Michael Zeleny

Mass Means, Inc. 7576 Willow Glen Road Los Angeles, CA 90046

323-363-1860 (voice) 323-410-2373 (fax)

23 July 2013 Stephen M. Wagstaffe District Attorney Deshawn Madha Deputy District Attorney 400 County Center Redwood City, CA 94063 650-363-4677

Gentlemen,

In People v. Michael Zeleny, San Mateo County Superior Court Case No. SM382036, you accuse me of having violated California Penal Code § 25400 (a) (2): “A person is guilty of carrying a concealed firearm when the person does any of the following: [...] Carries concealed upon the person any pistol, revolver, or other firearm capable of being concealed upon the person.” I am writing to ask that you drop these charges forthwith, for reasons laid out below.

I understand that you have filed your criminal complaint on two theories. The first one is that the holster that I used was not a “belt holster” within the meaning of an allowable exception to the limitations on public carry as defined in P.C. 25400 (a) (2). If you intend to argue that it was a “shoulder holster” as described in the police reports, and therefore not covered by the exception, please review the attached expert declaration by Sgt Barhin K. Bhatt, attesting to the contrary. Your other theory appears to be that my handgun was concealed because it was completely covered by the holster. But then you would also have to concede that my handgun was locked within the holster, as per the police report upon which your complaint relies. This concession would put you in the untenable position of defining my holster as a locked gun case, and thus not in violation of any law.

I hasten to preempt your further erroneous charges for openly carrying an unloaded handgun under the recently enacted P.C. § 26350, by pointing out that according to P.C. § 26389, it “does not apply to, or affect, the carrying of an unloaded handgun if the handgun is carried either in the locked trunk of a motor vehicle or in a locked container.” Whereas P.C. § 16850 defines the term “locked container”, as used inter alia in P.C. § 26350, as “a secure container which is fully enclosed and locked by a padlock, key lock; combination lock, or similar locking device.”

Please note further that as public officials, you enjoy qualified immunity from damages suits if you violate my rights, but only as long as you refrain from violating “clearly established” law. “If the law was clearly established, the immunity defense ordinarily should fail, since a reasonably competent public official should know the law governing his conduct.” Harlow v. Fitzgerald, 457

U.S. 800, 818-819 (1982). Of additional interest to you is the recent U.S. Supreme Court ruling in Lefemine v. Wideman, 568 U. S. __ (2012), which held that a plaintiff who secured a permanent injunction but no monetary damages was a “prevailing party” under 42 U.S.C. Sec. 1988 and could receive attorney fees, where the injunction ordered the defendant officials to change their behavior in a way that directly benefited the plaintiff, who could thereafter engage in demonstrations without fear of sanctions with which police had previously threatened him. Please consider this clearly established law in reference to the matter at hand. I am hoping that you will attest your personal integrity and professional competence by dismissing your charges against me forthwith.

Cordially,

_______________________________  

Michael Zeleny