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andytothemax
07-12-2011, 5:49 PM
Well folks, this is it. I am tired of state organizations prohibiting me from carrying my favorite knife, the
http://quarterbore.com/images/lancay_m11_eod_03.jpg
M11 EOD knife that I personally built up from a Buck Phrobis M9 >188 blade. Also, I want to UOC in State park type places, of which this District is one. I'm posting my complaint here before I file it. I already notified the Second Amendment Foundation of my plans and have not heard back. Any thoughts on how I could improve this or make it more clear? It doesn't need to be that long, considering that any motion for a preliminary injunction would be supported by lengthy declarations/affidavits. Thanks.

Librarian
07-12-2011, 6:16 PM
Hmm.

Not a lawyer here, but I really don't think you have a case until you get arrested.

That might be different in a few years, but in the 9th Circuit, the extent of 2nd Amendment protection is not yet established.

andytothemax
07-12-2011, 6:17 PM
Negative, fear of arrest is enough for injunctive relief. It helps that the section of the regs in question makes it a misdemeanor.

wash
07-12-2011, 6:26 PM
Andrew, are you familiar with Maloney v. Rice?

What you are suggesting is similar.

Maloney is a case that horrified many gun rights activists because many thought chaku sticks were too unusual to rank second amendment protection.

McDonald v. Chicago was the right case for that issue, not Maloney.

In a perfect world, cases like Maloney would be decided on their merits and good law would result but we don't quite live in a perfect world.

When a group like SAF crafts a lawsuit, they carefully choose the court venue, manufacture legal standing and select sympathetic plaintiffs who can demonstrate irreparable harm.

I don't know enough to tell but you could have all that and still not be a good case to try because another might be even better.

The Peruta case is an example of a case that a not so great plaintiff pushed in to the courts and it probably set back California 6-18 months in our path to virtual shall issue CCW.

What I'm getting at is you need a really good second amendment lawyer like Don Kilmer to do something like this and at this critical time in California, using up the time of one of our good second amendment lawyers might have negative consequences for all Californians.

You were right to look for feedback but you really need feedback from a qualified lawyer (not Gorski please).

anthonyca
07-12-2011, 6:26 PM
Negative, fear of arrest is enough for injunctive relief. It helps that the section of the regs in question makes it a misdemeanor.

Are you sure? Why were the rest of the plaintiffs in Enos v holder dismissed?
http://calguns.net/calgunforum/showthread.php?t=417935

andytothemax
07-12-2011, 6:27 PM
Andrew, are you familiar with Maloney v. Rice?

What you are suggesting is similar.

Maloney is a case that horrified many gun rights activists because many thought chaku sticks were too unusual to rank second amendment protection.

McDonald v. Chicago was the right case for that issue, not Maloney.

In a perfect world, cases like Maloney would be decided on their merits and good law would result but we don't quite live in a perfect world.

When a group like SAF crafts a lawsuit, they carefully choose the court venue, manufacture legal standing and select sympathetic plaintiffs who can demonstrate irreparable harm.

I don't know enough to tell but you could have all that and still not be a good case to try because another might be even better.

The Peruta case is an example of a case that a not so great plaintiff pushed in to the courts and it probably set back California 6-18 months in our path to virtual shall issue CCW.

What I'm getting at is you need a really good second amendment lawyer like Don Kilmer to do something like this and at this critical time in California, using up the time of one of our good second amendment lawyers might have negative consequences for all Californians.

You were right to look for feedback but you really need feedback from a qualified lawyer (not Gorski please).


I hear you-- I have an email in to SAF re this issue. I haven't filed the complaint yet and can always cancel my plans :)

andytothemax
07-12-2011, 6:28 PM
Are you sure? Why were the rest of the plaintiffs in Enos v holder dismissed?
http://calguns.net/calgunforum/showthread.php?t=417935

I'm not familiar with that case but I will review.

wash
07-12-2011, 6:34 PM
One more thing, reading your complaint, it kind of sounds like an underground regulation. CGF has fixed those before, through the Office of Administrative Law I believe.

