Paint it Gray: The Ambiguous Legal Territory of Jaywalking and Paintball Guns

You're not going to believe this, but "Magic Carpet Bob" D'Elia has an interesting tale behind his nickname. Of course it's interesting: It involves his brief reign atop the world of professional paintball.

You mean there's professional paintball? "Well, in 1991 I was the world champion and won $170,000," says D'Elia. He lets that sink in. "So, that's kinda professional."

He now runs Paintball Jungle, a 30-acre eucalyptus grove in American Canyon, 35 miles northeast of the city, complete with "elaborate forts and bunkers" for anyone who wishes to re-create the paintball version of Dien Bien Phu. Before that, however, he was a carpet cleaner. There aren't a hell of a lot of pro paintballers, but, even among their elite ranks, there are plenty of guys named Bob. So, he became "Carpet Bob." Then, when he began winning everything, he became "Magic Carpet Bob." And there you go.

Of course, if D'Elia was caught attempting to ply his trade in San Francisco, they'd have a new nickname for him: Criminal Bob.

When a quartet of young men were this month accused of a busy weekend of drive-by paintball attacks, they were hit with a bevy of felony charges. But they were also initially charged by police with misdemeanor paintball possession, under a Truman administration-era city code outlawing the sale or possession of "sling shots" or "toys projecting missiles by air or gas" in San Francisco.

Your humble narrator subsequently wrote that these paintball possession charges would surely be dropped by the District Attorney — and they were. But we're hardly psychics, visionaries, or even all that astute. We just read our own newspaper; SF Weekly has been writing since 2009 that the city's archaic statute is clearly preempted by state law, a point on which the public defender and DA readily agree. Defense attorneys have been getting those charges tossed for decades, yet police are still confiscating air rifles and paintball guns, and charging their owners with misdemeanors.

Legal petitions are rarely laugh-out-loud funny, but the public defender's office managed that feat in a 1987 document arguing its client did no wrong in possessing a Marksman pellet gun. Attempting to apply the city's paintball- and BB-gun ban under the state law clearly preempting it would require "the ridiculous interpretation that the Legislature intended to allow a city to prohibit its adults from possessing air guns, but permit its children to own them with their parents' permission." That's a hilarious line; no wonder the public defender repeated it verbatim in a 2004 filing, one of several sent our way by the office. Less entertaining is that these charges are still coming up all these years later, and wasting everyone's time.

The gears in the wheels of justice do not always mesh cleanly in San Francisco. This is a city with no shortage of laws on its books in a state with no shortage of laws on its books. The first thing any local attorney defending someone accused of violating one of the city's myriad municipal codes should do is check to see if it's preempted by a state law — now more than ever. "When I started as a lawyer in 1982, the book of state codes was like an inch or two thick," says Chris Gauger, the head of the San Francisco public defender's research unit. "Now it's like six inches. They regulate everything statewide." And you can't regulate something at the citywide level if it duplicates, contradicts, or ventures into realms reserved to the state (think firearms — or even imitation firearms).

That's something to think about the next time you step off the curb. Because you may or may not be jaywalking.

Jaywalking in San Francisco is outlined in both the city's Transportation Codes and Traffic Codes. But the former supersedes the latter. Of course, both are superseded by the state's Vehicle Codes. And then things get complicated.

In a bit of charming, old-timey legal language, the state declares that "between adjacent intersections controlled by traffic control signal devices or by police officers, pedestrians shall not cross the roadway at any place except in a crosswalk" (emphasis ours). Stop signs aren't "traffic control signal devices," meaning you can amble into the street with abandon on such thoroughfares. But not so fast.

The state allows cities to insist that pedestrians use crosswalks, whether or not there are "traffic control signal devices," in specifically designated business areas. In San Francisco, this is the "Downtown core" — a swath of the city straddling Market Street defined deep within a 2008 Municipal Transportation Association resolution. Weeks of requesting multiple city departments for a map of this area came up empty.

But that's the state of this state. "In California, counties are encouraged to do as they see fit," says Mort Cohen, a law professor at Golden Gate University. Even when state laws are written expressly to preempt and unify those laws in the 58 counties, he notes, "you have to go county by county" for a "cleanup process" to bring state and local laws into alignment. This can involve litigation — also on a county-by-county basis.

So, knowing where you can cross the street and where you can't in this city "requires legal advice or getting trained by a lawyer," bemoans San Francisco civil rights attorney Ben Rosenfeld. "And even then it's gray."

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