I've had to hold this in for almost two years but now the case is settled so I'm free to post. The city of San Diego coughed up $35,000, which is a shame since all I wanted was for them to instruct their officers that mere presence of an open carried gun was not necessarily indication of a crime, and that there had to be SOMETHING, ANYTHING additional to provide reasonable articulable suspicion that a crime had been, was in the process of, or was about to be committed before they could draw their weapons and wave them around screaming like lunatics. They refused, so we proceeded. I believe that following the arrest and my claim against the city of San Diego, some factions at SDPD conspired with Saldana to cobble together AB1934, (a so-incredibly-unConstitutional piece of legislation that it boggles the mind) which spectacularly failed at the last minute.
It's kind of ironic that, as I mentioned to the federal judge during initial talks, that 1. if we're really that concerned about officer safety, we ought to be stopping and searching every person who is NOT open carrying, because any one of them could have an illegally concealed weapon and 2. the only people waving guns around threatening to shoot innocent civilians that otherwise peaceful November day, was the police.
It wasn't all bad though. Some cops got educated, Saldana got put in her place, and best of all The Responsible Citizens of California ( responsiblecitizensofcalifornia.org )was founded.
Here's what happened, written the same day:
I made an appointment to meet my friend Dennis at the Coaster Saloon in Mission Beach for breakfast. They have terrific steak and eggs. We’d agreed to meet at 9:15. I arrived and parked in the Belmont Park lot at 9:07 right across the street from the Coaster. Then I got out of the truck, and slipped on my glock 17 on my right hip and my magazine holster with 2 loaded magazines on my left hip. Then I strolled out to the boardwalk to check out the waves since I hadn’t surfed that day. The water was nice and glassy and there were some fun-looking small waves coming in. The lifeguard was getting set up further down the beach. I leaned against the sea wall and called another friend of mine and got caught up with him while I wandered around waiting for Dennis.
Then Dennis appeared in his Mercedes, parked, and greeted me and just as we were about to cross the street to the Coaster, up pulled two patrol cars. I figured they’d probably contact me and do a 12031 weapons check. I strolled nonchalantly towards the street and suddenly heard, “You in the kilt! Freeze! Don’t move! Get your hands up! Keep them where I can see them! On your knees!”
As I heard this I turned and saw two officers, one partially hidden behind a palm tree, with guns drawn and pointed right at me coming at me from two different angles. I had my hands up of course, and turned away from them as ordered and got on my knees. They were yelling from my buddy Dennis to get back away from me. There was a lot of yelling and super-testosterone charge in the air. “Hands on your head! Lace your fingers!” I was calm as could be. Next thing I knew my hands were tightly cuffed, first my left then my right, left inside of wrist to right back of wrist.
Both officers were behind me so I couldn’t see what they were doing, but next officer Knisley was on my right side tugging at my Glock. He was having trouble pulling it out of the holster. “How does this comes out?”
“Just pull straight up. It’s not loaded. I assume you’re doing a 12031 loaded weapon check?”
He pulled it out and drew the slide. “Do you have identification?”
“Yes but I’m not required to provide it unless I’ve committed a crime. Unloaded open carry is legal.”
“Do you have a permit for this?”
“There is no permit required. I am not carrying concealed.”
“Where is your identification?”
“In my wallet in my back pocket but again I am not required to provide it because I haven’t committed any crime.”
Then I felt the officer fishing around in my pocket for my wallet. He took it out and at this point they hauled me to my feet.
“Why do you have a gun? What’s the idea?”
“I’m a citizen and a human being and I’m carrying a gun for protection. As long as it’s not concealed and not loaded and I’m not a minor or a felon and not knowingly carrying within 1000 feet of a k-12 school, it’s perfectly legal. Open carry is legal in California.”
Much grumbling from the police.
“Do you have any warrants for your arrest? Do you have any felony convictions?”
“No, I don’t. But you can’t do a check on me unless I’m being accused of a crime. Am I under arrest?”
“No, you’re being detained while we determine if you’ve broken the law.”
“Well, yeah but detainment is just a term of art. If I were just being detained, I wouldn’t be in handcuffs.
“I understand that you have a job to do officers, and under California law I’m telling you you can contact me to determine if I’m carrying a loaded weapon. That does not normally include either handcuffs, brandished weapons or an identification check. You’re violating my Constitutional rights, specifically the 2nd amendment, and now you’re going further with a 4th amendment violation of my right to be free from unreasonable search and seizure. Your searching of my pockets and subsequent ID check I see as a 4th amendment violation.”