A lawsuit might not even be the right way to fix this.

The law is damn complicated.

anthonyca
07-12-2011, 6:35 PM
I'm not familiar with that case but I will review.

The judge ruled that in federal court, the plaintiffs had no standing to sue until that had actual harm. Arrest, jail, formal denial of a purchase. May bee you do have standing.

andytothemax
07-12-2011, 6:37 PM
One more thing, reading your complaint, it kind of sounds like an underground regulation. CGF has fixed those before, through the Office of Administrative Law I believe.

A lawsuit might not even be the right way to fix this.

The law is damn complicated.

I sent the District a demand letter about it, but I doubt it will have any effect. I'll contact CGF re same. Good idea- I'm glad I posted on here before filing this. Yes I am a lawyer but this is outside my area of expertise.

Funtimes
07-12-2011, 8:36 PM
I think Enos is different since it's not criminal to be prohibited, but it is criminal to carry. I.e., you don't get arrested for being prohibited as a person with a MDV.

stix213
07-12-2011, 9:20 PM
There are several carry cases working their way through the courts with the country's top 2A lawyers running them, with a destination address of the US Supreme Court. Its important to let the court say once and for all that carry outside the home is part of the protected 2A right before pushing these other cases.

Until then I seriously doubt you will win, and at worst you can set back the entire movement with a bad court precedent in a moment of selfishness. Please tell me you were not going to do this pro se? (pro se is a recurring theme in these kinds of threads)

Edit: Oh geez I just opened your pdf attachment and see you are going pro se. Please no no no no no

edwardm
07-12-2011, 9:29 PM
I'm not offering legal advice, but I am going to comment that it looks like Pub. Res. Code Section 5560 and sections prior permit the Midpeninsula OSD to enact regulations and treat violations of those regulations as either misdemeanors or infractions, determination of which is left to the discretion of the Board of Directors.

While different, this reminds me of the new signs at the Coyote Point range that say "No Open Carry". The authority issues are different, but both are regulatory and both cause me to raise my eyebrows.

As much thought as I've put into both matters (I started looking into the MPOSD restrictions probably a year ago, according to my browser/bookmark history), resources are, in my opinion, better spent. Why? There are precedents that need to be established for a move like this to have a reasonable chance of success IMO.

I am NOT trying to personally or professionally discourage anyone, but if a client came to me and said "I want to do this" I would advise them to find someone else to take the case *at this time.* It's just a gut feeling right now, but I suspect the Gorski Factor here is very high.

petey
07-12-2011, 9:30 PM
It should come as no surprise that the Midpeninsula Open Space District has a complete ban on weapons.

Nor should you be surprised to find that one of the legal teams behind the Legal Community Against Violence has done pro-bono work for the MOSD.

www.wsgr.com/probono/PDFs/ProBonoFall05Newsletter.pdf

Take a look at pages 7 and 10 of their newsletter.

Liberty1
07-12-2011, 9:33 PM
Please watch this, talk to CGF / SAF, and see if you don't change your mind. I'm sure there are many ways for you to positively effect our rights but going 'John Wayne' pro per might not be the best way. And I thank you in advance for your dedication to our cause.

http://m.youtube.com/#/watch?v=52_27JeI9YY

52_27JeI9YY

dantodd
07-12-2011, 10:19 PM
Knives and guns are very different in CA. In some ways gun rights are stronger. We have decent state preemption for firearms, we don't have any (AFAIK) for knives. While filing a pro per suit is generally not advisable for a lot of reasons that certainly doesn't mean there aren't lots of ways you can contribute both to the cause in general and specifically toward helping gain the specific rights you are interested in exercising.

