO. THIS IS A PERSON WHO CAN CARRY THEIR GUN OPENLY.

    THE COURT: ANYBODY CAN CARRY (PAUSE) --

    MR. CHAPIN: CARRY A GUN.

    THE COURT: -- A FIREARM UNLOADED.

    MR. CHAPIN: ON YOUR HIP

    THE COURT: ON YOUR HIP.

    MR. CHAPIN: -- WITH YOUR MAGAZINE IN YOUR POCKET.

    (THERE WAS ADDITIONAL DISCUSSION WHICH I HAVE LEFT OUT OF THIS POST)

    MR. CHAPIN THEN GOES ON TO SAY:

    TRULY, WHAT THIS IS IS A CHALLENGE TO 12031. IF PLAINTIFFS' POSITION IS WE HAVE A CONSTITUTIONAL RIGHT TO BEAR LOADED FIREARMS IN PUBLIC, THEY SHOULD BE CHALLENGING 12031.THERE IS NO CASE THAT HOLDS THAT THERE IS, CONCEALED-WEAPONS REGULATIONS ARE CONDITIONAL UPON LOADED OPEN-CARRY LAWS. JUSTICE SCALIA DOESN'T SAY THAT IN HIS OPINION. THERE'S NO CASE THAT I CAN FIND THAT SAYS THAT THEY'RE CONDITIONAL.

    CALIFORNIA HAS VERY CAREFULLY REGULATED CONCEALED WEAPONS FOR YEARS. MOST STATES DO. CALIFORNIA GETS TO MAKE A CHOICE AND ITS LEGISLATURE GETS TO MAKE THESE DECISIONS BY CAREFULLY WEIGHING ALL OF THIS EVIDENCE THAT YOUR HONOR HAS THROWN AT YOU IN THE FORM OF DECLARATIONS AND WEBSITES AND LAW REVIEW ARTICLES.

    THE PLAINTIFFS WANT YOU TO OVERTURN 12050 BASED UPON, I COUNTED, NINE PAGES OF DECLARATIONS, WITHOUT HAVING THEM, THESE ISSUES WEIGHED AND EVALUATED BY THE LEGISLATURE BASED UPON INDIVIDUAL STATE NEEDS AND NEEDS IN THE CITY OF SAN DIEGO, WHICH IS DIFFERENT FROM MIDDLE WISCONSIN, WHICH IS ONE OF THE CASES THEY CITE FROM THE CIRCUIT COURT IN MIDDLE WISCONSIN. SAN DIEGO NEEDS IS BORDER TOWN. WE NEED TO HAVE CONCEALED-WEAPONS REGULATION.FRANK ZIMRING'S DECLARATION --
    I'M NOT GOING TO READ IT AGAIN --
    TALKS ABOUT WHAT A HIGH PRIORITY THIS IS FOR LAW ENFORCEMENT, AND IT'S NOT ABOUT HOMICIDE RATE. IT'S ABOUT THE USE OF A HANDGUN AS A WEAPON OF CHOICE FOR CRIMINALS.

    THE COURT: LET ME JUST STOP YOU THERE.

    LET'S GO BACK TO THE, WHAT NEEDS TO BE, THE THREATS. IN OTHER WORDS, A PERSON WHO APPLIES FOR A LICENSE AND IT'S FOR SELF-DEFENSE HAS TO DOCUMENT THAT THEY'RE IN, THERE BASICALLY HAS BEEN A THREAT IN THE PAST, AND SO, THEREFORE, AND BECAUSE OF THE TYPE OF THREAT, THERE PERHAPS WILL BE SOME THREATS IN THE FUTURE, BUT THERE'S NOTHING OTHER THAN THE PERSON CARRYING THE UNLOADED FIREARM TO ASSIST A PERSON WHO SPONTANEOUSLY NEEDS TO DEFEND HIMSELF OR HERSELF. CORRECT?

    MR. CHAPIN: EXCEPT THE EMERGENCY EXCEPTION AND ALL THE OTHER EXCEPTIONS IN 12031.

    THE COURT: IN YOUR HOME.

    MR. CHAPIN: IN YOUR HOME, IN YOUR BUSINESS, IN YOUR CAMPSITE.