More glowering from the police.
“Why do you have a gun?”
“I already answered that. I don’t have to have a reason. I am a citizen and I know my rights and I’m sure you’ve seen that we are slowly losing our rights in this country. If we don’t start exercising the little we have left, we’re going to go fully fascist and it’ll be a mess.”
“What’s your social security number?”
“I don’t give that out. Am I required to provide it? Am I being charged with anything?”
“What’s your phone number?”
“I don’t give that out either, unless I am required.”
“Don’t you have a cell phone number or something? Can’t you just give me that?”
“No. Not unless I have to.
Glowering from police.
“You just can’t walk around with a gun. Especially down here.”
“I understand you don’t like it and that’s totally up to you. You don’t have to like it. That doesn’t change the fact that I haven’t done anything wrong and you are illegally detaining me. I don’t expect you to know every nuance of the penal code, even though I am required to know it as a citizen, so I don’t mind educating you guys on open carry. I am loosely affiliated with an open carry group that has done a few lunches at the El Indio Shop on India street. 30 or 40 guys show up, strapped, and we have lunch and hang out. They love us, we tip about 60%. Anyway, first time the police stopped by and checked everything out, after that they left us alone. I thought there was a memo that was supposed to go out. Didn’t you get it?”
Well, I appreciate you guys have a job to do but I also know that the Supreme Court has ruled that the police are not required to give protection to any individual person but only to society as a whole. If some thing goes down where I’m at, I understand that you’d like me to dial 911 and hope to God you guys get there in time. But you and I both know that you’ll probably only arrive in time to file a victim’s report. Sorry, but I’m not going to rely on you guys for that. I’m not going to trust you to defend me from whatever real criminals there might be.”
“Well, you can’t carry a gun, especially down here.” At this point I was being searched, my pocketknife unclipped from my pocket and put on the hood of the car, other pockets rifled through. Car keys removed, cell phone found but left in pocket.
“We’re going to have to agree to disagree on that, since it seems I can’t change your mind by showing you the facts. I understand that you don’t want someone running around on the beach, waving a gun and shooting people. Nor do I. But if that did happen in my presence, I’d rather rely on myself than on you guys. You are making a mistake, I’m telling you, and you’ll figure it out sooner or later that I have not committed any crime.
“So what do you carry?”
“Sig is a nice gun.”
“It’s never jammed on me.”
“My Glock has never given me any trouble either. What’ve you got, 17 rounds?”
“Oh. Have you had any other interesting calls today?”
“One where a guy escaped from the sheriff, jumped out a window or something. We’re looking for him in the area.”
“Oh, is he armed?”
“I don’t know.”
“I don’t either. But if I met up with him, I’d be glad I had my gun, wouldn’t you?”
No comment from Knisley.
“So did this dude escape from a bus or something?”
“All we know is he jumped through a window. Plate glass. Headfirst.”
“Oh, so he’s probably all cut up?”
“I imagine so.”
“So let me ask you something. As an officer you took an oath to support and defend the Constitution, right?”
“Have you ever read it?”
Scoffs. “Yes, of course.”
“So you know that the second amendment protects from any infringement the right of the people to keep and bear arms. Do you know what ‘infringement’ means?”
“No. I’m not a lawyer.”
“That’s ok. The great thing is, the Constitution was written for regular guys like you and me to easily understand, not for lawyers.” I indicated with a glance the 5-feet of space between us. “If I took half a step in your direction, that would be an infringement of your personal space. I don’t have to charge at someone or bowl them over or physically contact them to infringe on their space. Same thing with our Constitutional rights. An infringement is any licensing, any restriction, any erosion. I’m sure you’d agree. Now you know we’re going fascist or socialist in this country, especially in the last several years, and you guys are supposed to know better. There shouldn’t even be any concealed carry permits or anything of the kind. And you certainly shouldn’t be charging out of your car with gun drawn screaming at a citizen who is exercising what’s left of his Constitutional rights.”
Other officer was checking my ID for warrants or priors. “Are you still at this address?”
“Yes. You found that I have no priors, right? I’m just lily-white!”
“Yeah, no priors. But what were you thinking? I’m a cop and I can carry off duty and even I don’t do it.”
“Well, that’s your right and you can choose to exercise it or not. And I should be free to do the same. So am I being charged?”