You should contact the folks at www.kniferights.org they have been working on some of these issues for many years and may be able to use the services of a decent attorney. It's always better to be coordinated with those who've been in the trenches for a while. Perhaps you will find a way to help us get state preemption for knife laws, I know that is a big push for the guys over at kniferights.

Also, Maloney was GVR'd by SCOTUS immediately after McDonald. This means that the second almost certainly covers weapons such as nunchaku and, I would venture, knives. Maloney seems like a really good guy, but as a pro per I know that he is sort of running out of steam right now and is not pursuing the case with quite the vigor he once had. So, if you decide to go down this road pro per consider that you might be all the way up to SCOTUS just to get remanded back to district to start again. This is not the type of thing for someone who isn't willing to put in a decade plus into the fight, ask Don Kilmer, in that last Nordyke ruling even the judges were making "jokes" about how long and how many times they have been dealing with the case.

andytothemax
07-13-2011, 1:00 AM
There are several carry cases working their way through the courts with the country's top 2A lawyers running them, with a destination address of the US Supreme Court. Its important to let the court say once and for all that carry outside the home is part of the protected 2A right before pushing these other cases.

Until then I seriously doubt you will win, and at worst you can set back the entire movement with a bad court precedent in a moment of selfishness. Please tell me you were not going to do this pro se? (pro se is a recurring theme in these kinds of threads)

Edit: Oh geez I just opened your pdf attachment and see you are going pro se. Please no no no no no

You're certainly right that the cause is more important. I would never want to set back the movement; I will consult with SAF and CGF before actually doing this.

Re your other comments, they say a lawyer who represents himself has a fool for a client. They ain't kidding.

andytothemax
07-13-2011, 1:07 AM
Please watch this, talk to CGF / SAF, and see if you don't change your mind. I'm sure there are many ways for you to positively effect our rights but going 'John Wayne' pro per might not be the best way. And I thank you in advance for your dedication to our cause.

http://m.youtube.com/#/watch?v=52_27JeI9YY

52_27JeI9YY

Wow, that's pretty damning on the subject of well-intentioned but wrongheaded litigation from our side. I'm really glad I sent them an email about this case.

I have five trials and thirty five depositions under my belt, so I know what I'm doing with litigation, but the 2A is not my area (yet). It calls for extreme caution.

andytothemax
07-13-2011, 2:01 AM
It should come as no surprise that the Midpeninsula Open Space District has a complete ban on weapons.

Nor should you be surprised to find that one of the legal teams behind the Legal Community Against Violence has done pro-bono work for the MOSD.

www.wsgr.com/probono/PDFs/ProBonoFall05Newsletter.pdf

Take a look at pages 7 and 10 of their newsletter.

I didn't realize Wilson Sonsini was behind this. If they take the case, I'm screwed unless I have SAF's blessing or a great amicus brief from them. Wilson Sonsini could put two of their lawyers on this and have them do it as part of their pro bono allocation for the year. It would be like suing the U.S. government. Food for thought.

Southwest Chuck
07-13-2011, 6:33 AM
I didn't realize Wilson Sonsini was behind this. If they take the case, I'm screwed unless I have SAF's blessing or a great amicus brief from them. Wilson Sonsini could put two of their lawyers on this and have them do it as part of their pro bono allocation for the year. It would be like suing the U.S. government. Food for thought.

As Dirty Harry once said, " a mans got to know his limitations" or something to that effect. Sounds like you acknowledge yours, and I applaud your efforts and commitment to the "overall" cause and your openness and pursuit of other opinions on the matter. :thumbsup:

andytothemax
07-13-2011, 7:09 AM
As Dirty Harry once said, " a mans got to know his limitations" or something to that effect. Sounds like you acknowledge yours, and I applaud your efforts and commitment to the "overall" cause and your openness and pursuit of other opinions on the matter. :thumbsup:

Thanks- I appreciate your comments. To everyone I would just say keep in mind this idea is incubating right now and there's no time limit on how long I work on it or prepare for it. I'm not actually filing anything until I hear from SAF and CGF.

gun toting monkeyboy
07-13-2011, 7:39 AM
Thanks- I appreciate your comments. To everyone I would just say keep in mind this idea is incubating right now and there's no time limit on how long I work on it or prepare for it. I'm not actually filing anything until I hear from SAF and CGF.