    THE COURT: I'M TALKING ABOUT THE PUBLIC, IN PUBLIC.

    MR. CHAPIN: IN PUBLIC.

    THE COURT: THE EMERGENCY EXCEPTION BEING THAT YOU CARRY AN UNLOADED FIREARM.

    MR. CHAPIN: AND YOU CAN LOAD IT --

    THE COURT: LOAD IT.

    MR. CHAPIN: -- ANYTIME YOU REASONABLY BELIEVE YOU'RE IN DANGER.

    THE COURT: SO, OTHER THAN THAT, THAT'S WHAT BASICALLY ALLOWS YOU TO DEFEND YOURSELF IN AN INSTANT, OR THREE SECONDS, I GUESS.

    MR. CHAPIN: WELL, THERE ARE OTHER MEANS OF DEFENDING YOURSELF OTHER THAN USING A FIREARM.

    THE COURT: CORRECT, CORRECT.

    MR. CHAPIN: MOST PEOPLE DON'T DO THAT.

    THE COURT: BUT ASSUMING A FIREARM IS USED.

    MR. CHAPIN: AND I HAVEN'T SEEN ANY EVIDENCE OF WHAT TYPE OF THREAT THAT THE PLAINTIFFS ARE TALKING ABOUT. WHAT KIND OF CIRCUMSTANCES WOULD YOU NEED TO BE ABLE TO DRAW YOUR FIREARM IMMEDIATELY AND FIRE IT? I DON'T HAVE AN EXAMPLE. I GUESS I COULD IMAGINE SOME. BUT IF YOU'RE WEARING A FIREARM OPENLY ON YOUR HIP, I DOUBT THAT A CRIMINAL IS GOING TO COME UP TO YOU AND TAKE YOU ON.

    IT'S INTERESTING AND I WANTED TO POINT OUT TO THE COURT HOW FAR THE PLAINTIFFS WANT TO GO WITH THIS. IN THEIR SURREPLY, AT PAGE THREE, THEY HAPPEN TO MENTION CALIFORNIA PENAL CODE AND FEDERAL LAW WHICH MAKES IT ILLEGAL TO CARRY A FIREARM WITHIN A THOUSAND FEET OF A PUBLIC OR PRIVATE SCHOOL. WITH A CONCEALED-WEAPONS LICENSE, THEY CAN GO WHEREVER THEY WANT. SO THEY CAN GO WITHIN A THOUSAND YARDS OF A SCHOOL.THAT'S WHERE THEY WANT TO GO. SOME STATES REGULATE CARRYING FIREARMS IN PUBLIC PARKS. WITH A CONCEALED-WEAPONS LICENSE,THEY DON'T HAVE TO ABIDE BY THAT. THEY CAN GO CARRY THEIR CONCEALED LOADED FIREARM IN A PUBLIC PARK.

    I'M WONDERING ABOUT THE CONSEQUENCES FOR BUSINESSES,BARS IN THE GASLAMP, INSURANCE COVERAGE, IF THE LAW CHANGES. I DON'T KNOW ABOUT THAT, AND THERE'S NO EVIDENCE OF THAT BEFORE THE COURT, BUT I THINK THAT'S SOMETHING THAT YOU HAVE TO THINK ABOUT IF WE'RE GOING TO GO THAT DIRECTION. SAN DIEGO IS A LARGE CITY. IT'S A METROPOLITAN AREA. WE HAVE CRIMINAL GANGS. I DO DEFENSE. I WAS A PROSECUTOR AS WELL, AND GANGS USE THE NEWBY WHO DOESN'T HAVE A GANG IDENTIFICATION AND A CRIMINAL HISTORY TO CARRY THE FIREARM WHEN THEY'RE DRIVING AROUND IN A CAR, LOOKING FOR SOMEBODY TO SHOOT.

    THE COURT: BUT AREN'T THEY GOING TO GET FIREARMSANYWAY WHETHER OR NOT THEY'RE LICENSED?

