Wednesday, September 16, 2009
The movement to openly carry unloaded firearms in public places in San Diego County is centered in Escondido. Escondido Open Carry will appear at 19 events this month. We look at what's been happening, why they do it, and find out what law enforcement thinks about it.
MAUREEN CAVANAUGH (Host): I'm Maureen Cavanaugh. You're listening to These Days on KPBS. The way you feel about the Open Carry movement kind of depends on how you feel about the guy next to you wearing a .44 Magnum or a Glock semi-automatic pistol on his belt. Some people feel comforted by the fact that law abiding people can legally carry unloaded weapons freely in San Diego. Others are not so crazy about the idea, especially considering that the gun wearers are also legally allowed to carry ammunition. To members of the Open Carry movement, their right to carry weapons is an essential part of the freedoms that all Americans enjoy. And in the spirit of 'use it or lose it,' the Open Carriers are determined to exercise their rights to carry unloaded weapons individually and at various events planned around San Diego. Here to explain more about the Open Carry movement and what the law says about carrying weapons in San Diego are my guests. Gerald Reaster is co-founder of Escondido Open Carry. And good morning, Gerald.
GERALD REASTER (Co-founder, Escondido Open Carry): Good morning.
CAVANAUGH: Robert Amador is a deputy district attorney, San Diego County. Robert Amador, welcome.
ROBERT AMADOR (Deputy District Attorney, County of San Diego): Thank you. Good morning.
CAVANAUGH: And Bryan Wildenthal is professor of law at Thomas Jefferson Law School. Bryan, good morning.
BRYAN WILDENTHAL (Professor of Law, Thomas Jefferson Law School): Thanks very much.
CAVANAUGH: And we invite our listeners to join the conversation. Would seeing a citizen carrying a weapon in public disturb you? Or make you feel more protected? Give us a call with your questions or your comments. The number is 1-888-895-5727, that's 1-888-895-KPBS. Gerald, first off, for our listeners who are unfamiliar with the Open Carry movement, tell us, first of all, what it actually looks like. What kind of weapon do you have and how do you display it?
REASTER: Well, I'm – Myself, I have a Ruger SP101 revolver in 9mm. I've got a small black holster, actually it's part of a shoulder rig but I've converted it to wear on my hip.
CAVANAUGH: And where do you carry this weapon?
REASTER: On my right hip.
CAVANAUGH: No, I mean actually out in public.
REASTER: Oh, oh, oh, anywhere except within a thousand feet of a school or in a federal or – building, that type of thing. Any place else, it's legal.
CAVANAUGH: Why – Now you have started, as I said in the introduction, Escondido Open Carry. Tell us about what that organization is.
REASTER: Well, it's a grassroots organization that I started in my home. I keep seeing the erosion of our Second Amendment rights by the lawmakers in Sacramento and I'm thinking, you know, I did 20 years in the navy and I've always kind of considered myself as a patriot and I've always believed in the constitution. And now I see it's being treated as just a worthless piece of paper and it really upsets me at times. That's my main motivation for this.
CAVANAUGH: And what do you – do your members do? And how many are there in Escondido Open Carry approximately?
CAVANAUGH: And what do you guys do?
REASTER: Well, we've got maybe 48 to 50 right now, all right. And we try to – I'll – I schedule events where I can. A lot of times people are working. A lot of people work. See, I'm retired military and actually I retired from San Diego County also. So I'm retired totally and I can go where, you know, any time I want.
REASTER: But a lot of my members work during the week and I try to schedule things on the weekend for them. But currently, I've been going to the Cruising Grand event they have here in Escondido and to their farmers' market. They have that on Tuesdays, and the Cruising Grand is on Fridays.
CAVANAUGH: And tell me what your understanding is of the law surrounding the open carrying of guns, unloaded guns, here in San Diego.
REASTER: Well, it's legal. That – You know, I mean, if you follow the certain restrictions about the schools and federal buildings, okay. Other than that, basically, I'm carrying a gun out there to – it's a symbol of the erosion of our benefits under the constitution. It's not – it's not a – it's unloaded. It's a symbol. It's not used for protection. Actually, I carry pepper spray for protection.