OMG. Somebody who is actually willing to listen to reason and hold off for a bit. You have no idea how refreshing that is to hear on here. Normally these threads go something like this:

OP: I wanna file and sue every MF in the room!

Calguns Community: Are you sure? There are already some of the best legal minds on our side working on a well thought out, carefully crafted plan...

OP: No! I wanna now! I wanna wanna wanna!

CG: But you could end up setting everybody back months or years with a bad ruling.

OP: I don't care. I am going to be the next Alan Gura. I wanna sue. How do you think I should do it?

CG: Do you have any experience? Or the funding to back the costs of the case?

OP: Yes, I found a lawyer who will do it for $500, half a pack of chewing gum and a semi-virgin sheep.

CG: Umm... I think you may be getting ahead of yourself here. That won't cover the costs. Does he have any experience with the Second Ammendment?

OP: No. But he is cheap. Besides, I want to sue somebody right now. Look, I posted a paypal link so people can donate to my cause. And it is on Facebook. I already have three "likes", not counting my mom.

CG: I really don't think it is wise to take people's focus off of the cases that are already going and have the funding in place already.

OP: You guys are a bunch of communist pussies. I am going to go sue everybody. And I am going to tell everybody online what a bunch of cowards you guys are. And when I win my case, and the rainbow ponies are flying me to Happytown, I am going to give you all the finger as I ride by. Losers.
(Logs off never to be heard from again.)


See, that is what we are used to having on here. I admire your dedication to the cause, but I really admire your wisdom in being able to step back and reconsider. THAT is miles ahead of most people who come on here with this idea. I am not saying that you shouldn't persue your idea. But go slow, do your homework, and see how you can best craft ou case before you set things in motion. And see if you can coordinate with the SAF and CGF to set it up in such a way that it compliments the actions that are already under way. Good luck!

-Mb

andytothemax
07-13-2011, 7:51 AM
See, that is what we are used to having on here. I admire your dedication to the cause, but I admire your wisdom in being able to step back and reconsider. THAT is miles ahead of most people who come on here with this idea. I am not saying that you shouldn't persue your idea. But go slow, do your homework, and see how you can best craft ou case before you set things in motion. And see if you can coordinate with the SAF and CGF to set it up in such a way that it compliments the actions that are already under way. Good luck!

-Mb

Thanks again-- having had my butt kicked in court on a number of occasions, I'm in a good position to evaluate when to step back. They're hard lessons but they need to be learned. While I have the advantage of being able to do this for practically no cost because I'm a lawyer, it's always helpful to have a group of people to discuss things with.

For all I know SAF and CGF may support the case because the District is not a State Park and it may be easier to take down the District or even reach a settlement, because unlike the State the District may not have the money to pay for a defense. Really, this isn't about being the test case or famous; all I want to do is be able to take some form of protection with me on my hikes, even if it's only a big knife. Whether a knife in a park-like setting is protected by the Second Amendment would certainly be a relevant question that could go either way. If I lose, the 9th Circuit may create a precedent different from that reached in another circuit, creating a prime candidate for SCOTUS review. I'm prepared to take this all the way, but I want to be sure what is behind the target before I pull the trigger...

wash
07-13-2011, 9:25 AM
I'm glad that you are looking at this rationally.

You definitely need to talk to CGF if this is an LCAV thing. I'm pretty sure they are always looking for ways to attack their policies.

CGF was looking in to some type of continuing law education thing so they can probably help you get in to second amendment law the right way.