    MR. CHAPIN: THAT'S A GREAT ARGUMENT, AND I'M SURE THEY'RE GOING TO MAKE THAT ARGUMENT. WHY BOTHER TO HAVE TRAFFIC LAWS AND SPEED LIMITS BECAUSE PEOPLE ARE GOING TO SPEED ANYWAY AND JUST LET THEM ALL GO. PEOPLE DO ABIDE BY THE LAW, AND THAT'S WHY WE DON'T HAVE STATISTICS IN CALIFORNIATHAT HELP US IDENTIFY SPECIFICALLY THE COMPELLING GOVERNMENTAL INTEREST. IT DATES BACK TO THE 1800S. WE KNOW FROM TRADITIONAL AND HISTORICAL CONCEALED-WEAPONS REGULATIONS THAT JUSTICE SCALIA TELLS US ABOUT.

    THE COURT: WHAT IF A PERSON WHO'S REALLY HONEST APPLIES FOR A PERMIT, LET'S SAY, AND REALLY FEARS FOR HIS OR HER SAFETY, FOR WHATEVER REASON, BUT DOESN'T HAVE THE DOCUMENTATION TO SHOW IT? THAT PERSON PROBABLY CAN'T SHOWGOOD CAUSE. CORRECT?

    MR. CHAPIN: HE WOULD HAVE TO BE ABLE TO ARTICULATEIT, AS MR. CLEARY DID. HE WORKS IN A PSYCHIATRIC WARD AND WAS ABLE TO ARTICULATE, BOTH INITIALLY AND LATER ON WITH THE RENEWAL, THE FEAR HE HAD WORKING IN A PSYCHIATRIC WARD WITH PATIENTS WHO EVENTUALLY GET OUT OR ARE RELEASED AFTER A 72-HOUR HOLD AND KNOW WHO HE IS. SO YOU COULD, UNDER CERTAIN CIRCUMSTANCES, GET A PERMIT WITH BEING ABLE TO ARTICULATE UNDER OATH, OF COURSE, UNDER PAIN AND PENALTY OF PERJURY, THAT THESE ARE ACTUALLY TRUE.

    THE COURT: WITHOUT DOCUMENTATION.

    MR. CHAPIN: WITHOUT DOCUMENTATION, AND THAT'S WHY WE HAVE A HEARING PROCESS. THE STAFF HAS THEIR MARCHING ORDERS.

    THE COURT: RIGHT. THEY SAID NO INITIALLY, YOU DON'T HAVE THE DOCUMENTATION.

    MR. CHAPIN: THE HEARING OFFICER, LIKE YOU, WHO'S LOOKING AT IT AND SAYING, WELL, YOU KNOW, I THINK THE STAFF,YOU'VE DONE YOUR JOB, BUT THIS KIND OF PERSON NEEDS IT. AND,YOU KNOW, THE POLICY OF THE DEPARTMENT IS ACTUALLY TO GRANT THE LICENSES, NOT TO DENY THEM. WE DENY VERY FEW, AND THE PLAINTIFFS KNOW THAT, I THINK, IN THE LAST FOUR YEARS WE'VE DENIED 16. MOST PEOPLE WHO COME TO THE DEPARTMENT HAVE A SPECIFIC NEED. THEY HAVE A BUSINESS. THE JEWELRY BUSINESS IS THE CLASSIC EXAMPLE. THEY CARRY LARGE AMOUNTS OF CASH, LARGE NUMBERS OF JEWELRY. THAT'S THE CLASSIC EXAMPLE, AND THERE ARE, TYPICALLY, HOLDUPS IN THE JEWELRY BUSINESS AND THEIR
    PROPRIETORS AROUND THE NATION REGULARLY. THAT'S JUST THE TYPICAL EXAMPLE.

    THE COURT: HAVE ANY, SINCE THIS LAWSUIT WAS FILED, HAVE ANY CHANGES BEEN MADE?

    MR. CHAPIN:NO.

    THE COURT:IN HOW THE COUNTY IS ENFORCING (PAUSE)

    MR. CHAPIN: NO. ONE OF THE ADVANTAGES THAT WE HAVE IS THAT BLANCA PELOWITZ HAS BEEN THE MANAGER OF THE LICENSINGDIVISION FOR, SINCE AT LEAST 2002, AND WE HAVE THE ADVANTAGE IN THIS CASE OF HAVING CONSISTENT APPLICATION OF OUR POLICIES SINCE THEN, AND SHE REVIEWS EVERY INITIAL APPLICATION AND MAKES A DETERMINATION AND MAKES THE RECOMMENDATION TO HER SUPERVISOR, WHO THEN EITHER APPROVES IT OR THERE'S A HEARING.....

