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California 2nd Amend. Political Discussion & Activism Discuss gun rights activism and 2A related political topics here. All advice given is NOT legal counsel.

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  #1  
Old 01-24-2011, 3:58 PM
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Default SAN FERNANDO PAYS OVER $44,000, ADOPTS NEW FIREARM POLICES, AND FACTUAL INNOCENCE

Mission Viejo, CA (January 24, 2011) - The City of San Fernando will pay over $44,000 to San Fernando former Coast Guard Reserve maritime law enforcement Officer Jose Diaz and implement new policies and procedures for the improper arrest and seizure of Coast Guard Reserve officer Jose Diaz. The San Fernando Police Department also agreed to a Finding of Factual Innocence.

The lawsuit sought to ensure San Fernando properly trains its officers to deal with law-abiding gun owners. “The San Fernando Police Department give’s out awards to officer’s that ‘achieve benchmarks in firearm confiscations,’” said Davis. “But this contest encourages the illegal confiscation of lawfully possessed firearms by officers who do not understand the laws themselves.”

In November of 2007, then Reserve Coast Guard maritime law enforcement officer Diaz was driving to a shooting range when he was stopped by San Fernando Police Officer Marshall Mack to determine if Diaz had the proper vehicle registration. Upon approaching Diaz’s vehicle, Officer Mack observed a firearms case in the back seat with a firearm cable lock entangled around the handle of the case. Officer Mack was able to open the case without a key. The case contained two loaded magazines and a Glock with no magazine in the well of the firearm and no cartridge in the chamber.

At issue, was whether the cable lock entangled around the handle of the case constituted a locked container constituted a “locked container” and whether a coast guard reserve maritime law enforcement officer was permitted to carry pursuant to the Federal Law Enforcement Officer Safety Act, which allows police officers to carry firearms off duty.

Three years ago, the Law Enforcement Officer Safety Act was passed by Congress and permitted Qualified Law Enforcement Officers to carry firearms regardless of state law. Shortly thereafter, a New York court held that LEOSA applied to certain members of the Coast Guard – the largest continuous maritime law enforcement service in the United States.

“I showed Officer Mack my Coast Guard ID and informed the officer that the LEOSA permitted me to carry a firearm as a Coast Guard maritime law enforcement reserve officer,” said Diaz. “I also informed Officer Mack that I was carrying the firearm lawfully - unloaded and in a locked container.”
Falsely believing that California law required firearms be stored separate from the ammunition, Mack arrested Diaz for unlawful possession of a loaded firearm because a loaded magazine was touching the firearm within the case. Diaz was booked and spent one night and one day in jail.

As California court precedent in People v. Clark, holds that a firearm is not loaded unless the ammunition is in a position from which it can be fired, the District Attorney instead filed against Diaz for unlawful possession of a firearm in a vehicle. That case was subsequently dismissed.

Diaz’s subsequent civil lawsuit for battery, false arrest, and federal civil rights violations languished with two previous attorneys for two and a half years of litigation. Diaz contacted The Calguns Foundation, Inc. for assistance.

“While we cannot financially support every firearms case, we have a stake in many of them,” said Gene Hoffman, Chairman for The Calguns Foundation. “We recommended that Diaz use an attorney knowledgeable in firearm laws and offered informational support.”

Diaz retained firearm rights attorney Jason Davis, who, on the eve of trial, orchestrated a settlement with the San Fernando Police Department. Davis announced the terms of the settlement today, which includes educational policies on “assault weapons,” carry permits, open carry, and LEOSA.

“Public safety is of the utmost importance . . . and that includes safety from infringement of our constitutional rights under the color of law,” said Davis. “With this settlement, and the policies implemented as a result of the agreement, it is my hope that law enforcement throughout the state will get the message that California’s gun owners insist on their rights.”
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Old 01-24-2011, 4:03 PM
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HOORAHH!!!

Sorry to hear Diaz had to go through this ordeal....Thanks to Jason and crew for furthering education in LE establishments.....Perhaps he can devise a POST training block for STATEWIDE circulation!
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Old 01-24-2011, 4:03 PM
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This is great.
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Old 01-24-2011, 4:04 PM
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nice
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Old 01-24-2011, 4:05 PM
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go get em!
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Old 01-24-2011, 4:06 PM
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Major kudos to Jason and Mr. Diaz!!






