Firearms out in the open 

David Julian has his unloaded gun strapped to his hip anytime he’s walking his dog, grocery shopping or eating dinner at a restaurant.

The 28-year-old Cupertino resident estimates that he’s one of 40 people in the Bay Area and more than 100 in the state exercising his legal right to carry an unloaded handgun in plain sight. Second to protecting themselves, the purpose of this loosely organized “open-carry” group is to usher in reforms to California’s gun laws.

“We consider ourselves coming out of the closet with our gun rights,” said Julian, who often carries openly throughout San Mateo County. “The Bay Area is the last stand.”

The movement has sparked controversy across the state and is now hitting close to home on the Peninsula, where law enforcers are responding to the group with mixed feelings. Simply put: They are trying to strike a balance between upholding state law and protecting the community from what they say can lead to a dangerous and deadly scene.

The county Sheriff’s Office was the first to issue a public memo last week, alerting the community that it’s legal to carry unloaded guns. In the same breath, deputies said they do not recommend doing so.

“I got a lot of calls from people who were upset,” said sheriff’s Lt. Ray Lunny. “They think I am trying to take their rights away from them.”

The truth is that many law enforcers and prosecutors had not even heard of the phrase “open carry” until late 2009, when the growing movement gained footing on the Peninsula, said Steve Wagstaffe, chief deputy district attorney of San Mateo County. It’s been legal in California to openly carry unloaded firearms since 1999 as long as you are not within 1,000 feet of K-12 schools.

“Obviously, they want to see California have different legislation when it comes to concealed firearms,” Wagstaffe said. “I wish they would stop at the Santa Clara County line.”

It’s created confusion among police agencies, which are scrambling to advise officers on how to legally deal with individuals openly carrying unloaded firearms.

The District Attorney’s Office is preparing a memo explaining to police that they can stop people who are seen carrying guns with holsters and inspect them to make sure the firearm is unloaded.

Beyond that, law enforcers are limited in what they can do with individuals carrying unloaded firearms.

Morley Pitt, assistant district attorney in the county, said police are not allowed to run the person’s name or check the serial number of the gun to make sure it has not been altered.

The main concern at issue is public safety.

In California, it’s not the norm to see people walking around with a firearm strapped to their hip, Pitt said. It can stir chaos and provoke law enforcers to draw and, possibly, fire their guns, he said.

“It’s very, very intimidating,” Pitt said. “None of us can read the mind of the person with the gun.”

That’s exactly why police intend to continue to respond to each man-with-a-gun call as a high priority, whether the firearm is loaded or not.

“We are all for people’s constitutional rights,” Daly City police Sgt. David Mackriss said, “but we also need to protect ourselves, and we are worried about encounters and how they can turn out.”

 

Rules behind the movement

Individuals have the right to carry unloaded firearms that are in plain view and not concealed, but it’s within a law enforcement officer’s right to inspect any weapon that is carried openly in public, according to the San Mateo County Sheriff’s Office.

Penal Code Section 12025 makes it unlawful to carry a concealed firearm when person does any of the following: carries concealed pistol, revolver or other firearm capable of being concealed upon the person. Firearms carried openly in belt holsters are not concealed within the meaning of this section.

Penal Code Section 12031 makes it unlawful to carry a loaded firearm while in any public place or on any public street in an incorporated city or any public place or street in a prohibited area in an unincorporated territory.

A firearm shall be considered loaded when an unexpended cartridge or shell is in or attached to the firearm. A muzzleloader firearm shall be considered loaded when it is capped or primed and has a shot in the barrel.

Note: Officers are allowed to examine any firearm carried by anyone in a public setting. Refusal constitutes probable cause for arrest for violation of this code. It’s also illegal to possess a firearm — loaded, unloaded, concealed, not concealed — within 1,000 feet of any school, except when the firearm is being transported.

Source: San Mateo County Sheriff’s Office

 

Concealed weapons

Opposite of the open-carry backers are people who carry concealed weapons. Permits filed by persons in San Mateo County to carry a concealed weapon:

Year Permits
2000 204
2001 224
2002 235
2003 239
2004 235
2005 222
2006 214
2007 205

Source: California Office of the Attorney General

 

It’s the law

Openly carrying unloaded firearms is legal in California.

  • 1999: Year open-carry law
    was enacted
  • 4: Gun shops in San Mateo County
  • 1: Gun shows in San Mateo County
  • 205: People who have concealed-weapons licenses in San Mateo County as of 2007
  • 1,000: Minimum feet a person with a firearm, loaded or unloaded, must stay away from a K-12 school

Sources: California Department of Justice, San Mateo County Sheriff’s Office, San Mateo County District Attorney’s Office

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Erin Sherbert

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