    Note:

    Contrary to Mr. Chapin’s statement to the court, THERE HAVE BEEN CHANGES since the filing of the lawsuit IN OCTOBER OF 2009. In a letter dated January 8, 2010, The Sheriff’s Department changed the local amount collected from applicants for a CCW from $63.14 to $12.63 as evidenced by the following letter dated January 8, 2010.


    San Diego County Sheriff's Department

    January 8, 2010

    Edward Peruta
    Street address has been redacted
    San Diego, CA 92117

    Dear Mr. Peruta:

    Enclosed please find a check in the amount of $50.51, as a refund of the total fee collected
    erroneously on February 3, 2009 at the time of your application for a CCW.

    Please rest assured that this procedure has been corrected and updated in accordance to
    PC12054, and thank you for bringing it to our attention.

    Sincerely,

    Signed by Blanca Pelowitz

    Blanca Pelowitz, Licensing Manager
    License Division

    CC: File

    The issue of improperly collected CCW fees was first raised by Edward Peruta in late 2008 and early 2009 and was defended until the filing of the current Federal Lawsuit in October of 2009.

    Since that time, others have raised the fee issue and gone on to challenge it in other counties and rightfully claim credit for continuing the challenge of illegality of intitial local CCW fees.
    Last edited by Edward Peruta; 11-26-2010 at 10:34 AM.

  2. #2
    Regular Member CenTex's Avatar
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    Ed,
    Thank you for a good layout of the proceedings. Hope to hear more as the case develops. It appears from what is stated that the judge is trying to give a fair hearing. What is known about the judge's stand on gun rights? Have you looked into that?

    Mr. Chapin: "THE IDEA IS THAT IT'S BETTER TO HAVE LAW ENFORCEMENT DEAL WITH THESE ISSUES."

    Did he say "idea" or did you mean to type "ideal"?
    If it's "idea," then I say, how can you expect a PO to be there in the three seconds that you need to arm your weapon? 911 is out of the question if your time to defend yourself is immediate. Unless you have practiced repeatedly under duress, I don't think anyone can load in three seconds when they are afraid and possibly shaking.

    If it's "ideal," who can disagree with that? Maybe we can all hire our own special PO to follow us around all day.

    Mr. Chapin: "THEY [police officers] HAVE TO GO THROUGH AFTER YEARS AND YEARS OF TRAINING TO DO THAT, RATHER THAN HAVING SOME CITIZEN STARTING TO FIRE AWAY AT SOME UNSUSPECTING PERSON WITHOUT HAVING A PARTICULAR MEANS TO DO IT."

    What nonsense. No PO goes through years and years of training to learn what level of response is needed in facing escalating levels of danger. No question that they are given proper and adequate training...but years and years? How can he say that when most POs are on the streets after only a short time in actual training?

    CT
    Last edited by CenTex; 11-26-2010 at 11:57 AM.
    The words of a tyrant: I never entertain opposing opinions. I am always right.

    Socialism is just another dirty word for totalitarianism.

    "Guard with jealous attention the public liberty. Suspect every one who approaches that jewel. Unfortunately, nothing will preserve it but downright force. Whenever you give up that force, you are inevitably ruined." -Patrick Henry

  3. #3
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    Thanks Ed For the Update And for all you Have Done!
    Last edited by r1man; 11-27-2010 at 12:06 PM.

  4. #4
    Newbie cato's Avatar
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    Is the whole transcript on line somewhere?

  5. #5
    Regular Member Firemark's Avatar
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    Having been in the courtroom listening to the arguments of both sides, the atmosphere and ludicrousness of the defendants case was utterly unbelievable...
    New to OPEN CARRY? Click here first

    "Gun owners in California in 2011 are like black people in the south in 1955. If you don't understand that then your concepts of fighting for gun rights is just tilting at windmills." Gene Hoffman.

    "Why do you need to carry a gun?" ...Because it not a Bill of Needs, its a Bill of Rights!!

  6. #6
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    I wonder what the judge thought of all the snickers, shocked looks, and negative head nods whenever Mr. Chapin opened his mouth.

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