CAVANAUGH: I understand. We are talking about the Open Carry movement in San Diego, and the number is 1-888-895-5727. I'd like to bring Robert Amador, he's deputy district attorney of San Diego County, into the conversation. Well, after a February open carry event in Pacific Beach, Robert, you sent a memo to law enforcement in jurisdictions across the county about how the law relates to carrying guns. So what are some of the issues that law enforcement faces with people carrying firearms even if they're unloaded?
AMADOR: Well, I think the first part is, is they have to know what the law is regarding carrying firearms in public, and I think that a lot of police officers, at the time, did not necessarily know that it was legal to do the open carry type situation. So there were a couple incidents and we wanted – my job is to do training and so I sent out a training bulletin which informed them of the Open Carry movement, what they were about, and how it was legal to carry a firearm which is unloaded in an open holster.
CAVANAUGH: And so what are – what is the discipline that police have to use when they see someone carrying a gun on their belt? What do they do? What does a police officer do?
AMADOR: Well, they have the right under Penal Code Section 12031-E to inspect the weapon to see if it's unloaded or not. Now every situation is going to be different for a law enforcement officer. Some of those situations may be, based on their training and experience and what's going on, that they're going to make a detention and there may be a situation where they're making that detention with their guns out. There may be other situations where they are coming up and having a contact with the individual and it's low key, so it will run the gamut.
CAVANAUGH: And I want to ask you, Gerald, have you been basically stopped by a police officer?
REASTER: Oh, yes. Yes, we – Our first Open Carry here in Escondido, Escondido Police Sergeant Cramer, he came and he did the 12031-E check on us, all right. But here's my thought, that, you know, I've yet to see a criminal that carries their gun openly. I would assume that the police, if they see someone with a open carry gun on their hip, why don't they consider that to be a law abiding citizen rather than even considering some sort of a hot stop with a drawn gun?
CAVANAUGH: Do you want to take that one, Robert?
AMADOR: Well, I think what happens is that when they – They don't just normally see a person wearing a gun. What they normally will get is – Well, two situations. One, many of the open carry individuals have notified law enforcement that they're going to be doing an open carry.
REASTER: Yes, we do that also.
AMADOR: And so that has been very beneficial to law enforcement. The problem is, is where you have an individual who's walking around a store, they have a gun, the customers don't understand what's going on, they start complaining, and the call comes in to the police department that there's a suspicious person with a gun. So that becomes what the problem is and so the police are going to have to handle it tactically and making sure that they're safe.
CAVANAUGH: We are talking about the Open Carry movement, the movement to carry unloaded weapons in public in San Diego and in other areas of the country. 1-888-895-5727 is the number to call to get in on the conversation, and Jennifer is calling from San Diego. Good morning, Jennifer. Welcome to These Days.
JENNIFER (Caller, San Diego): Thank you. I just wanted to make a comment. I was shot in Chicago when some nutjob was going to try to kill his girlfriend, and I think that it's just going to make it easier for criminals to carry loaded guns because cops don't have the time to check out everybody that's wearing a gun. And let me tell you, sir, the criminals where I come from, they wear their guns where people can see them.
CAVANAUGH: Okay, thank you for that, Jennifer. Thanks for that comment. I want to bring Bryan Wildenthal into the conversation. He is professor of law at Thomas Jefferson Law School. Let's get some grounding here in what we're actually talking about, about what the Second Amendment actually says, how pro- and anti-gun factions have interpreted it.
