74 year old man arrested in San Jose CA for OC near a school

This is a discussion on 74 year old man arrested in San Jose CA for OC near a school within the Open Carry Issues & Discussions forums, part of the Defensive Carry Discussions category; 74-year-old San Jose man arrested for carrying firearm near school - San Jose Mercury News...

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Thread: 74 year old man arrested in San Jose CA for OC near a school

  1. #1
    Member Array mfcmb's Avatar
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    74 year old man arrested in San Jose CA for OC near a school

    In the heat of the moment, what matters is what your body knows -- not what your mind knows.

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    Member Array Beretta8045's Avatar
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    While I support what he's trying to do, you've got to know the law first.
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    "The handgun would not be my choice of weapon if I knew I was going to a fight....I'd choose a rifle, a shotgun, an RPG or an atomic bomb instead."

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    Member Array jaredpointer's Avatar
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    Looks like he should have read up on the local laws before he just decided to put an unloaded 357 in his waistband and go for a walk.

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    And, how many times have folks here talked about the fact that you don't ask LEs questions about the law. You can't frankly even rely on the advice of an attorney unless he specializes in that area of law and you have spent bundles having him specifically research an issue.

    Some common sense and willingness to check on the law oneself is what is needed.

    Poor guy. And, I don't see where loaded or not would make a difference. CA either has a law making what he did unlawful or it doesn't. Federal law applies too, and .... well, duh, someone wasn't thinking.

    Still, I wish him good luck and hope the authorities find a way to turn it into either a minor misdemeanor or dismissal of the charges.

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    VIP Member Array ccw9mm's Avatar
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    Quote Originally Posted by Beretta8045 View Post
    While I support what he's trying to do, you've got to know the law first.
    Yes.

    4 year old man arrested in San Jose CA for OC near a school

    "They all jumped out at us and pulled their guns like they were going to shoot us," she said.

    "I was against it ... I thought this might open a can of worms."
    All for not threatening anyone.

    Like it or not, I believe this is yet another prime example of how silly it all is, the blind, zero-tolerance, lock-down, fearful, screamin'-jeebus type responses to normal folks deciding to carry the means of their own defense. Of course, the screamin'-jeebus types won't see it that way, at all.

    I wonder if it's going to take a near-death experience (similar to that of Israelis) to force the people of this land to realize the ultimate truth: that being capable of withstanding attack until the cavalry can arrive to assist isn't a bad thing. It surely isn't criminal. I hope we all don't have to get that far down the path to destruction before the lesson is learned.
    Your best weapon is your brain. Don't leave home without it.
    Thoughts: Justifiable self defense (A.O.J.).
    Explain: How does disarming victims reduce the number of victims?
    Reason over Force: The Gun is Civilization (Marko Kloos).
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    Distinguished Member Array MinistrMalic's Avatar
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    He's got nothing to go on IMO that he didn't know the law. If you believe what you see on TV then you get what's coming to you. And not knowing that there are exceptions is his own fault, not the officers he asked. So he would have taken it to a courthouse?

    He's playing the dumb game, but it's not going to work. He is responsible for knowing what he is doing, and if he didn't check his local, state, and federal laws then he gets what is due him.

    This kind of story just frustrates me.
    "...whoever has no sword is to sell his coat and buy one." (Luke 22:36)
    Christianity and Self Defense from a Biblical Perspective

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    VIP Member Array ccw9mm's Avatar
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    Quote Originally Posted by MinistrMalic View Post
    He is responsible for knowing what he is doing, and if he didn't check his local, state, and federal laws then he gets what is due him.

    This kind of story just frustrates me.
    The whole concept of statutory criminalization of otherwise benign acts should frustrate us all, his responsibilities to understand the laws that currently apply notwithstanding.

    Our just due, IMO, in a "land of the free" should be: equality of liberty, applied liberally. What's frustrating to me is how common governance so very often achieves exactly the opposite.

    Still, the lesson is what it is. Go around with eyes closed and you'll get what you get.
    Your best weapon is your brain. Don't leave home without it.
    Thoughts: Justifiable self defense (A.O.J.).
    Explain: How does disarming victims reduce the number of victims?
    Reason over Force: The Gun is Civilization (Marko Kloos).
    NRA, GOA, OFF, ACLDN.

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    VIP Member Array chiefjason's Avatar
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    "Fontano was arrested Monday after he and his girlfriend took a shortcut through a field at Allen at Steinbeck School."

    So was he on school property? I know the 1000' rule that gets kicked around. IIRC, NC does not have a statute to enforce it. But school property is a big no no. I spent a month or so researching before I took the leap. To much of a chance to take with just taking someones word for it.

