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.
The Calguns Foundation (www.calgunsfoundation.org) is a 501(c)3 non-profit organization which serves its members by providing Second Amendment-related education, strategic litigation, and the defense of innocent California gun owners from improper or malicious prosecution. The Calguns Foundation seeks to inform government and protect the rights of individuals to acquire, own, and lawfully use firearms in California.
The Calguns Foundation Announces Successful Defense of John Contos of Sacramento-Based Sonoma Firearms
For Immediate Release: December 18, 2008
Case based on the incorrect theory that U-15 Stocks are “thumbhole” stocks (and/or constitute a pistol grip) is dismissed. Improper prosecution brought by California Department of Justice Bureau of Firearms as retribution and regulatory over-reach.
REDWOOD CITY, CA - The Calguns Foundation (CGF) announces that it has again successfully defended an innocent person charged with violating California’s complex and overbearing firearms laws. The Solano County District Attorney’s office dismissed all charges in an Assault Weapon-related case in People v. Contos. John Contos, the proprietor of Sonoma Firearms, was charged based upon the theory that the California Rifles’ brand “U-15” stock constituted a thumbhole stock (or was in fact a pistol grip) - and was thus a feature triggering Assault Weapon status under California law.
Background: In June 2007, Mr. Contos was contacted by Supervisory Special Agent Ignatius Chinn of the California Department of Justice Bureau of Firearms in relation to sales of off-list lower receivers for California-legal rifles. According to California law, the serialized “lower receivers” of rifles or pistols that might be considered “Assault Weapons” – and which are not specified by make and model – cannot be considered “Assault Weapons” unless they are specifically listed in California “Assault Weapons” law by make and model. Receivers not listed by make and model are known as “off-list”, and are perfectly legal to sell and possess. However, even though these receivers are perfectly legal, it is still possible to create an illegal assault weapon by putting the wrong “accessories” on one of these receivers. One such prohibited accessory is the “thumbhole stock.”
At the Solano County Gun Show in July 2007, Agent Chinn observed that Mr. Contos was selling off-list lower receivers configured with U-15 “butt stocks.” Agent Chinn claimed such stocks were “thumbhole stocks” that could make these receivers into “Assault Weapons” by having prohibited feature configurations. As there is actually no “hole” in a U-15 stock, this position was at best specious. Later that summer, Agent Chinn obtained and served a warrant based on the “thumbhole stock” theory and seized numerous firearms - including firearms that have no relationship to this dispute.
The Case: The Calguns Foundation retained the Law Offices of Don Kilmer to defend Mr. Contos. After many months passed and no prosecution was forthcoming, Mr. Kilmer began the process of demanding the return of Mr. Contos’ property. After being stonewalled by the Bureau of Firearms, Mr. Kilmer filed a Tort Claims Act claim for the return of all property as well as compensation for business interruption. As the window for a response to the Tort Claims Act claim was to expire in June 2008, the Bureau of Firearms persuaded a Solano County District Attorney to bring criminal charges claiming that Mr. Contos was guilty of offering to sell illegal Assault Weapons.
After reviewing the proposed testimony of the State’s expert (Agent Chinn) the Solano County DA had the courage to admit that he could not meet the burden of proving that a U-15-equipped rifle or receiver was an Assault Weapon. With the case’s dismissal, Mr. Contos looks forward to the prompt return of his property. The Foundation was prepared, if necessary, to secure expert testimony from topologists (mathematicians specializing in the fields of surfaces and shapes) relating to the design of the U-15 stock and its not possessing a “thumbhole”.
The Calguns Foundation remains concerned the Bureau of Firearms has shown a pattern of using the criminal courts to extract retribution against adversaries and quash dissent about their overbroad view of the law. Bureau of Firearms has - on multiple occasions - instigated criminal charges as it became clear that they would be required to return property by civil action. Additionally, the Bureau of Firearms continues to attempt to use the criminal courts to expand the regulatory reach of the Assault Weapon laws. This is contrary to California law. This pattern and practice of charging citizens with a crimes for the purpose of exploring the regulatory boundaries of a fundamental right are extremely troubling and may require redress.
CGF offers its congratulations and thanks to John Contos for his support and patience during this arduous process. Mr. Contos has been a strong personal supporter of the Calguns community, even as this process has exacted real costs from him. Thanks also to The Law Offices of Don Kilmer for their excellent work on this case to date.
Also, CGF offers its congratulations to Grant Early, inventor of the California Rifles U-15 stock, upon having it clearly deemed to be neither a thumbhole stock nor a pistol grip.
Please consider a donation to offset the legal fees and other costs that The Calguns Foundation has and continues to bear in this case and other cases. Your donations are likely to be tax deductible, as The Calguns Foundation expects to obtain 501(c)(3) tax-deductible status. You can donate at http://calgunsfoundation.org/donate via check, credit card, homebanking payments, and Paypal.
The Calguns Foundation expects to see this case through to a final and satisfactory conclusion for both Mr. Contos and the California sport shooting community.
Chairman, The Calguns Foundation