Got Guns: Open Carry of Firearms in Texas Course Objectives 1. Recognize the Emotion surrounding open carry (guns) 2. Firearm carry in Texas current law 3. Municipal prosecution involving firearms 4. Pending legislation Firearm Emotion 1. Passionate and polarizing 2. Love/ hate 3. Glamorized/ Demonized 4. Guns are a part of political/social/ cultural history 1
Derek Poe stopped by GameStop in Parkdale Mall before going to the store he owns in the mall, Golden Triangle Tactical. While at GameStop, he was stopped by police officers and the AR 15 that was slung around his back was seized. Poe says he was just exercising his right to open carry a long rifle. Police charged him with disorderly conduct by display of a firearm In a manner calculated to alarm. Poe disagrees saying his rifle was facing barrel down on his back and his hands weren t even on the gun. It was clearly obvious I didn t have criminal intent. I had a drink in one hand and a bag in the other. I didn t commit a crime. I legally carried a long arm in Texas, Poe said. Detectives say witnesses gave statements that they were terrified and thought they were going to die. FOOTNOTE Loaded Guns are a lot like lawyer s mouth. A slight depression on the trigger will cause either to shoot. Video or Scholarly text that illustrates the close connection between legal concepts and the use of Firearms FOOTNOTE The right to bear arms is fundamental and includes Actually bearing Holding onto the Firearm 2
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Homicides. 2013 CDC statistics Homicides (by all means) 16,121. (5.1 per 100,000 population) Homicides ( by firearms ) 11,208 (3.5 per 100,000 population) Still not in the top 15 of things that kill us 4
Firearms: Myths, Legends, Media The Gun that won the West: Winchester Guns don t kill people, people kill people Abe Lincoln may have freed all men, but Sam Colt made them equal Remington Firearms since 1816: Also typewriters, razors, computers: Dragnet, Adam 12, Chips, T.J. Hooker, Miami Vice, Cagney and lacy, Hill Street Blues, NYPD Blue, Blue Bloods, Hawaii 50, CSI, NCIS Jessie James, Wyatt Earp, Davy Crockett, Billy the Kid, Bonnie and Clyde, Al Capone Have Gun Will Travel, Wanted: Dead or Alive, Gun Smoke, Roy Rogers, Gene Autry, Bonanza, The Virginian, Lonesome Dove..all things John Wayne Old West: Don t Take Your Guns to Town Old West: Don t Take Your Guns to Town 5
Old West: The Beginning of municipal prosecution OpenCarry.org As people on both sides of the debate regarding open carry the practice of carrying firearms in plain view have been turning up the heat, more companies are being forced to take a side. Gun rights advocates see the practice as a way to normalize gun ownership and deter crime, while gun control activists believe carrying guns in stores and restaurants is disruptive to the public and encourages violence. Recently, Target, Starbucks and Chipotle have asked their patrons not to bring their guns. After petitions by gun control groups such as Moms Demand Action for Gun Saturday Night live.. 1 st Show 1975 6
Current Texas Firearm law Tx. P.C. 30.05 Trespass Enter onto the property of another w/o effective consent Notice that entry forbidden (sign, writing, oral ) Notice to depart. 30.05 (f) defense to prosecution : No handgun is the prohibition on entry, and Possesses a handgun license, and Handgun is concealed or in a holster Tx P.C. 30.06 Trespass by Licensed Holder with a Concealed handgun A Licensed Holder commits an offense by carrying a concealed handgun on the property of another, w/o effective consent. Consent is not effective if notice is posted (specific sign) Class C Misdemeanor 30.06(e) exception to prosecution The property was leased or owned by a governmental entity and not a location otherwise prohibited by P.C. 46.03 or P.C. 46.035 7