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    Member Array aikidoka's Avatar
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    Heck, when I carry (CC or OC) I don't even walk on the sidewalks that go around the school property. I walk on the other side of the street even if it takes me out of my way. I also don't cut through the local university property either. I think the laws are stupid but I'm not taking chances.

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    Distinguished Member Array Spec's Avatar
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    Yes he should know the law first but the LEO's are out of line drawing their guns when a 74 year old man and his girl friend are just walking. Yes i always knew those 74 year olds are trouble makers and want to shoot school up... You have got to be out of your mind.
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    Distinguished Member Array PastorPack's Avatar
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    Quote Originally Posted by Hopyard View Post
    Some common sense and willingness to check on the law oneself is what is needed.

    Poor guy. And, I don't see where loaded or not would make a difference. CA either has a law making what he did unlawful or it doesn't. Federal law applies too, and .... well, duh, someone wasn't thinking.
    +1 on the common sense needed.

    CA law is pretty clear on all this. Open Carry is legal as long as the gun is unloaded.

    However, Federal 1000' rule applies, UNLESS you have a CCW and carry concealed.
    God is love (1 John 4:8)

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    Member Array UnklFungus's Avatar
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    Quote Originally Posted by PastorPack View Post
    +1 on the common sense needed.

    CA law is pretty clear on all this. Open Carry is legal as long as the gun is unloaded.

    However, Federal 1000' rule applies, UNLESS you have a CCW and carry concealed.
    Just to back up what is mentioned above^^^

    GUN-FREE ZONES ACT: MYTH VS. REALITY

    GUN-FREE ZONES ACT: MYTH VS. REALITY | Print |
    by Gun Owners of America
    8001 Forbes Place, Suite 102
    Springfield, VA 22151
    (703)321-8585

    Some advocates, both in Congress and in the Second Amendment community, have attempted to dismiss the tragic sweeping importance of new federal legislation to create expansive "gun free zones" around every American school. Regarding this sweeping ban, some have claimed that "its effect on gun owners will be minimal" and that in most cases, the new law will "have little effect."

    Of course, the anti-gun zealots did not work frantically to pass this gun ban merely because they felt it would have a minimal effect. And EVEN IF the impact of this new law was minimal, gun owners should be outraged by ANY law restricting their rights. The Second Amendment states that the "right to keep and bear arms shall NOT BE INFRINGED." Those words do not leave any room for making compromises.

    While some Second Amendment advocates have minimized the significance of the "gun free zones," they further discount its importance by predicting that the act will be declared unconstitutional by the courts. And yet, ironically, REPUBLICANS on the House Judiciary Committee have issued a statement just as confidently predicting that it will be upheld by the courts.

    Here are some of the questions that been raised, together with the answers to those questions:
    Is this a sweeping piece of legislation?

    The "gun free school zone" legislation would create a virtual 1/2 mile wide "gun free" circle around every American school (or a 1,000 foot zone going in any one direction from any school) -- a zone which could possibly include home schools. Anyone carrying a gun within this "gun free zone" would be subject to five years in prison, unless he or she has fulfilled one of the government-ordained exceptions to the law -- these exemptions treating our liberties more as privileges, rather than rights. (More on this below.)
    Isn't this the same as the law that was passed in 1990?

    The new law is virtually word-for-word the same as the previous law. When the first disastrous "gun free zones" provision was passed in 1990, it was almost immediately challenged. The effective date was January 27, 1991. By the first months of 1992, the events triggering the Lopez case, which ultimately overturned the law in the Supreme Court, had transpired. Aggressive enforcement was held in abeyance while the constitutionality of this language wound its way through the courts.

    In this sense, this law was little different from other gun bans in which enforcement was gradually tightened until the full repressive impact of the legislation had been eased into place.
    Will this law pass constitutional muster?

    Those who rely on the courts to save us from this vast expansion of federal gun laws by declaring the law unconstitutional are playing a very dangerous game. Federal courts have not generally been friends of the Second Amendment.

    Furthermore, many analysts, including the REPUBLICAN leadership on the House Judiciary Committee, are predicting that the superficial changes made in the new act cure the constitutional defects that allowed the 1990 safe schools bill to be overturned by the courts in the Lopez decision.

    Specifically, the new law requires that the gun "affects interstate and foreign commerce." This "affects commerce" language is so broad that, in one case, a farmer was held to have "affected commerce" by growing and wholly consuming his own crops, on the basis that commerce would be altered if every farmer did the same. Obviously, given this interpretation, there would be no human activity that did not "affect commerce," and the change would have absolutely no impact on the implementation of the unconstitutional 1990 law.

    Does this superficial change alter the constitutionality of the unconstitutional 1990 version? Some members of the Second Amendment community believe it does not. Republicans on the House Judiciary Committee argue just as adamantly that it does.