WILDENTHAL: Yeah, well, thanks for inviting me, and it's a – it's been a fast changing area of law in the last year or two. I think Mr. Reaster's comments and Mr. Amador's comments both reflect that ordinary citizens and law enforcement have both been kind of getting up to speed in understanding the law better. At the constitutional level, there is the Second Amendment which says, quote, a well-regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed. Now just last year, just a little more than a year ago, June of 2008, the U.S. Supreme Court, in a landmark decision, a 5-to-4 decision, showing that they're split just as the country is split, ruled that that amendment does guarantee an individual constitutional right to keep and bear a weapon at least to some extent. That case involved a District of Columbia law almost totally banning even possession of a gun in the home even and requiring a person to keep it totally unloaded and inoperable even in the home. So it didn't address all these issues about carrying a weapon in public. Furthermore, that decision only applied to the federal government or federal entities like the District of Columbia so it's not yet been clarified whether this right to bear arms could be restricted by state law or local regulations. However, most lawyers, and I would say as a professor of constitutional law, I think it's very likely that this right will be found to apply to state and local laws. Indeed, there's a case working its way up in the lower courts from California which initially said that there is a constitutional right to keep and bear arms and that the state and local governments cannot interfere with that. That was a three-judge decision by the 9th Circuit Court of Appeals. It's now temporarily on hold as the full 9th Circuit takes a look at it. If you're a betting person, I would say they're probably going to uphold a right to bear arms.
WILDENTHAL: Now the question is what does that mean as applied to open carry in public, loaded, unloaded, that type of thing. It's not clear. We'll have to see how the case law develops, but I think it is certainly valuable, as Mr. Amador notes, for law enforcement, for police officers to start getting more familiar with the law and frankly, also, citizens, both those who are in the Open Carry movement and other citizens like the caller who may be alarmed by it. They should also become a bit more familiar with the law because there are law abiding people who will assert this right, and people need to become educated about that so they don't fly off the handle or get nervous or overreact when they see someone in a situation like that.
CAVANAUGH: We are talking about the Open Carry movement. The number is 1-888-895-5727. Let's take another call right now. Eleanor is calling from Encinitas. Good morning, Eleanor, and welcome to These Days.
ELEANOR (Caller, Encinitas): Yes, I really appreciate the professor's clarification of the ruling, of the Supreme Court ruling. I have to say at the outset that I was familiar with the Supreme Court decision, the 5-4 decision. It disturbed me very much because I can't imagine a society with everyone who feels they have the right under the constitution to carry a weapon walking around in the open with an unloaded weapon. If I were sitting on the trolley or on a bus and saw people carrying guns in the open, I would be very intimidated, very frightened. It's like going back to the wild, wild west. We do have a militia. We have a police force. We have a national guard. We don’t need to carry around weapons for our protection either as a symbol or as a way of asserting our rights under the constitution.
CAVANAUGH: Eleanor, thank you for your comments. And I'd like to get some reaction from Gerald Reaster.
CAVANAUGH: He's co-founder of Escondido Open Carry. Gerald.
REASTER: Well, I'd start off with first off to say that it's been upheld quite a few times that the police have no right to protect the individual, just the public at large. Our own self-protection is best served by us. The police, you generally are reactive after the fact. And, you know, if I'm going to be held up, I would like to at least have a chance to defend myself rather than wait for the police to come around and draw the chalk mark around my body and, you know, send the (unintelligible). Okay, that's my reasoning. Now if I could get a concealed carry permit, I wouldn’t be out there carrying openly.
CAVANAUGH: I see. What…
REASTER: They won't…
CAVANAUGH: …what about Eleanor's concerns, though? What about the concerns of people that are really, really – other law abiding citizens who are really going to be made uncomfortable by what they see as the intimidation of your carrying a gun…
REASTER: I would…
CAVANAUGH: …on your belt?
REASTER: I would ask them this: Would they be intimidated by someone at a political rally holding up a sign? That's all this unloaded gun on my hip is. It's a symbol, just like a, you know, a sign of yes, no or whatever at a political rally. It's a symbol. It's not meant for intimidation. I'm trying to increase public awareness to that fact. Her reaction tells me that a lot of people don't understand the law and the need for self-protection.
CAVANAUGH: Well, I wonder, Robert Amador, deputy district attorney of San Diego, what – when a policeman does stop someone and asks them to present their weapon to see whether or not it's loaded, is the officer treading on risky legal ground there?
AMADOR: Not at all, no. The officer – The Penal Code specifically allows to check the weapon so they're perfectly within their rights and their responsibilities to do so.
CAVANAUGH: Now, I…
WILDENTHAL: There is – there is actually…
CAVANAUGH: Sorry, Bryan.