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Old 01-24-2011, 4:12 PM
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Good work. Battle fought and won. Congratulations to all involved, hopefully saves a few others from a similar fate.
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Old 01-24-2011, 4:12 PM
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Of course they're going to settle... it's only taxpayer's money after all.

Congrats Mr. Diaz and Mr. Davis! I love it when settlements end with a finding of factual innocence.
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Old 01-24-2011, 4:13 PM
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good going
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Old 01-24-2011, 4:14 PM
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So good. Unfortunately, Mr. Diaz was STILL arrested and placed in jail. Not to mention that such events may have cost him his military career and security clearance.
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Old 01-24-2011, 4:19 PM
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As California court precedent in People v. Clark, holds that a firearm is not loaded unless the ammunition is in a position from which it can be fired, the District Attorney instead filed against Diaz for unlawful possession of a firearm in a vehicle.
WOAH WOAH WOAH WOAH WOAH!!!

Why then can't I have a mag in the well and not a round in the chamber? No one in their right mind could say that a loaded mag in the well without a round in the chamber constitutes "ammunition in a position from which it can be fired."

If your gun can fire with no round in the chamber, please, have it checked out by a competent gunsmith- mkay?
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Old 01-24-2011, 4:23 PM
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Even people not from San Francisco can appreciate a good public spanking like this.
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Old 01-24-2011, 4:26 PM
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Quote:
Originally Posted by NiteQwill View Post
So good. Unfortunately, Mr. Diaz was STILL arrested and placed in jail. Not to mention that such events may have cost him his military career and security clearance.
Bingo, although I am glad to hear this has caused a change in policy, it does not change what this guy had to go through because of ignorance.
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Old 01-24-2011, 4:26 PM
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WTG.
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  #15  
Old 01-24-2011, 4:33 PM
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I know that officer well. He has a bad rap around town. This story doesn't surprise me at all.

Next time I run into him i'll make sure to mention it.
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Old 01-24-2011, 4:35 PM
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$44k settlement? Getting your 2A rights violated seems to be turning into quite a profitable business in CA lately. When oh when can I get my firearms illegally confiscated and unjustly spend the night in jail.... hmmm
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  #17  
Old 01-24-2011, 4:37 PM
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Well done, Jason

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Old 01-24-2011, 4:38 PM
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Quote:
Originally Posted by MasterYong View Post
WOAH WOAH WOAH WOAH WOAH!!!

Why then can't I have a mag in the well and not a round in the chamber? No one in their right mind could say that a loaded mag in the well without a round in the chamber constitutes "ammunition in a position from which it can be fired."

If your gun can fire with no round in the chamber, please, have it checked out by a competent gunsmith- mkay?
I believe that is an ambiguous area in the Clark decision.
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Old 01-24-2011, 4:43 PM
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The area of San Fernando is largely either long time conservative homedwellers, or gangs. The police have a hard time there dealing with the gangs, from thier city and the surrounding cities. But, even under tough circumstances, they should have known better. San Fernando is also home to one of the most popular avenues for travel for many So Cal residents as the 210 bisects that area and is a main route to get to the Grapevine. This could have been any of us, geting off the 210 to fuel up, etc.
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Old 01-24-2011, 4:47 PM
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The training bulletin brings little tears of joy to my eyes...

Some samples:

"Because much of the public is unaware of the legalities of "open carrying," if the facts present themselves to be of the "open carry" type, dispatch will advise the caller that California does permit the open carrying of unloaded firearms with some exceptions."

"When making the initial contact with a person carrying a handgun in a holster or otherwise carrying a firearm openly, officers should consider that the individual may be carrying a firearm lawfully, barring any other indicia of reasonable suspicion of a crime being or about to be committed. In assessing the situation, officers must consider the 4th amendment rights of the individuals carrying firearms openly as well as their own safety and the safety of the public."

