Open Carry Win in California

UOC or unloaded open carry may seem like an alien concept to those of us who live outside of California. We understand concealed carry and we understand open carry. But unloaded open carry? However, in California, due to a quirk in the law, it is legal to carry an unloaded firearm openly and to have a loaded magazine or speed-loader elsewhere on your body.

To answer the question of why one would even bother all you have to do is look at the California Department of Justice concealed carry permit statistics. While in some of the more rural counties concealed carry permits are issued regularly, in the largest urban counties you can forget about it unless you are rich or famous or both. In San Diego County for the year 2007, there were only 1,479 permits issued out of a population of 2.8 million. That is about a .05% rate. Los Angeles County is even bigger in population (approximately 10.3 million) and even stingier with their permits (1,237). However, the dubious prize winner is San Francisco with just 6 permits issued in 2007.

To protest this disparity in granting concealed carry permits, there is a burgeoning Unloaded Open Carry movement in California. Activists will carry their firearms openly and unloaded in public. One such activist is Samuel Wolanyk of San Diego. In urban areas this can cause a bit of a stir. Here is how Gene Hoffman of the CalGuns Foundation describes Mr. Wolanyk's encounter with police in San Diego:

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.

This incident led to a CalGuns Foundation funded and supported lawsuit against the City of San Diego. One goal of Wolanyk v. San Diego was to ensure that the police officers of the San Diego Police Department were properly trained regarding UOC. The other, as one might well expect, was to clear Mr. Wolanyk's name.

On Wednesday, September 29th, the City of San Diego settled the lawsuit rather than to go to trial with it. Mr. Wolanyk received $35,000 for his improper arrest and the SDPD granted his petition for a Finding of Factual Innocence which acknowledges that they had no reasonable cause for his arrest. Along with the settlement, the SDPD will enhance their training of their police officers to prevent such improper arrests in the future. This is definitely a win for civil and gun rights in California.

Now that the lawsuit has been settled, Mr. Wolanyk has posted the details of the incident on the CalGuns forum here. If the details are accurate, and I presume that they are, it is obvious that he knew the law on unloaded open carry more than the officers and police sergeant in question.

I am not an enthusiastic proponent of open carry as I think carrying concealed helps preserve your "gray man" status and preserves your element of surprise when dealing with the criminal element. That said, I do realize that open carry works to legitimize the carrying of firearms and desensitize the general public to the sight of a gun. As some have observed, it is akin to the gay rights movement in some of their protests. You may not always agree with them but you have to admit that they have been very effective in securing gay rights. In time, I hope the same will be said for the open carry activists.