“We don’t know yet.”
“Any chance I could get out of these cuffs in the meantime? Obviously I’m the calmest guy here and reasonable and pose no threat to you.”
“No. They are on for your protection and ours. But you can lean against the car if you want.”
“No, I’m OK standing. But could you push my sunglasses back up on my nose? They’re bugging me and of course I can’t reach them.”
Knisley complied. What a relief.
Another car pulled up. I thought this must be the duty sergeant and he’d have a better grasp of the penal code. I should have known better. He talked to officer White, then approached me. I smiled and said good morning as the sergeant, Kries, walked up.
He didn’t like that. “What’s with the smirk?”
“I beg your pardon? I just said good morning.”
“What’s with the gun? Do you have a permit?”
“No permit is necessary. It’s not concealed.”
“What about your buddy? Is he carrying a weapon?”
“Not that I know of. I doubt it.”
White goes to hassle and search Dennis. I didn’t see or hear that exchange.
“You have to have a permit to carry a weapon capable of being concealed.”
“No, you’re wrong. You have to have a permit to conceal a weapon capable of being concealed.”
He gets in my face. “Are you trying to tell me the law?”
“Look, obviously if I’m walking around with a gun on my hip I’d know the law forwards and backwards. The code reads that it is unlawful to conceal without a permit a weapon capable of being concealed.”
“Why are you carrying a gun?”
“I already explained that to these other two officers.”
“Well, tell it again to me. I want to get it right from the horses mouth.”
“I’m carrying because I want to. I’m an American citizen and a human being and I have the right to self-defense and I’m within the limits of the law and you know I’ve done nothing wrong. I believe that we have to exercise our Constitutional rights because I’m sure you’d agree we’re losing them and the country is on the slide because of it.”
“I still don’t get it. Why do you feel you need a gun? You’re a big guy.”
“That’s irrelevant. I could say the same thing about you, and you carry a gun.”
“I’m a cop. We’re supposed to stop people like you from having weapons.”
“No, you’re supposed to support and defend the Constitution and bust criminals. I am not a criminal. I am not carrying loaded or concealed, I am not a felon, I am not a minor, I am not within 1000 feet of a k-12 school.”
“What, is this some political thing?” Kries sneered. “Is that it? You’re making a statement and trying to get arrested so you can have the ACLU defend you?”
“What about the NRA? Think they’ll help you?”
“Ha! No chance. The NRA is the biggest gun-control organization on the planet.”
“Well, you have to have a permit to carry a weapon capable of being concealed.”
“No, you don’t. You’re mistaken. You’re misreading the statute.”
Now cop is getting angry. “Are you trying to tell me the law?”
“I’m trying to tell you you’re making a mistake. I don’t expect you to know every nuance of the law, even though I as a citizen am required to, but I would expect that you had heard of the open carry group active here in San Diego. We’ve been having open carry lunches fairly regularly at El Indio on India Street and I’ve been open carrying myself for a while now. There was supposed to be a memo that went out to SDPD. Didn’t you read it?”
“I don’t know what you’re talking about. You have to have a permit to carry concealed.”
“It’s not concealed. It’s unloaded and visible from three sides. The magazines are visible from three sides and are on the other hip. You’re telling me this is concealed?”
“I’m telling you you have to have a permit.”
“Look, obviously we’re going to have to agree to disagree.” Big pause. Pregnant pause. The morning sun slid further across the sky. A couple waves crested and broke. “So now what happens?”
“Have you ever been to jail?”
“Well, you’re going. You’re under arrest for carrying a concealed weapon.”
Ah, time for a logic break. The only way they knew I had a weapon was because someone saw it and called it in. They knew it was me because they could see it. So how could it be concealed?
Officer White started getting me ready to transport. He took off my rings, emptied my pockets of whatever else I had, took off my holsters, and removed my belt. “This is a brand-new belt. Did you buy it just so you could carry a gun?”
“No. You’re making a mistake.”
“You’ll get all your stuff back after you post bail. Do you think you’ll be able to post?”
“Depends on how much it is. When do I get my phone call?”
“After you’re booked.”
I was now towards the rear driver side of the patrol car, Knisley and Kries were at the front passenger corner examining my weapon and magazines. Kries cries, “Hey, this is a 17-round mag! You can’t have this! These are law enforcement only!”
“They are no longer legal to purchase or offer for sale in California, but pre-ban magazines already possessed are legal. I’ve had that one for years. It’s legal.”
