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San Diego military vets challenge California’s weapon ban on batons

Plaintiffs in a San Diego lawsuit want to legally own police-style batons such as the one shown here.

GINA FERAZZI, LOS ANGELES TIMES/TNS

By KRISTINA DAVIS | The San Diego Union-Tribune | Published: September 9, 2019

SAN DIEGO (Tribune News Service) — A recent wave of court decisions around the country have recognized the constitutional right of citizens to possess arms such as daggers, nunchucks and Tasers for self-defense, and now a pair of San Diego military veterans are challenging California’s ban on another weapon: the baton.

Striking weapons such as billy clubs, blackjacks, leaded canes and saps — described in a 1923 San Diego Union story as “weapons of the holdup man or thug” — have been outlawed in some form or other in the state since at least 1917.

“The Legislature obviously sought to condemn weapons common to the criminal’s arsenal,” a California appellate court wrote about the ban of such weapons in a 1965 ruling.

The law’s only exception extends to peace officers and certain licensed security guards who obtain a state baton permit.

The current law, retooled in 2012, makes possession, importation, sale and manufacture of such weapons a “wobbler,” meaning prosecutors can charge it either as a misdemeanor or felony.

While the law doesn’t explicitly define a billy, courts have determined it to be any kind of stick, bat or baton that is intended to be used as a weapon — even the common baseball bat or table leg would qualify if it is meant to hurt someone else.
A lawsuit filed in San Diego federal court last week argues the ban violates the Second Amendment.

Russell Fouts, an honorably discharged Marine who works as a project manager for a security contractor in San Diego, argues in the lawsuit that the ban prevents him from legally buying and possessing a police-style side-handle baton and expandable baton “to protect himself, his home, his family and business.”

Fouts was licensed in Oregon to carry a baton in his role as a private security contractor. Additionally, a 1980 Oregon Supreme Court decision found possession of a billy club in the home is constitutional, describing the weapon as “the first personal weapon fashioned by humans.”

His co-plaintiff is Tan Miguel Tolentino, an honorably discharged airman who carried a baton as a law enforcement specialist in the U.S. Air Force. Tolentino now works as an information technology specialist.

Second Amendment attorney Alan Beck, who filed the lawsuit with Mississippi-based co-counsel Stephen Stamboulieh, said the time was ripe for such a challenge.

Beck has been part of a recent effort that has secured court victories in multiple states allowing possession of stun gun-type weapons, including cases in Michigan, Maryland, New Orleans, New Jersey and New York.

An attorney friend of his in 2018 successfully challenged New York’s ban on nunchucks, with the federal district court finding the martial arts weaponry are “bearable arms that are typically used for law enforcement purposes” and therefore protected under the Second Amendment.

The baton was addressed in a 2014 Connecticut Supreme Court ruling that found that a complete ban on batons was unconstitutional.

“This is not just like a shot in the dark,” Beck said about the latest lawsuit. “There have been other cases that have built up to this challenge.”

The state attorney general’s office, which is named in the lawsuit, did not return a request for comment Friday.

If the state’s baton ban is ultimately overturned, possession may still be subject to some kind of limits.

In District of Columbia v. Heller — the U.S. Supreme Court’s 2007 landmark ruling that upheld an individual’s right to bear arms — the justices also retained the government’s ability to regulate weapons in certain circumstances, including limiting weapons in sensitive public spaces.

Staff researcher Merrie Monteagudo contributed to this report.

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