Editor’s Note: In PoliceOne “First Person” essays, our Members and Columnists candidly share their own unique view of the world. This is a platform from which individual officers can share their own personal insights on issues confronting cops today, as well as opinions, observations, and advice on living life behind the thin blue line. This week’s essay comes from PoliceOne Member Ken Hardesty, an officer and trainer with the San Jose (Calif.) Police Department. Here, Ken writes about the officer safety implications of California residents exercising their 2nd Amendment right to carry a holstered, unloaded firearm in an exposed fashion. Do you want to share your own perspective with other P1 Members? Send us an e-mail with your story.
By Ken Hardesty
San Jose (Calif.) Police Department
Due in large part to the political climate and challenges that face police officers in this state, California has long been the pioneer in nationwide law enforcement training and tactics. The latest political hot button to arrive on the California landscape is the issue of Open Carry.
Open Carry refers to California residents exercising their 2nd Amendment right to carry a holstered, unloaded firearm in an exposed fashion. As most readers are aware, it can be incredibly difficult in most California counties to obtain a permit to carry a concealed weapon. Hence, the arrival of Open Carry advocates. Most citizens who avail themselves of Open Carry rights also carry loaded magazines, thereby enabling themselves to quickly and efficiently put the weapon in service should the need arise. When the issue first gained prominence in California, many law enforcement agencies and trainers thought little of it — the fact was, this was not the segment of armed society that caused us anxiety.
We were more concerned with young gang members out to make a name for themselves, or career criminals not interested in a park hopper pass to California’s penal system. While there are segments of Open Carry advocates who simply wish to exercise their Constitutional rights, there is a growing portion that will openly challenge local law enforcement, and attempt to use first responders as pawns to further their political agenda. These are the individuals who should rouse the officer safety antenna of every first responder who comes in contact with them.
“I do not consent to a search of my person or property, but I will not use violence to overcome your violence.”
“Are you aware of the rights extended to me by the second and fourth amendments?”
These and other phrases are commonly used by those Open Carry activists who do not believe they are required to comply with California Penal Code section 12031(e). This section authorizes police officers to inspect a firearm in plain view to determine that it is in fact unloaded. Many Open Carry advocates refer to it as an, “e” check, derived from the Penal Code subsection. Advocates commonly have a full understanding of the penal code and what police officers can and cannot do. And most, when handled properly, will not interfere with an officer’s right to inspect the firearm. Refusal to submit the weapon for inspection constitutes probable cause to arrest. The problem is a gap in training for first responders, and the rhetoric used by many advocates to intimidate or dissuade officers from taking appropriate action.
There are several issues at hand:
• A lack in definitive case law to provide standardized direction across the state
• Varying opinions rendered by local district attorneys regarding enforcement
• Agency training being limited to a training bulletin or memorandum
Currently, there are two solutions on the horizon. The California legislature is pushing legislation to ban the open carry of unloaded firearms in the state of California. Secondly, there are at least three cases working through the California court process. To date, no decision has been rendered. Once issued, definitive case law on the context of the contact will improve the ability of local law enforcement to effectively enforce the penal code. Ever increasing administrative restrictions, coupled with the litigious nature of our society unfortunately forces some officers to over contemplate decision making, thereby sacrificing their individual safety.
On the topic of safety, we as trainers should not dictate specific “one-size-fits-all” tactics for our officers to employ when contacting Open Carry advocates. I have heard several responses by officers including, “Just contact them, check the firearm and move on”, at one end and, “I’m proning the guy out because I have no idea what his intentions are,” at the other end of the spectrum. When asked which tactic is correct, my response is always, “yes.” The point I strive to drive home is, officers should respond to the situation at hand based upon their individual perception and comfort level. It becomes dangerous when trainers attempt to apply a template or overlay for every situation that officers may encounter.
For those who have the privilege of supervising or training our personnel, it is a duty to adequately prepare and train officers to act accordingly. According to department policy, according to legal precedent, but most importantly, according to the safety doctrine of the individual contact. The motto of our Training Unit is, “So Others May Succeed.” Allow our officers to succeed, train them to win.
About the Author
Ken Hardesty is a San Jose Police Officer with 14 years experience. His assignments include, Patrol, FTO, Specialist Officer, Patrol Rifle Operator, Recruit Training Officer, Basic Academy Coordinator and In-Service Training Instructor. He is California POST certified to teach Firearms, Chemical Agents, Active Shooter Response, Law Enforcement Response to Terrorism and Less Lethal Devices. He can be reached at hardesty3541@yahoo.com.