Tx. P. C. 30.07 Trespass by Licensed Holder Open Carry of Handgun offense: open carry w/o effective consent notice by sign, oral, writing Class C Misdemeanor or Class Aif refused to leave 30.07(e) exception: if property is owner or leased by governmental entity and not a location otherwise prohibited by P.C. 46.03 or P.C. 46.035 30.07(f) no defense that handgun in a holster 411.209 Govt Code Wrongful Exclusion of Concealed Handgun License Holder A govt. entity may not provide by 30.06 sign, reference to 30.06, or any language referencing Concealed handgun license, that a license holder is prohibited from entry onto property owned or leased by the govt. entity Civil penalty 1 st violation $1000 $1500 2 nd violation $10,000 to $10,500 Reports to Ag investigation notice by AG 15 days to remedy Campus Carry: 411.2031 Govt Code A Licensed Holder may carry a concealed handgun on all land and buildings owned or leased of an institution of Higher learning, a private or independent institution of higher learning (Tx Ed Code 61.003). Effective August 1, 2016 Jr. College August 1, 2017 Administration must institute rules, after consulting students, faculty for carry but can t exclude totally. Scheduled review by Board of Regents 1. rules to regulate storage in residential facilities 2. PC 46.035 still applies 411.208 Govt code: Immunity for failure to act or for damages 8
Guns are prohibited where? Penal Code Section 46.03 School grounds Polling places including early voting Court including offices Racetrack premises Controlled area of an airport Within 1000 feet of a state execution on the day of the execution But, I have a Texas CHL. CHL holder cannot carry a handgun Openly On premises licensed to sell alcohol if 51% of business revenue generated by sales of alcohol (must be noticed in writing) If intoxicated Footnote Guns and Alcohol Finding of Fact: A loaded gun is dangerous when the owner is primed with Whiskey 9
But, I have a Texas CHL. CHL holder cannot carry a handgun Openly On premises licensed to sell alcohol if 51% of sales comes from alcohol (must be noticed in writing) If intoxicated At sporting event (unless the handgun is used for the event) At a correctional facility At work, if the boss says no (lock it in the car) If notice received pursuant to Penal Code sec 30.06 On premises of nursing home or hospital (administration and approve in writing) Amusement Park Established place of religious worship Governmental Meeting Required Language for 30.06 Notice to CHL Texas Penal Code sec 30.06 (c) (3) Exact Language is mandatory English and Spanish Contrasting colors 1 high letters Posted in a conspicuous place What about rifles and shotguns Article 1 Sec 23 of the Texas Constitution Every Citizen shall have the right to keep and bear arms in the lawful defense of himself or the State; but the Legislature shall have power, by law, to regulate the wearing of arms, with a view to prevent crime. 10
Legislature.regulate the wearing of Arms What does that mean? Wearing guns (carrying) is a state legislative function (preemption of municipal regulation) Rifles, Shotguns, and handguns are restricted by the legislature in penal code 46.01 (a) Handgun wearing is restricted by the legislature, carrying rifles and shotguns isn t. The remaining body of State law does not impose restrictions on open carry of a rifle or shotgun in a public place. Translation: Texas is open carry for rifle and shotguns Footnote Handguns What you are wearing when you are wearing is important ALSO, When shooting don t stick out your tongue Footnote Handguns 1. CHL concealed carry handguns 2. Without CHL concealed in a boat or car. [PC sec 46.02(a)] Open carry of Handguns in Texas is currently prohibited. Concealed carry of handguns is permitted but has limitations If you open carry and.. engaged in crime. (other than Class C) not on your premises or premises under your control not inside or directly in route to a motor vehicle or boat that you own or control Class A misdemeanor 11
Municipal Regulations and Prosecution tonight we re having leftovers What is the current status of municipal regulation and prosecution Case Law Constitutional Limitations Preemption and prohibitions from state law Class C theories of prosecution Possibilities or Pot holes FOOTNOTE In Law as in Shooting Speed is important, but So is accuracy 2 nd Amendment is not unlimited, but.. Heller 554 U.S. 570 (2008) the Second Amendment is an individual right intimately tied to the natural right of self defense. the "people" to whom the Second Amendment right is accorded are the same "people" who enjoy First and Fourth Amendment protection: a total ban on operative handguns in the home is unconstitutional 12