WILDENTHAL: …an issue there. Yeah, the – I certainly defer to Mr. Amador that the – as far as what the state law specifies, that it purports to authorize the check whether the weapon's loaded. Under the Fourth Amendment of the Constitution, however, if there is – if the courts do perhaps confirm that there is a Second Amendment right to carry a gun either openly or concealed, like I said, let's take the open carry situation, it's certainly debatable whether the police, without any reasonable suspicion or probable cause would have a right to stop an apparently law abiding person…
WILDENTHAL: …just because they appear to be carrying a weapon. Now the courts will presumably sort that out and certainly, as I suspect Mr. Reaster would agree, anyone who is carrying a gun would be well advised to cooperate, of course, with any…
WILDENTHAL: …law enforcement. You don't want to question a law enforcement agent in the moment but there could well be some follow-up litigation about that and perhaps some lawsuits involving that, so it's not actually totally clear cut that the police would be within their rights in that situation.
CAVANAUGH: And, Robert, I did want to follow up on a comment that Gerald made, and that is that the police are not required to protect individuals. Isn't one of the mandates of the police to defend and protect the citizenry?
AMADOR: Absolutely. And I didn't really understand what he was trying to say by his comment. It seemed introductory to the other comments he wanted to make, which are essentially that, you know, people have a right to defend themselves in case a certain situation arose. I don't know whether carrying that – those guns are going to protect you or they're going to cause problems in a variety of ways. If someone is going to be an open carry individual, some law enforcement are concerned that they're the ones who may end up becoming victims. It's going to take a bit of a time for them to get their gun loaded, and it certainly makes them a potential target for someone who wishes to steal a gun. A couple weeks ago we had a trolley officer who was shot and his gun stolen, and here's an individual who comes up and robs someone who's armed to get the gun. So people who, it it's unloaded, they certainly face certain risks.
CAVANAUGH: Let's take another call. We are taking your calls at 1-888-895-5727. And Mike is calling from Fallbrook. Good morning, Mike, and welcome to These Days.
MIKE (Caller, Fallbrook): Hello. Thank you. Yes, I have a couple points. Your guest says his gun is symbolic but if he just wants a symbol why doesn't he carry a toy gun? And it becomes less symbolic in about two seconds it takes him to load that thing. And my second point is the Second Amendment specifically uses the words 'well regulated' and gun proponents always seem to – they never mention that little 'well regulated' part, and I think it needs to be well regulated. Thank you.
CAVANAUGH: Well, thank you, Mike. And a lot of that was directed towards you, Gerald, so you get a chance to respond.
REASTER: Well, the well-regulated militia part was basically not applied in this as far as the Supreme Court.
REASTER: And I can't cite them right now but there've been at least two or three court issues where it's been resolved that the police do not have a right – or a mandate to protect any specific individual in a society. They have to protect the society at large. But if I got robbed, I couldn't sue the police for not protecting me because they do not have a mandate to protect me, specifically, just the public at large. It's been appealed in a couple of cases. I could probably dig up some research for you…
REASTER: …in a day or so.
CAVANAUGH: Well, we got a no on that from Robert, and Bryan is shaking his head as well so that seems not clear.
