Saturday, December 19, 2009

San Jose Man Arrested for Unload Open Carry

As reported in the San Jose Mercury News, Sherman Fontano was arrested to carrying an unloaded .357 Magnum revolver.

Fontano, who seems to think that this is all a big misunderstanding, is about to get a lesson in the arcane, convoluted, and sometimes nonsensical gun laws in California. His plight should serve as an object lesson to all people who own or are contemplating purchasing a gun in California: know and follow the gun laws in this state, or you will be sorry.

California gun laws are complex, containing provisions surprising even to long-time gun owners. Many gun owners do not study the laws regulating guns, relying on the advice of friends or relatives, which is often outdated or incorrect. I am not a lawyer, and nothing I write in the post should be considered legal advice, but one can read about California gun laws in the excellent book "How to Own a Gun & Stay Out of Jail - California Edition", by John Machtinger, who is a lawyer. California gun owners, in my opinion, should read and understand everything in this book. My statements below about the substance of California gun laws are based on Machtinger's book.

But nobody should take my word for ANYTHING! Read the book, or better yet, read the Penal Code sections for yourself.

If Fontano had read this book, he would have understood that everything that a gun owner can legally do with a gun, even possess it inside their own home, is a listed exception to the law that states that possession of a concealed firearm is a crime, and to the law that states that possession of a loaded firearm is a crime.

Fontano's gun was not loaded at the time he was arrested, so he did not break that law. But he was in possession of a concealed firearm (i.e. firearm in a waistband is considered concealed). California law defines a concealed weapon to be a weapon carried on one's person or in one's vehicle with any part of the firearm concealed from view. Belt holsters are explicitly exempted from this provision, but other garments are not exempted, including the part of Fontano's pants that covered a portion of his .357 Magnum.

The exception that allows Californians to carry their legally owned firearms outside of their homes states that the firearm must be unloaded, and secured inside a locked container. Firearms transported in this way, either in a car, or by a person on foot, or on any other private conveyance, is not a concealed weapon.

So, why did Fontano think he could carry his pistol legally? Fontano had heard of unloaded open carry from relatives:
After his brothers watched a newscast about the national movement to carry guns in public, they told Sherman "Tony" Fontano he could do that himself. Two San Jose police officers also said it would be OK.
The "national movement" referred to above is the practice of law abiding citizens carrying firearms openly to exercise their Second Amendment rights, and to demonstrate to the non-gunowning public that people with guns are not automatically criminals. The web site explains what this movement intends to accomplish and how members go about their open carry activities.

Fontano's problem was that his information was incomplete. As explained extensively on the web site, it is up to the individual to know and follow the gun laws of the state in which they openly carry weapons. In California, one needs to be especially careful because of all the exceptions that may apply to where a person may possess or carry a weapon. While unloaded open carry (UOC) is legal in many places in California, carrying a firearm into a school zone is not, and Fontano was arrested by police while carrying his gun in a school zone.

School zones comprise the school grounds and encompass the surrounding neighborhood up to 1000 feet from school property. Second, school zones apply to most any school: K-12, public and private, and college campuses. It is up to the person carrying to know the school zone boundaries, and either avoid them, or secure their firearms prior to entry. Fontano, in his ignorance, failed to do so, and was thus arrested.
Fontano can't believe the fuss his morning walk with his never-been-fired Magnum has caused.
I can. Gun owners, at 21%, are a minority in this state. Many people think that anyone who owns a gun is a potential threat to other citizens, and anyone carrying a gun in public, who is not a police officer, must be a criminal. These views are a large part of the reason California gun laws are so complex that even District Attorneys and police officers are often confused by them, and why the gun laws are becoming more, not less, restrictive, as illustrated by the signing of AB 962 into law this year.

Fontano, with his "never-been-fired Magnum" is obviously not a dangerous person, but he is a careless one. While charges have not yet been filed, he may fined himself subject to jail time, be prevented from owning firearms for ten years, or perhaps even for life. His education on the extent of the gun laws in California may well prove to be expensive.


Mike Stollenwerk said...

It is legal to open carry loaded handguns in california in unincorporated areas where the County has no banned shooting - that's probably most of California. See People v. Knight at

LeftCoastConservative said...


I am well aware that loaded open carry in unincorporated areas is legal. But my post is about how ignorance of the law got Mr. Fortano in trouble. Mr Fortano carried in an incorporated area, in a school zone, after listening to worthless advice.

California gun laws are complex and unforgiving because most people in this state don't like guns, and many people would like to see them made illegal. Gun owners need to be knowledgeable and to follow the laws or they run the risk of running afoul of them, as did Mr. Fortano.

Anonymous said...

I am a California resident, and think this is a well written article. I agree with the point trying to be conveyed. Understand the laws in your area, and do not assume that third party advice is just as valid.

Eugene Jospeh said...

open carrying in california is legal

LeftCoastConservative said...


Did you read my post, or any of the articles I linked to? the man was arrested for possession of a firearm in a GFSZ, not for UOC.

I am well aware of the laws in this state, and that UOC is legal, for now. My post emphasizes that if one does UOC, one must be aware of all the complicated gun laws in this state.