2 nd Amendment applies to States thru 14 th McDonald v. Chicago, 561 U.S. 742 (2010) Post Heller cases, several 2 nd Amendment cases argued that the 2 nd Amendment, should be applied against state and local governments, through the 14 th amendment, claiming that bearing arms was fundamentally implicit in the concept of ordered liberty or deeply rooted in our nation s history and traditions. see Duncan v. Louisiana, 391 U.S. 145 (1968). McDonald Holding: The 2 nd Amendment right recognized in Heller is applicable to the states through the due process clause The central component of the 2 nd Amendment right to arms bear arms for self defense is a basic right, recognized by many legal systems from ancient times right Not an unrestricted right to carry a gun Texas limits places where firearms can be carried Also some people Convicted felons person convicted of family violence mentally ill persons probationers and parolees members of Criminal gangs (see Foot Note following) Certain guns Machine Guns, short barrel rifles and shotguns FOOTNOTE Burden is on the State to Prove Criminal Gang activity Video evidence presented herein is insufficient 13
Statutory preemption Texas Local Government code Sec 229.001(a) transfer private ownership, keeping, transporting, licensing, or registration of firearms, air guns, ammunition including supplies Sec 229.001 (e)(1) and (e)(2) discharge of a firearm or air gun at a sport shooting range Statutory Prohibition Texas Local Government Code Express prohibition on Municipal authority to regulate discharges of firearm LGC Sec 229.002 City may not regulate the discharge of a firearm or other weapons in the ETJ or in areas annexed after 1981 prohibition applies to 1. Shotguns, air rifle or pistol, BB gun, bow and arrow on 10 acres and at least 150 from a residence or occupied bldg. 2. Rifles and pistols on 50 acre tracts and more than 300 from a residence or occupied bldg Same year as Agriculture Protection Act: A City can t apple nuisance laws to agriculture operations if it would negatively affect the operations Municipal regulation at OK Corral A Case of Federal Preemption What type of City General Law Statutory City 14
Local Government Code 229 City authorization to regulate firearms Discharge of Firearms in City Limits (except sport shooting ranges annexed or in ETJ after 1981) Zoning restrictions if not circumventing preemption in transfer, ownership, transportation Use of firearms and Air guns in insurrection, riot, disaster (public health and safety) Carrying a firearm (except to or from lawful hunting or sporting event by non CHL holder at a: Public Park Public Meeting of Municipality, county or other governmental body ( for CHL holders notice 30.06) Political Rally, parade, official political meeting Non firearm related schools or college event, professional athletic event Hours of operation of a sport shooting range (must compare to other non alcohol business regulations) Carrying an air gun by a minor on public property or private property w/o consent of owner. If a City regulates in violation of state law.. The State Attorney General is authorized to bring an action in the name of the State for injunctive relief 2013 LGC 229.001(f) Firearm violations / city prosecution possibilities or potholes. Local Govt Code 229.001(b)(6)(B)..restrict firearms from municipal and government body meetings City regulation by ordinance Class C CHL holder trespass notice posted under 30.06 City council authorize the venues covered Class A Trespass at a City Building notice posted under 30.05 City Council authorizes notice at buildings selected Class A Note: a 30.05 notice is ineffective as to a CHL holder. 15
Firearm violations / city prosecution possibilities or.potholes Disorderly Conduct 1. Obstruction common entrances/ exists or disobeys reasonable request 42.03 Class B 2. Unreasonable noise (public or private if D doesn t occupy) 42.01a5 Class C Free Speech limitations for 1 and 2 sec 42.04 (prerequisites and defense) 3. Riot seven or more 42.02 Class B (a) creates an immediate danger of damage to property or injury to persons; (b) substantially obstructs law enforcement or other governmental functions or services; or (c) by force, threat of force, or physical action deprives any person of a legal right or disturbs any person in the enjoyment of a legal right Defense lawful assembly and actor abandoned when first manifest intent to violate