We are always looking for allies but teamwork, strategy and organization are key. There is no one person that is going to win this for us, we have to do it together.

dantodd
07-13-2011, 9:37 AM
Oh BTW: nice knife.

andytothemax
07-13-2011, 10:05 AM
Oh BTW: nice knife.

:iagree:Thanks that's actually not mine but is a sample pic of the Lan-Cay model. I have the original Buck M9 bayonet converted to the M11 EOD; I'll post a pic later.

andytothemax
07-13-2011, 10:41 AM
I just checked the SAF website and they won a lawsuit against the City of Seattle on an ordinance prohibiting firearm possession in city parks. The challenge was based on a Washington preemption statute rather than the 2A though. Either way::rockon:

andytothemax
07-13-2011, 6:18 PM
Oh BTW: nice knife.

Thanks

http://blog.andrewwatters.com/blog/cg/100_3499.JPG

http://blog.andrewwatters.com/blog/cg/100_3501.JPG

It's seen some heavy use! Probably in Iraq. I bought it used off eBay and had it sharpened at the Buck factory, then again by a local knife shop.

http://blog.andrewwatters.com/blog/cg/100_3504.JPG

http://blog.andrewwatters.com/blog/cg/100_3505.JPG

http://blog.andrewwatters.com/blog/cg/100_3506.JPG

Oh no!

This is my favorite knife of all time. Total cost: $150.

hoffmang
07-13-2011, 11:37 PM
I hear you-- I have an email in to SAF re this issue. I haven't filed the complaint yet and can always cancel my plans :)

SAF forwarded this to me and I've been swamped by my day job over the last 72 hours. Please pause until we can chat.

-Gene

Connor P Price
07-14-2011, 12:01 AM
This is really refreshing to see. OP, thank you for having the level head that it takes to look at things objectively and seek advice from those in a position to give it. In some ways we can be our own worst enemies by taking on cases that could establish harmful legal precedent so its always best to proceed with caution.

wildhawker
07-14-2011, 12:58 AM
It is, indeed, refreshing, and a sincere thanks to Mr. Watters for his reasonableness and consideration. Restraint is often an indicator of strength.

-Brandon

andytothemax
07-14-2011, 6:32 AM
SAF forwarded this to me and I've been swamped by my day job over the last 72 hours. Please pause until we can chat.

-Gene

Will do. Thanks.

MudCamper
07-14-2011, 7:50 AM
Doesn't state preemption apply, and these special districts cannot pass laws regulating possession of firearms at all? Like cities, all they can do is regulate shooting? I would think challenging them (not necessarily in court) on preemption grounds, or simply lack of any authority, would be more fruitful than even mentioning the 2A.

Linking the other thread (http://www.calguns.net/calgunforum/showthread.php?p=6737017) relating to this topic.

FYI PRC 5500 - 5595 (http://www.leginfo.ca.gov/cgi-bin/calawquery?codesection=pen&codesection=prc&codebody=5541) is where they get the authority to create and enforce regulations. Again however, doesn't state preemption apply?

ETA: Nevermind. I just read the CGF wiki entry on state preemption (http://wiki.calgunsfoundation.org/index.php/State_Preemption_of_Some_Gun_Regulation). Local governments can ban possession. :(

andytothemax
07-14-2011, 9:22 AM
Well folks, a far greater professional mind than mine has spoken. Alan Gura personally emailed me and asked me not to file this case, at least until the issue is settled in existing cases in the 9th Circuit and/or in SCOTUS. Needless to say I defer to his judgment and therefore will not be pursuing this matter at this time.

MudCamper
07-14-2011, 9:27 AM
Well folks, a far greater professional mind than mine has spoken. Alan Gura personally emailed me and asked me not to file this case, at least until the issue is settled in existing cases in the 9th Circuit and/or in SCOTUS. Needless to say I defer to his judgment and therefore will not be pursuing this matter at this time.

Thanks for the update.

