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Calguns files a lawsuit against California DOJ.

The California Calguns Foundation has filed a federal lawsuit against the state’s Department of Justice as well as Attorney General Kamala Harris for implementing a policy forcing gun owners to wait 10 days before they can take possession of additional firearms.

The case is entitled Jeff Silvester et. al. vs. Kamala Harris, et. al and was filed in the District of California Federal District Court in Fresno.

The Calguns Foundation signed on to the lawsuit with the Second Amendment Foundation and three individual plaintiffs.

“The State has absolutely no reason to infringe the rights of California gun owners who already possess firearms when they buy another one,” said Jason Davis who is the attorney for the plaintiffs. “California currently requires the registration of handguns in California. And, beginning January 2014, it will also require the registration of all newly-purchased rifles and shotguns. Notably, California keeps a current database of all residents who are prohibited by state or federal law from owning or possessing firearms.”

The plaintiffs, Jeff Silvester, Michael Poeschl, and Brandon Combs have firearms registered with the State of California. Combs and Silvester also have firearms licenses issued by the state that constitute continuous background checks. The plaintiffs argue that their law abiding background coupled with extensive background checks should remove them from the “cooling off” period.

“In just about every other state in the U.S., I as a law-abiding gun owner, could walk in and after passing an instant national background check, walk out with a firearm to defend myself in my home,” said Poeschl. “What’s really frustrating is that California is one of the few states that force gun owners to register all handguns that they buy. If the state’s database saying that I already lawfully own a gun isn’t proof that I don’t need a ‘cooling-off’ period, then what is?”

Currently, if Californians want to legally conceal carry a firearm they have to pass more stringent background checks. In most counties, residents have to provide detailed reasons in order to carry a weapon. Acceptable reasons include carrying large amounts of cash to banks or other businesses, bodily threats, or a member of the court system.

“I have a license to carry a loaded firearm across the state,” Silvester said. “It is ridiculous that I have to wait another 10 days to pick up a new firearm when I’m standing there in the gun store lawfully carrying one the whole time.”

The “cooling off” period also affects gun collectors.

“As a collector, I submitted to a Live Scan background check and obtained a Certificate of Eligibility to Possess Firearms from the State of California at my own expense,” said Brandon Combs. “In the Internet era, where every California gun dealer has a computer connected directly to the State’s databases, there is no logical reason to force me to wait 10 days and make another trip simply because California doesn’t want to acknowledge the Certificate that it issued to me. I have registered guns, and I have the State telling me that I can possess guns, but for some reason I can’t exercise my constitutionally protected rights for another ten days? That’s insane.”

Currently California enforces some of the nation’s toughest gun laws and has banned numerous weapons that can be purchased legally in other states.

“This lawsuit seeks to prevent the infringement of gun owners’ rights and requests the 10 day ban on possessing firearms purchased not be applied to current gun owners who pass instant background checks,” Davis concluded.

A copy of the complaint and case filings can be downloaded at

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© Copyright 2011 Kimberly Dvorak All Rights Reserved.

Police Department contest to seize guns results in lawsuit after arrest

The Southern California city of San Fernando and its Police Department will pay $44,000 for negligence because an officer did not know the rules and regulations for individuals or law enforcement officers to lawfully carrying a firearm.

The City of San Fernando agreed to pay approximately $44,000 to San Fernando former Coast Guard Reserve maritime law enforcement Officer Jose Diaz. The city must also implement new policies and procedures for the improper arrest and seizure of Coast Guard Reserve Diaz, according to the San Fernando Police Department. The police department also agreed to a “Finding of Factual Innocence.”

Diaz contends that a police department contest was a driving factor in this case.

“The San Fernando Police Department give’s out awards to officer’s that ‘achieve benchmarks in firearm confiscations,(YouTube video)” said Jason Davis an attorney for Calguns. “But this contest encourages the illegal confiscation of lawfully possessed firearms by officers who do not understand the laws themselves.”

While the settlement may seem small, Calguns, a state and national gun rights advocacy group, says the lawsuit was sought to ensure San Fernando properly trains its officers to deal with law-abiding gun owners.

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, according to a statement released by Davis.

“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,” says Davis. “The case contained two loaded magazines and a Glock with no magazine in the well of the firearm and no cartridge in the chamber.”

The plaintiffs claimed the cable lock that entangled around the gun was a “lock container” however Officer Mack disagreed. The police officer also took issue with the fact that 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.

”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.”

Unbeknownst to Coast Guard Reserve Diaz, Police Officer Mack falsely subscribed to the fact 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. The police officer hauled Diaz to jail where he was booked and spent one day and night in jail.

The unlawful arrest and gun charges were later dismissed.

Diaz’s subsequent civil lawsuit for battery, false arrest, and federal civil rights violations languished until Calguns got involved.

“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 his Calguns attorney Davis who orchestrated a settlement with the San Fernando Police Department. The terms of the settlement include educational policies on assault weapons; carry permits, open carry and LEOSA rules.

“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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© Copyright 2011 Kimberly Dvorak All Rights Reserved.

Continue reading on Police Department contest to seize guns results in lawsuit after arrest – San Diego County Political Buzz |

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