"Unloaded Open Carry enthusiasts most likely will not produce identification, even if requested. It is their stance that they are complying with all laws and are not compelled to identi$z themselves. In short, there is no authority that requires them to identify themselves. Do not enforce the PC$ 148 solely under this circumstance. Absent any other reasonable suspicions of articulable facts, we cannot arrest for failure to provide Identification. Other law enforcement agencies improperly cite Hibel v. Sixth Judicial District, which allowed for a demand for LD., this case was in Nevada which has a "Stop and I.D." statute. California has no similar requirement for I.D. Thus, it is not a PC 148 to fail to identi$ oneself during an investigative stop. (-In re Gregory S.,ll2 Cal.App.3d 764 (1980).)"

"In order to determine whether or not a firearm is loaded for the purpose of enforcing PC$ 1203 1 , peace officers are authorized to examine any firearm carried by anyone on his or her person or in a vehicle while in any public place, or on any public street, or in any prohibited area of an unincorporated territory. Refusal to allow a peace officer to inspect a firearm pursuant to this section is, in itself, probable cause for arrest for violation of 12031.

It is important to note that the authority granted by this provision does not permit any search or seizure beyond mere inspection of the firearm to determine whether the firearm is loaded. It does not, without additional factors, give you the right to prolong the contact beyond inspection to run computer checks or complete an FI. To do this you must have consent or additional factors that justify a reasonable suspicion detention."

"If a firearm is determined to be lawfully carried at the time of a Penal Code 12031(e) inspection, the firearm must be immediately returned to the individual. If the firearm was removed from an individual's holster, the officer shall return the firearm to the holstered position for the individual so as to not place the individual in a position of brandishing a firearm in a public place."

"BOTTOM LINE FOR CARRYING ISSUES
Law abiding citizens are carrying firearms in compliance with California laws with increased frequency. Police may stop a person who is openly carrying a firearm in a belt holster and may inspect the firearm to see if it is loaded;
however, the person may not be arrested for violating PC$ 12031 if ammunition is not in such a position from which it can be fired, even though the person may have immediate access to matching ammunition. Upon a determination that the firearm is unloaded, the firearm should be returned and the person in possession advised that he or she is free to leave. Further questioning may be done on a voluntary basis."

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Old 01-24-2011, 4:50 PM
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I like that they will take classes on assault weapons. Now people with a AR and a bullet button will be in the clear
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Old 01-24-2011, 4:52 PM
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Thank you, Calguns Foundation
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Old 01-24-2011, 4:54 PM
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Old 01-24-2011, 4:55 PM
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Great victory!
However, just that fact that this program has been going on worries me greatly:
“The San Fernando Police Department give’s out awards to officer’s that ‘achieve benchmarks in firearm confiscations,’

How many innocents have been thrown under the bus with trumped-up criminal charges, or illegally lost their property at the minimum since this awards program went into effect?
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Old 01-24-2011, 4:56 PM
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Again, I would really like to see these violators of fundamental 2A civil rights have to surrender a minimum of 10% of their retirement pensions. I would go so far as to say 10% of EACH officer involved AND 10% from the supervisor. I think that pursuing a % of retirement pensions is the ONLY way to effectively stop civil rights violations.

Give all of the settlement money to Mr. Davis while Mr. Diaz gets the benefit of the retirement pensions.

.
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Old 01-24-2011, 5:02 PM
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Great news!! To Jason Davis the CGF.


Quote:
Originally Posted by rodeoflyer View Post
I know that officer well. He has a bad rap around town. This story doesn't surprise me at all.

Next time I run into him i'll make sure to mention it.
The unfortunate part is that this jackazz still has a job. Violate someones civil rights, get your city sued, city pays out, then walk away scott free
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Old 01-24-2011, 5:03 PM
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Way to go..!!!!!!!!!!!.....I will print this and carry a copy in my GUN case when I travel.

Thanks again.!

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Old 01-24-2011, 5:16 PM
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WTG CGF, Mr. Davis and Mr. Diaz!

This is what happens when the law-abiding person is expect to know every inch of the law, while some LEO's don't get any training or have any understanding themselves in the matter.

It's gonna get real expensive...
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Old 01-24-2011, 5:21 PM
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Quote:
Originally Posted by Blackhawk556 View Post
I like that they will take classes on assault weapons. Now people with a AR and a bullet button will be in the clear
Ironically, I presented a copy of the Flowchart to none other than.......OFFICER MACK little more than a week ago.