What are the current challenges, or are there any yet, to local government possession bans? And will these effect state level bans, like CCR Title 14, Div 3, Chap 1, s 4313, which bans possession in CA State Parks?

andytothemax
07-14-2011, 9:51 AM
Thanks for the update.

What are the current challenges, or are there any yet, to local government possession bans? And will these effect state level bans, like CCR Title 14, Div 3, Chap 1, s 4313, which bans possession in CA State Parks?

Flat-out municipal possession bans like San Francisco's failed handgun ban are subject to state preemption. See http://www.hoffmang.com/firearms/a115018.pdf for the Court of Appeal's opinion affirming the trial court's judgment that the local ordinance passed by the voters was preempted by state law. Specifically, Penal Code section 12026 states:

No permit or license to purchase, own, possess, keep, or carry, either openly or concealed, shall be required of any citizen of the United States or legal resident over the age of 18 years who resides or is temporarily within this state, and who is not within the excepted classes prescribed by Section 12021 or 12021.1 of this code or Section 8100 or 8103 of the Welfare and Institutions Code, to purchase, own, possess, keep, or carry, either openly or concealed, a pistol, revolver, or other firearm capable of being concealed upon the person within the citizen's or legal resident's place of residence, place of business, or on private property owned or lawfully possessed by the citizen or legal resident.
A different section, Government Code sec. 53071, preempted San Francisco's attempt to ban the commercial sale and transfer of firearms.

As for State Parks and Special Districts, no one has challenged the possession bans as far as I know. Partly because the State Park and Special District land use regulations comply with Penal Code sec. 12026-- they allow possession in one's residence. Then you get into whether a temporary residence like a campsite is really a residence. There's a separate provision, PC 12031(l), dealing with temporary residences but it relates to having loaded weapons:

Nothing in this section shall prevent any person from having a loaded weapon, if it is otherwise lawful, at his or her place of residence, including any temporary residence or campsite.It's safe to say that anywhere that prohibits camping prohibits possession.

State Park regulations at 14 CCR sec. 4313 allow:

Firearms not having a cartridge in any portion of the mechanism, other unloaded weapons or devices such as traps, nets, and bows and arrows may be possessed within temporary lodging or mechanical mode of conveyance when such implements are rendered temporarily inoperable or are packed, cased, or stored in a manner that will prevent their ready use.So it looks like you can have a cased, unloaded firearm in your campsite or trailer in a State Park. But then the question is whether a magazine is part of the "mechanism" thereby preventing you from having a loaded magazine. These regulators are obviously major *******.

dantodd
07-14-2011, 10:00 AM
Well folks, a far greater professional mind than mine has spoken. Alan Gura personally emailed me and asked me not to file this case, at least until the issue is settled in existing cases in the 9th Circuit and/or in SCOTUS. Needless to say I defer to his judgment and therefore will not be pursuing this matter at this time.

Stick around the 2A area. There is always room for more help. I'm sure there will be places that a dedicated attorney can contribute.

andytothemax
07-14-2011, 10:02 AM
Stick around the 2A area. There is always room for more help. I'm sure there will be places that a dedicated attorney can contribute.

I will! Once SCOTUS or the 9th Circuit settle the issue of open carry in existing cases, I have the go-ahead to revisit the issue :D

dantodd
07-14-2011, 10:24 AM
I will! Once SCOTUS or the 9th Circuit settle the issue of open carry in existing cases, I have the go-ahead to revisit the issue :D

Well, you're such a post whore, I'm sure we'll hear more from you. You almost have 1 post/mo. average. :D

andytothemax
07-14-2011, 10:38 AM
Well, you're such a post whore, I'm sure we'll hear more from you. You almost have 1 post/mo. average. :D

Thanks for helping me boost my post count! I'm not sure I can match your 8 posts per day though :D