“No, you can’t have this, this is another violation.”
“Ok, again we’re going to have to agree to disagree and let the courts sort it out.”
Kries to Knisley: “Can you believe this guy? He’s got a 17 rounder with 13 rounds and a 10-rounder with 8.”
As if it’s inconceivable that I would actually deign to carry bullets, of all the horrible things.
They sorted out all my stuff and figured out who was taking me where, and then it was Knisley and I in his car headed downtown, after they loosened the cuffs a little bit since my hands were swelling. Apparently I was to be processed with some paperwork then taken to jail. I heard Kries smugly claim that “We’ve got him now, the rest of his day is shot.”
Knisley and I drove off towards our destination. We talked a bit, and I could sense his hesitation about the whole thing. I said, “Look, officer, you know I didn’t break any laws. Why your sergeant had such a hard-on for me is a mystery to me but you know you’re making a mistake.”
“Well, I have to do what he tells me to do.”
“Well, I guess I can’t change your mind. But I’m one of the good guys and it doesn’t matter whether or not I’m carrying a badge. As one American to another, I’d defend your rights and you as a police officer have a greater responsibility than to enforce laws that you know are un-Constitutional or misapply laws that you know are not relevant. You know I wasn’t carrying a loaded weapon or a concealed weapon and you know your sergeant is wrong.”
“Well, we have to stop and get your paperwork done and then take you downtown to jail. You’ll get a receipt for your weapon at the jail.”
Then I sat back and relaxed. There wasn’t much else I could do. Those cuffs and seats sure aren’t built for comfort.
We ended up downtown on broadway I think, in some underground park-and-process area. I was told that I would have to remain in the car while paperwork was done and my stuff inventoried. I asked Knisley to loosen my right cuff again, and he was nice enough to do it because my hand was starting to swell again. Then I sat and mentally prepared myself for jail.
After 20 minutes or so Knisley had gotten to the point of his report where it was time to count out the cash in my wallet. He took me out of the car and sat me in a chair at a desk. He sat opposite. Some dark-haired officer at the next table looked over and sneered, “What were you thinking?”
“That’s beside the point. I was not carrying a concealed weapon.”
“Well, you’re going to jail.”
“Look, I understand you don’t like that I was carrying. You absolutely don’t have to like it. But you not liking it does not make it illegal.”
Knisley started peeling off hundreds from my wallet, then 20s, 5s, and ones. $564 in all. I said, “Hey, you know, this is kind of silly. I mean, you’re counting this out so I can be sure no one took anything. But my wallet has been passed around between 3 cops so to do a count an hour and a half later seems a little ridiculous.”
He finished the paperwork he was working on, put the sheet in front of me and asked if I was right or lefthanded.
“OK, I’m gonna uncuff your right hand so you can sign the inventory sheet.”
Right hand released. Again, what a relief. “Let me have a look at this. $564, three rings, glock, mags, iPhone, belt, all appears to be in order. Can you hold the sheet down?” He did. I signed. “ What am I being charged with?”
As he’s recuffing me, “Um, 12020 and 12025. Carrying concealed weapon.”
“Can I read the code sections?
“Sure, let me get the book.”
The book is produced. 12020 turns out to be a definition. He was trying to cite me for a section that defined what a gun is. There was no violation listed in that section. So he scratched that one out and we went on to 12025, which of course read, “…carrying concealed a weapon capable of being concealed” blah blah blah.
I had him turn back and forth from that to 12031 which lists carrying a loaded weapon as an offense. I said, “Officer, look, if it was illegal to carry a weapon capable of being concealed, concealed or not, then we wouldn’t need 12031 which makes a distinction between loaded and unloaded carry. I mean give me a break here. I know what your sergeant said but he is obviously wrong. I wasn’t carrying concealed, I wasn’t breaking the law. That’s why a concealed carry permit is called a concealed carry permit, instead of just a carry permit.”
At this point I noticed another officer standing nearby, who seemed to have taken an interest beyond the rest of the ‘don’t mess with me, I’m THE MAN’ officers in the room. He drew Knisley off to the side and had a conversation with him. I kept sitting in my chair, reading the code sections and trying to turn the pages with my nose. I have to laugh at myself now.
Knisley disappears into a back room. I keep reading, and engage the new officer in conversation as we both read the penal code. We covered legal possession, concealed carry, loaded vs unloaded, high-cap mags, everything. Knisley reappears and announces that they “got clarification” and proceeds to tear up the arrest sheet.