The shame is that he isn't that bad a guy, in the "Vic Mackey" sense I suppose I would say. He's given me crap more than several times over the years (i've lived in San Fernando my entire life), but not once did he actually write me a ticket. All we can hope for is that he and the rest of the department learn from being overzealous.

He needed to be taken down a notch, but i'll still say if I call for help I hope he shows up first.
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I know the safety nazis will kill me for this, but there's nothing like a mag dump of .223 tracer rounds at night out of your AR with a little bit of firewater in your system. Man what a feeling!
"Combining blanks and cleaning rods in the M16A2 rifle is not an acceptable means of acquiring “meat for the tribe.” It should be noted it’s a b**ch unpinning a squirrel from a tree and you NEVER get your cleaning rod back."
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Old 01-24-2011, 5:23 PM
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Originally Posted by JasonDavis View Post
“The San Fernando Police Department give’s out awards to officer’s that ‘achieve benchmarks in firearm confiscations,’” said Davis.
This is really what is so disturbing. How many other departments have similar programs? And how many law-abiding gun owners suffer the consequences.
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Old 01-24-2011, 5:27 PM
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Originally Posted by RobG View Post



The unfortunate part is that this jackazz still has a job. Violate someones civil rights, get your city sued, city pays out, then walk away scott free
He also took a bullet to the face while off duty on his way in to work. That was 10-12 years ago I think. I highly doubt he is walking away "scott free", but i'm sure he's been given more leeway than another officer might have gotten.
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Originally Posted by jonnyt16 View Post
I know the safety nazis will kill me for this, but there's nothing like a mag dump of .223 tracer rounds at night out of your AR with a little bit of firewater in your system. Man what a feeling!
"Combining blanks and cleaning rods in the M16A2 rifle is not an acceptable means of acquiring “meat for the tribe.” It should be noted it’s a b**ch unpinning a squirrel from a tree and you NEVER get your cleaning rod back."
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Old 01-24-2011, 5:35 PM
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More good news, excellent.
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Old 01-24-2011, 5:47 PM
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CGF & Jason Davis
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Old 01-24-2011, 5:54 PM
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$44K..that's all? Man should have got more. A lot more.
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Old 01-24-2011, 6:09 PM
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Thank you Mr. Jason Davis.

I love this place

Vick
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Old 01-24-2011, 6:12 PM
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Awesome! Well done.
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Quote:
Originally Posted by bwiese View Post
Be like me...I own over 100 AR mags I got before the ban set in. Hell, I bought a ton of other magazines as well...I can throw hicap mags on the floor and swim in them.
Liberals want my guns, conservatives want my porn. I'll part with neither.
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Old 01-24-2011, 6:20 PM
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this is certainly good news, however, as a law enforcement coastie he had every right to carry?! thats goos news for all the MP's out there-does the law also recognize people who were MP's and then didn't re-up?
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Old 01-24-2011, 6:24 PM
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Quote:
Originally Posted by MasterYong View Post
WOAH WOAH WOAH WOAH WOAH!!!

Why then can't I have a mag in the well and not a round in the chamber? No one in their right mind could say that a loaded mag in the well without a round in the chamber constitutes "ammunition in a position from which it can be fired."

If your gun can fire with no round in the chamber, please, have it checked out by a competent gunsmith- mkay?
I don't have any cases to back it up (and of course IANAL), but here's my take:

Ammunition inside of a magazine that is inserted into the magazine well of the firearm is placed in a position from where it can be fired solely by the operation of the weapon itself.

A magazine that is external to the firearm requires the user to insert it before operating the firearm. It requires extra steps outside the operation of the firearm itself.
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Old 01-24-2011, 6:25 PM
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Does this clarify the meaning of "locked container" as relates to firearms in the Penal Code?
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Old 01-24-2011, 6:25 PM
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Quote:
Originally Posted by Centurion_D View Post
$44K..that's all? Man should have got more. A lot more.
I am surprised that Davis got him anything at all since the case was not locked in a way that prevented the officer from getting the gun without using a key or a combination lock.
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