WILDENTHAL: Well, what Mr. Reaster's referring to perhaps is that if in a situation where the police for some reason lack the resources or can't respond in time, you may not be able to sue the police and impose a duty on them, make them, you know, pay damages for not showing up. I think the police within the limits, and Mr. Amador can correct me or follow up on this, I think within the limits of their resources and availability, they do have a charge and do do their honest best to protect all members of the public. You can't protect the public generally without protecting the individual members of the public, person by person. Now it is a fair point – Advocates of open carry will point out that the police can't be all places at all times, and so they do make the point that, and Mr. Reaster made it effectively, that there could be an argument for individual self-defense. I did want to step in – the caller had mentioned and then Mr. Reaster mentioned this issue of the well-regulated militia. Now there's certainly a very healthy debate about that and reasonable people can and do disagree about what the Second Amendment means when it has that preface, that clause saying it's for the purpose of a well-regulated militia. Rightly or wrongly, the Supreme Court has ruled and this is now the binding law of the country. The Supreme Court has ruled that that militia clause merely explains the reason that the Second Amendment guarantees the people generally the individual right to bear arms. That is, it is so that there will be a well-armed populace available to serve in a militia and so it doesn't – that, in itself, doesn't mean that the right only applies in a well-regulated militia. Now having said that, the Supreme Court, in that ruling, did not endorse an absolute right to bear arms by any means. The court very carefully and specifically said they were only striking down a law totally banning any possession of a gun, or almost totally, in the home. And if I can quote from the opinion, the court said, 'nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons, the mentally ill, or laws forbidding the carrying of firearms in sensitive places like schools or government buildings.' And there are some other reasonable regulations they suggested. The court interestingly did not speak to the issue of open carry or concealed carry. They did note that courts have generally upheld concealed carry laws but they didn't tip their hand as to whether they agreed with that because it simply was not an issue in that case. So in – So it is an interesting problem and, of course, I'm sure the advocates of open carry say, well, as long as concealed carry's restricted then our only other option is to open carry.
WILDENTHAL: If you have a right to bear arms, you obviously have to either carry it openly or concealed. Maybe there is an argument to liberalize concealed carry so that people don't get as alarmed by the open carry and there will be less of a chance to grab a gun, as Mr. Amador said to steal a gun, if someone has it secured in a body holster or something.
CAVANAUGH: But, of course, the concealed weapon is another problem in and of itself, isn't it Mr. Amador?
AMADOR: It is. There's few people who are able to have concealed weapons permits. If you carry a gun concealed, it is a crime by itself whether it's loaded or unloaded.
CAVANAUGH: Right. I wanted to point out with you, Bryan, that this recent Supreme Court decision, which sort of upheld the individual right to bear arms, was a reversal of precedent that the Supreme Court was in the process of building towards basically saying that the right to bear arms was for the purpose of having a well-regulated militia.
WILDENTHAL: Actually, there was no clear Supreme Court precedent. There – At the Supreme Court level, there were precedents saying that the right did not – whatever the right was, it did not apply to the states and that's because historically the Bill of Rights did not historically apply to the state and local governments. There was a case from the 1930s saying – involving a federal gun regulation, saying that the right to bear arms did not include the right to possess a sawed-off shotgun but that case – in fact, that case, according to the Supreme Court's recent decision, implied that if it wasn't a sawed-off shotgun or an unusual dangerous weapon, that you would have an individual right. So actually the case was the first case in a long time to really address the issue but there was no prior clear Supreme Court precedent on the meaning of the Second Amendment itself.
CAVANAUGH: I see. I see. There are a lot of people who want to join the conversation. Let me try to get some more calls in. And, Shawn, is calling – Shawan (as pronounced) is calling from La Jolla. I'm sorry if I mispronounced your name. Good morning.
SHAWN (Caller, La Jolla): It's Shawn.
CAVANAUGH: I'm sorry?
SHAWN: Good morning. It's – Good morning, my name is Shawn.
CAVANAUGH: Yes, hi, Shawn.
SHAWN: I have three points. First of all on the issue of whether he's carrying this as protection because he feels the police can't protect him and it's, you know, it's not the same as carrying a sign. A loaded gun is protection. A non-loaded gun isn't much protection unless you're going to whack somebody over the head with it. So for him to be able to use it to protect himself against someone who's trying to accost him or rob him, he's got to take the time to load that weapon. So that argument doesn't fly with me.
SHAWN: But if the police are taking their time to check these guys who are open carry to make sure that they're not loaded, then that's time that they're taking away from their regular duties, which may be protecting the rest of the public. And number three, if I'm in public, especially myself as a woman or with my children, I see somebody with a gun, I can't tell by looking at them whether they're law abiding or whether they're a criminal. I'm going to call 911 and I'm going to get out of that area. So I really don't buy his arguments and I don't see how that gets him anywhere.
CAVANAUGH: Well, thank you very much for your comments. Robert, I wanted to ask you, what – we've heard Gerald say that basically his feelings about exercising his rights under the Second Amendment being very important to him, well, I wonder what you think the point of the Open Carry movement is.