CaliforniaCarry
07-14-2011, 11:21 AM
You mean, all I have to do to hear personally from Alan Gura is threaten to file a case? :chris:

edwardm
07-14-2011, 12:08 PM
You mean, all I have to do to hear personally from Alan Gura is threaten to file a case? :chris:

No. You could give him a call or write him a letter. He's a busy man, but he's also a very personable fellow. I've had the opportunity to talk to him a couple of times since Heller was decided. We didn't get to the mysteries of the Universe and the Meaning of Life, but he's genuinely Good People and very approachable for the Rock Star that he is. :)

Davidwhitewolf
07-14-2011, 2:04 PM
Thanks for helping me boost my post count! I'm not sure I can match your 8 posts per day though :D

Don't fret. Quality has a quantity all its own, or something to that effect. :D

Seriously, your post saying you'd hold off is one of my all-time favorite Calguns posts right now. Your forbearance is more greatly appreciated than you yet know.

andytothemax
07-14-2011, 2:22 PM
Don't fret. Quality has a quantity all its own, or something to that effect. :D

Seriously, your post saying you'd hold off is one of my all-time favorite Calguns posts right now. Your forbearance is more greatly appreciated than you yet know.

Thank you, and you're welcome-- there's a saying in law practice: success is not based on the cases you take; it's based on the cases you don't!
:36:

wildhawker
07-14-2011, 4:03 PM
You mean, all I have to do to hear personally from Alan Gura is threaten to file a case? :chris:

In addition to what EdwardM said, I'd also strongly counsel against baiting Mr. Gura with the threat of a case simply to gain a response. (I do understand that your comment was in jest, but I wanted to reply for the sake of the reading audience who might act on the idea.)

-Brandon

blakdawg
07-14-2011, 7:41 PM
It might be interesting to try to get a pro-2A majority on the boards of the OSD's - MROSD has some incumbents who've been on there for > 20 years.

creekside
07-14-2011, 8:26 PM
Don't fret. Quality has a quantity all its own, or something to that effect. :D

Seriously, your post saying you'd hold off is one of my all-time favorite Calguns posts right now. Your forbearance is more greatly appreciated than you yet know.

+1,000,000 or so.

andytothemax
09-30-2011, 5:18 AM
I finally got a response from the District, the contents of which are unsurprising:

Dear Mr. Watters,

Thank you for your letters dated July 9, 2011 and July 29, 2011 in which you requested an amendment to the District's land use regulations to allow you to openly carry firearms and/or knives for self-defense purposes.

As you know, District Regulation Section 403.1 prohibits the possession of guns, firearms and certain other weapons on District Lands. Section 403.1 was enacted pursuant to California Public Resources Code Section 5560, which permits public entities such as the District to enact regulations and treat violations of such regulations as either misdemeanor or infractions. Section 403.1 and other District Regulations are adopted to provide responsible Stewardship for District lands, to establish orderly use, and to maintain a natural and quiet environment for persons on the land.

We have been monitoring the federal cases involving Second Amendment issues, including McDonald v. Chicago, 130 S. Ct. 3020 (2010), which you cited in your letters, and analyzing their implications on District regulations. McDonald held that an individual's right to keep and bear arms provided by the 2nd Amendment is incorporated and applicable to the states through the 14th Amendment's Due Process Clause. The court did not expressly strike down the City of Chicago's ban on possession of handguns. Instead, the McDonald court returned the case to the lower courts to decide whether Chicago's strict handgun laws, effectively banning the possession of handguns, can be reconciled with the Second Amendment. Notably, McDonald reiterated the caveats set forth in an earlier Supreme Court decision (District of Columbia v. Heller, 554 U.S. 570 (2008) indicating the court did not intend to cast doubt on laws prohibiting the possession of guns in "sensitive places such as...government buildings..." (slip op., p. 40).