    The real answer is that no one knows. It is possible that a court will overturn this statute. BUT, if it does not, we will be stuck with one of the most repressive gun bans on the record books.
    Could this law ban gun ownership by home schoolers?

    The law bans guns within 1,000 feet from the "grounds" of a "public, parochial or private school..." "School" means "a school which provides elementary or secondary education, as defined under State law."

    Contrary to the assertions of the House Judiciary Committee, most -- if not all -- states do recognize that home schools provide "elementary or secondary education" for the purpose of exempting those students from the mandatory attendance requirements of state law.

    The act does NOT specifically look to state law with respect to the question of whether a "home school" is a "private school." But there is a substantial danger that courts will make that finding. Webster's Dictionary defines "private" to mean: "2. not open to, intended for, or controlled by the public [a private school]." Obviously, a home school is not open to, intended for, or controlled by the public. Every educated advocate interested in preserving home schools who has reviewed this problem has reached the same conclusion: there is too much of a danger that this act will be interpreted to prohibit the possession of firearms by parents who home school their kids.

    In fact, Republicans on the House Judiciary Committee have privately conceded the dangers for home schools, quietly assuring other House Republicans that they would be willing to entertain a "clarification" protecting home schools. Unfortunately, these "assurances" are too-little, too-late.
    Aren't there adequate exemptions to protect law-abiding gun owners?

    Let's look at these "so-called" exemptions:

    THE BOGUS "HUNTER EXEMPTION:" The so-called "hunter exemption" applies only when the school authorities specifically give permission for a hunter to cross their property -- and then only when the gun is unloaded. Assuming that a hunter on the way to a hunting trip would have to cross fifty school zones, that hunter would have to check with all fifty schools -- or risk being a felon if he did not qualify under another exemption.

    THE "GUN OWNER REGISTRATION EXEMPTION:" The "gun free zones" law exempts CCW (Carry Concealed Weapon) holders who live in a state that requires a background check before the issuing of a permit. (This means that CCW holders that live in states like Alabama are not exempted under this provision because background checks are not mandated by state law.) What this so-called exemption does is force a citizen to register with the authorities as a gun owner before he can carry a loaded self-defense weapon in his or her car.

    While many gun owners have made the choice to register themselves in order to carry concealed, many have decided to keep their names off of any government list. (In fact, the recent abuses in states like Virginia and Pennsylvania -- where newspapers are printing the names of CCW holders -- show how easily this registration information can be abused.) Before this "gun free zones" law, motorists in many states could legally transport a loaded firearm for self-defense, without getting a CCW permit.

    For example, Vermont allows any citizen to carry a concealed firearm without a permit. (Vermont law only prohibits the carrying of a concealed firearm with the purpose of committing a crime.) Thus, citizens in Vermont can carry legally without jumping through any government-ordained "hoops" -- there is no registration, license fees or taxes. But now under the federal gun free zones provision, law-abiding motorists from Vermont and other states will have to beware. Those who could previously transport a loaded firearm will be stripped of their right to carry a self-defense firearm within 1,000 feet of a school (unless they qualify under another exemption).

    THE USELESS "TRANSPORTATION EXEMPTION:" This extremely limited exemption would ONLY allow a motorist to transport an UNLOADED firearm in a LOCKED BOX or a LOCKED GUN RACK, assuming the motorist does not have a CCW permit as explained above. Even an UNLOADED gun kept in a glove compartment for self-protection would subject the bearer to a five-year prison sentence. Furthermore, this is true even if the person transporting the gun is an OFF-DUTY POLICE OFFICER.

    Note: Citizens in states like Virginia and Colorado should beware. While these states allow motorists to carry a firearm in the passenger compartment, an obvious conflict arises now when the motorist comes within 1,000 feet (about 3 blocks) of a school. Many jurisdictions now set up road blocks to give sobriety checks and check for seat belts being worn. Police who conduct these road blocks within a school zone will now have one more "prohibited activity" to inspect for.

    THE "PRIVATE PROPERTY" TRAP: While it is true that a person living within a school zone would not automatically have to relinquish his guns, it would be UNLAWFUL for him TO CARRY HIS GUN TO HIS CAR PARKED ON THE STREET OUTSIDE HIS HOUSE. Furthermore, the private property exemption only applies to "private property not part of school grounds." Home schools might not be exempted since these clearly fall within the definition of a school under U.S. Code (18 U.S.C. 921), which defines a "school" as a place which "provides elementary or secondary education as determined under state law."
    Don't most states have comparable laws?