AMADOR: Well, they have their rights under the Second Amendment. They want to be able to wear the guns in public, and what their reasons are are their own, and there's a variety of reasons they can be. One may be that they want to show it as a symbol. One may be they want to be cool. They want to be wearing a gun around. I can't tell you why these individuals want to do that.
CAVANAUGH: Okay, let's take another call. Frank is calling from El Cajon. Good morning, Frank.
FRANK (Caller, El Cajon): Morning, good morning. I – My concern is what about my rights to life, liberty and the pursuit of happiness? I take my children to a Home Depot, I see somebody walking down the aisle with a gun in it's holster. I have no idea if that person's law abiding or not. In fact, most of the people in San Quentin were law abiding until they committed their first crime. The shooter at Virginia Tech was law abiding until he killed 21 people. The fellow that killed the three police officers in Pittsburgh was law abiding until he pulled the trigger. So we don't know that until after the fact. Must I wait until my kids get killed…
FRANK: …to say, oh, he wasn't law abiding? I should've called 911?
CAVANAUGH: Thank you for that comment. Gerald, what about that? What about the feelings that people have seeing you carrying a weapon?
REASTER: Well, to me, like Frank just said, he doesn't understand his constitutional rights and doesn't understand, really, the meaning – If he's got children, he needs to protect his children. If he's so horrified by the sight of a gun, I would think that he would educate himself and his children on the subject. I'd – As I said earlier, the lady Shawn who called in, I don't carry the gun for protection. I carry pepper spray for protection. It's a symbol for me. I don't carry it because I am trying to feel cool or anything like that. I'm doing a political protest.
CAVANAUGH: And, Gerald, finally I wonder do you think there should be restrictions on gun ownership or gun carrying? And what would those restrictions be?
REASTER: Well, I'll put it to you like this, if it were possible for me to get a concealed carry permit, I wouldn't be doing this. I wouldn’t be carrying openly in public. But it's – In San Diego County, the sheriff doesn't think that my personal life is worth giving me a CCW for it. Now Dianne Feinstein, she has a concealed carry permit and I always wonder why is her life worth more than mine.
CAVANAUGH: No, but what I'm saying is do you think there should be any restrictions on gun ownership or gun carrying?
REASTER: Oh, yes, certainly, people that are mentally defective, felons, you know, there may be some other categories that would have to be decided but, yes, I don't think there should be any restrictions. Like I said, I could live with a concealed carry. I think that's a restriction, too, but I could live with that because it allows me the right to have that God-given right for self-defense.
WILDENTHAL: If I could…
CAVANAUGH: Bryan, yes.
WILDENTHAL: …step in for a moment. Yeah, I'm a little bit surprised by many of the callers kind of stating if they would see someone, you know, just walking in public somewhere that they would call 911 and assume this is a lawbreaker or something. One could ask – Again, the common sense question, why would someone who has nefarious intentions…
WILDENTHAL: …be carrying the weapon open and holstered. The other thing is, law enforcement is – we have a principle under our constitutional system which is innocent until proven guilty. Unless there is some affirmative probable cause to see that someone is committing a crime or threatening a crime, it's not really, seems to me, the most appropriate social reaction to leap to the assumption that this is a mass murderer about to go on a spree. And law enforcement operates under that same rule; they can't, you know, again, arrest someone unless they have probable cause that someone has committed a crime. And I – People should consider whether they're misusing 911 if they are making those calls without really a solid basis.
CAVANAUGH: Well, we might call 911 if we saw somebody carrying a hatchet in a park, too.
REASTER: Well, the statutes at…
WILDENTHAL: Depends if they're chopping wood, I guess.
CAVANAUGH: Well, we have to leave it there, gentlemen. I'm so sorry. Gerald Reaster, co-founder of Escondido Open Carry, Robert Amador, deputy district attorney of San Diego County, and Bryan Wildenthal, professor of law at Thomas Jefferson Law School. Thank you so much. I want to tell everybody whose calls we couldn't get to, you can carry on this conversation online. Please post your comments, KPBS.org/TheseDays. And stay with us for hour two of These Days coming up in just a few minutes.