“Great. Now get these cuffs off me.”
“Um, we need to have you sit in the patrol car.”
“Fine.” I get in the car, and Knisley goes around to the other side to remove the cuffs. Third great relief of the day. I ask to exit the car but he says, “We’re taking you back right now.”
The door closes and I’m back in the little back seat prison. So I wait. A lightbulb goes on in another officer’s head, as it is determined that the magazines were loaded. Here we go again. Another 5 or 10 minutes passes while they try desperately to figure out a way to arrest me. No dice. I call out to dark haired bad attitude officer to let me out of the car. “Hey, I’m not under arrest. I haven’t done anything wrong. Let me out of the car until we’re ready to go.”
“No I can’t do that. This is a secure area.”
“I’m not even supposed to BE HERE!”
“I can’t do anything. Just wait.”
Unfortunately I didn’t get that officer’s ID number.
Finally Knisley reappears, gets in the car and we head out.
“Officer, you know what really sucks? You guys just spent 2 hours trying your best to get something to stick, when you all knew damned well I hadn’t done anything wrong. Especially your sergeant. He was the worst. He was totally trying to screw me over and he lied to do so. All because I was exercising my Constitutional rights. I of course want the contact information for you, the other officer and your sergeant.”
“Oh, yes, you’ll get all of that when I drop you off.”
For the rest of the ride, we talked politics, gold standard, the economy, the bailout, the war (he’d just gotten back from Iraq, 20 years in the navy) and the fallen and ignored Constitution. I put in his head that he’d better buy some gold and silver and that he has a responsibility to not enforce laws that he knows are un-Constitutional. He was pretty much in agreement with everything, and we were on a first-name basis by the time we were halfway back. He apologized several times, and pulled the old, “Well, we get a weapon call, we don’t know what to expect” routine.
“I understand, but here’s how you ought to do it. Walk up, say hello, ask to check if the weapon is loaded. I’ll comply, present you my hip, you do your check and wish me good day. That’s it. No drawn guns. No screaming. No handcuffs. No ID check unless I’m being accused of a crime, an actual crime.”
“Well, I don’t know if you’re legal or not. I don’t know who you are. I get weapons all the time off guys who are felons.”
“Yes, Jody, I’m sure you do, but I’ll bet you a million dollars you’ve always found CONCEALED weapons- without a permit- while doing a legal body search AFTER contacting someone who has committed another crime. No crook in his right mind is gonna open carry. So therefore the very fact that I’m open carrying means I’m one of the good guys. Right?”
“You know I’m right. Do me a favor and read up on the Constitution again and remember that you have a responsibility to not enforce laws that you know are illegal, and you have a responsibility to stand up to your sergeant when you know he’s wrong.”
With that, Knisley gave me all my gear back. I got re-assembled, put the rings and belt back on, the holsters, checked the chamber and the mags, knocked the bullets back in the mags and slipped everything into their proper places. I got the badge numbers for White Knisley and Kries and an incident report number and Knisley apologized again. We shook hands and we parted.
9:15-11:15 am 11/21/08.
Officer Kries, even though during your deposition you repeatedly lied under oath and said we never even talked that day, I'm going to take this opportunity to say once and for all, YES, I AM TRYING TO TELL YOU THE LAW. To me, you are just a state-sanctioned thug and as such, you hate an armed populace for the same reason every other tyrant does- it's a threat to your power. I have zero respect for you either as a police officer or as a human being and I'm sure that if I someday end up dead under suspicious circumstances, it'll be because of you or one of your thuggish contemporaries.
Officer White, while I think that you suffer from some of the same poisoned thinking as Kries, you aren't nearly as far gone as he is. There is hope. I appreciate the fact that you told the truth in your deposition while the other two lied their asses off. However, if your answer under oath to the question, "if there is a live round in the chamber and the safety is off and you pull the trigger, will the gun fire?" is "I don't know, I'm not a firearms expert," then maybe you ought to rethink your career choice.
Officer Knisely, I hope you took to heart my advice to stand up to your superiors when you know they are wrong. I doubt you did though, judging from all the CYA lies you told in your deposition. You probably also ignored my recommendation to buy gold and silver. Gold that day was about 818 and silver 10.27. Today they are 1311 and 21.94. It's not too late though, since most of what the rest of the world believes about investing is lies, I still say get in while you can.
See you all on the street.