    No. Many states have laws which, on their face, are much narrower than the federal law and do not create mammoth "gun-free zones." For instance, Indiana and Minnesota prohibit carrying a gun on "school property." States like Arizona, Colorado, New York and Virginia -- to name just a few -- all prohibit guns within "school grounds" or "school buildings" or at "school functions." The fact that the expansive federal law is putting pressure on states to enact equally repressive measures at the state level is a recent development which represents perhaps the most dangerous aspect of the new law. (1)

    Aside from that, while a few states, such as New York and Massachusetts, have specialized in firearms repression, most have been considerably less abusive than BATF in interpreting and enforcing anti-gun statutes, even when those statutes may be overbroad. Even if the only impact of this legislation were its massive expansion of BATF authority, this would be a very bad law.

    Finally, and obviously, anti-gun zealots did not work frantically to pass this piece of legislation merely because they felt it was redundant of state legislation currently on the books.
    Here we go again

    Gun owners should not be confused when they hear leaders in the gun community telling them that anti-gun legislation is not that bad, that such a law will "have little effect." Gun owners have heard this song and dance for almost a century.

    For years, gun leaders have bargained with Congressmen, giving the wink and nod to anti-gun legislation that is "not too bad."

    Consider that in 1934, the executive vice-president of one gun organization testified in Congress that, "You can be just as severe with machine guns and sawed-off shotguns as you desire, and we will go along with you." (2) With this endorsement, Congress subsequently passed the Gun Control Act of 1934.

    In 1963, another executive vice-president of the same gun group told Senator Chris Dodd (D-CT) that, "I do not deny you have a problem with mail-order guns, Senator. We want to do everything we can to help you. We will support any reasonable type of legislation to beat that type of business because it is unconscionable." (3) Five years later, the Gun Control Act of 1968 was enacted.

    At first, each of these laws may have appeared to "have little effect." But at a minimum, the National Firearms Act of 1934 resulted in Randy Weaver losing his wife almost 60 years later, and gave the "justification" for the raid on the Davidians in Texas. The Gun Control Act of 1968 resulted in the elevation of the BATF to its current status -- an agency which required separate legislation in 1986 to curb many of its abuses.

    Indeed, the gun free zones legislation must be repealed. To leave such a slow-ticking time bomb in the federal code only invites the future harassment of gun owners (at best) and future Randy Weaver-type incidents (at worst).

    1. Even many of the states that have "school zone" laws are not as restrictive as the federal law. For instance, while Florida has a law prohibiting firearms within 1,000 feet of a school, it only applies "during school hours" or during the time of a "sanctioned school activity." (The federal law applies 24 hours a day.)
    And while Texas contains language regarding firearms within 300 feet of a school, this zone of "300 feet" only enhances penalties for a crime committed within that area. In other words, one can legally carry a firearm within 300 feet of a school in Texas -- the law only gives an enhanced penalty for committing a crime within that same distance. The federal law, of course, extends much further than the Texas law. The federal law applies a ban on the possession of a gun (not just an enhanced penalty for the commission of a crime as in Texas), and the federal statute extends the gun free zone up to 1,000 feet from a school (not just to 300 feet as under Texas law).
    2. U.S., Congress, House, National Firearms Act, Hearings, on H.R. 9066, 73d Cong., 2d Sess., 1934, p. 30, cited in Lee Kennett and James La Verne Anderson, The Gun in America: The Origins of a National Dilemma, 1975, p. 210.
    3. U.S., Congress, Senate, Dodd Committee, Hearings, 1963, p. 3483, cited in The Gun in America, p. 229.
    “The Constitution is not an instrument for the government to restrain the people, it is an instrument for the people to restrain the government.”

    Patrick Henry
    Quote Originally Posted by UnklFungus
    If it is ok to disarm legal citizens to reduce crime, then doesn't it stand to disband the military to prevent war?

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    Member Array tradermike69's Avatar
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    Carrying an "unloaded" 357,, might as well been carrying a hammer,, Oh I guess he would have been alright carrying that,, But show support where you can, But know the laws I guess would be the moral of this story!!

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    So, is he being charged in CA, or in Federal system?

    Quote Originally Posted by PastorPack View Post
    +1 on the common sense needed.

    CA law is pretty clear on all this. Open Carry is legal as long as the gun is unloaded.

    However, Federal 1000' rule applies, UNLESS you have a CCW and carry concealed.
    So, if he broke no CA law, why was he bothered? Is he being charged in the Federal system for breaking the Federal law? Anyone know? In that case he is in bigger dooo than initially thought.

    It seems odd to me that the locals would be bothering with enforcing the Federal law unless a CA law also was broken. So, what's actually going on here?

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    Hop, IIRC states can institute the same law and then enforce it. NC started to but never got the language or signage right. So, yes there is a federal law. But does not seem to be a state law. NC does prohibit carry on school grounds. Not sure how that would be enforced here. In effect it seems that it is not enforced. I am assuming that CA has a state law mirroring the fed law. Anyone know for sure?

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