With respect to your contention that California state law effectively preempts the District's weapon regulations, California courts have held that State law addressed specific fields of firearm regulation. Fiscal v. City and County of San Francisco, 158 Cal. App. 4th 895, 905 (2008), explains that "[t]he Legislature, instead, has chosen to preempt discrete areas of gun regulation [and] indicates an intent to permit local governments to tailor firearms legislation to the particular needs of their communities." For example, California Penal Code section 12026(b) prohibits local governments from restricting handgun possession in an individual's home, business, or private property. However, this statute does not limit the right of a public entity to exercise its power to control the use of its own property. (See, e.g., Nordyke v. King 9th Circuit No. 07-15763 (2011)) Accordingly, the prohibition of weapons on District lands set forth in District Regulation Section 403.1 does not conflict with Penal Code section 12026(b) or any other State law.

Finally, we reviewed the Nevada state government's response to the order reached in Baker v. Drozdoff (U.S. District Court District of Nevada Northern Division No. 3:10-cv-00426-ECR-RAM (2010)), which you provided. There was no legal opinion published in this matter and the order does not affect the District's weapons prohibition. The order to enter into a preliminary injunction in the Baker v. Drozdoff case was an agreement between the State of Nevada Attorney General and the plaintiff Al Baker. The Nevada District Court did not rule on whether Nevada's prohibition of possession and discharge of functional firearms for self defense in Nevada State Parks violated the Second and Fourteenth Amendments in light of the McDonald decision.

Accordingly, District Regulation Section 403.1 is constitutional and does not conflict with California law. We will continue to monitor Second Amendment cases and State law to ensure that District regulations remain in compliance with federal and state law.

We regret that we cannot accommodate your desire to openly carry firearms (loaded or unloaded) and/or knives for self-defense purposes on District lands. A component of the District's mission is to provide opportunities for the public's enjoyment of the District's preserves. Unfortunately, the District is unable to accommodate many of the requests that we receive from the public in connection with utilizing the District preserves. Although we are unable to satisfy your request, we hope that you will continue to enjoy our preserves in the future.

Regards,

/s/

James Atencio
Assistant General Counsel

cc: David Sanguinetti, Operations Manager

Liberty1
09-30-2011, 5:23 AM
Thanks for the up date.

taperxz
09-30-2011, 6:38 AM
I finally got a response from the District, the contents of which are unsurprising:


This letter is why you don't ask permission and then site cases for them to pick apart. James Atencio's arrogance shows in the last paragraph.

We regret that we cannot accommodate your desire to openly carry firearms (loaded or unloaded) and/or knives for self-defense purposes on District lands. A component of the District's mission is to provide opportunities for the public's enjoyment of the District's preserves. Unfortunately, the District is unable to accommodate many of the requests that we receive from the public in connection with utilizing the District preserves. Although we are unable to satisfy your request,
we hope that you will continue to enjoy our preserves in the future.
Regards,

/s/

James Atencio
Assistant General Counsel

So when did mid peninsula open space become private? When in a public open area not in a school zone did UOC become illegal?

taperxz
09-30-2011, 6:46 AM
Funding/Budget

The District’s primary revenue source is a share of the annual total property tax collected within the District. In fiscal year 2010-2011, this amounted to $27.3 million in tax revenue, a 1.3% decrease from the previous fiscal year. Other revenue sources may include federal and state grants, interest and rental income, donations, land gifts, and note issues. The District has remained fiscally stable over the past year during a persistent recession because of its continued focus on fiscal discipline. A financial profile is published every year in the Annual Report issue of Open Space Views.


This area is funded via property tax and donations. I can't see how they can call the open space district a sensitive place???

Crom
09-30-2011, 8:05 AM
I would wait for SCOTUS to rule on carry in public. Then remail them and ask them to amend their rules consistent with the new Supreme Court ruling. CA state parks are the same way and a thorn in my side for a very long time. Can't wait.

hoffmang
09-30-2011, 9:34 PM
The analysis is very different for licensed carry in the above letter though... :43:

-Gene