Firearm violations / city prosecution possibilities or.potholes Disorderly Conduct continued 4. Displays a firearm in a public place in a manner calculated to alarm 42.01a8 Class B 5. Disruption of lawful meeting or gathering by word or conduct 42.04 Class B Attempted Disruption of a meeting 6. Public threats obviously offensive manner 42.01a4 Class C illegal display of a firearm in a public place in a manner calculated to Alarm Riot obstruction of a passageway Footnote attempting to charge a Class B firearm restriction as an ATTEMPT may be an unwise attempt at enforcement.. Caution : Do Not Attempt this at Home: I was attempting to show you a unique firearm feature, and shot my ceiling 16
Constitutional Collision or How to be on the 5 o clock news Carry + (Carry plus): Evaluation of Municipal Prosecution Carry only 2 nd Amendment, Tx Constitution, (does carry without more = calculated to alarm?) Demonstrations only (no guns).1 st Amendment (speech, assembly, petition for redress) Carry and protected speech = Two U. S. Constitutional issues in City Court Evaluate cases with Carry + means searching for conduct (evidence of threat, alarm, obstruction) or for unprotected speech which is prohibited by statute. A Bad idea does not usually translate into a Good Result. I have an idea, lets get the City Attorney to file this as Attempted Disorderly Conduct.. Jurors in Andrews County heard testimony from witnesses called by the prosecutor who saw Open Carry Advocate Keoughan walking through town with firearms, as well as 911 calls made to the police department. In the end jurors concluded he did not meet the definition display in a manner calculated to cause harm. We wrestled with it quite a bit, I think the hard part was it wasn t about second amendment, it wasn t about open carry, it was about figuring out exactly how it fit into disorderly conduct, Head Juror Leslie Boone told CBS7. So we have leftovers is there Food for Thought Forfeiture procedures..seizing every firearm as policy Law Enforcement education.has probable cause regarding firearms changed? An open carry group plans a spontaneous demonstration, and the location chosen is a parking lot at a busy intersection. There is a small strip center with a Bank, and a popular restaurant is located next door. Another Bank is directly across the street. The selected date is Friday at 4:30pm, to get maximum exposure with rush hour traffic. The OC group meets at the restaurant, then when 10 members have assembled, they walk to their cars, take out rifles and shotguns; and start walking openly carrying the weapons. The OC group called the local TV and newspaper as the demonstration started. Bank officials call 911, reporting men with guns. Same basic facts but the group is a terrorist cell, planning a mall attack. At 4:30pm on a Friday, the group arrives, and take guns and Open Carry signs from their vehicles... 17
Bills to Watch..Pending Legislation FOOTNOTE When you experience a misfire Legal or mechanical, Check to see if the barrel is stopped up 18
Legal Q&A By Scott Houston, TML Deputy Executive Director and General Counsel; and Cori Webb, TML Law Clerk Authors Note: Certain Second Amendment organizations have recently begun organizing rallies and gatherings dedicated to the open carry of rifles in Texas. In addition, some individuals have been exercising their right to open carry rifles. This Q&A will address state law and municipal authority over the regulation of firearms (e.g., rifles, shotguns, and handguns) in Texas. In what places is a person prohibited by state law to carry a firearm? State law prohibits the carrying of certain types of firearms and in certain places. A firearm generally means any device designed, made, or adapted to expel a projectile through a barrel by using the energy generated by an explosion or burning substance or any device readily convertible to that use. TEX. PENAL CODE 46.01(a)(3). A handgun is a subset of a firearm and means any firearm that is designed, made, or adapted to be fired with one hand. Id. 46.01(a)(5). A person commits a third degree felony if the person intentionally, knowingly, or recklessly possesses or goes with any firearm: 1. on the physical premises of a school or educational institution, any grounds or building on which an activity sponsored by a school or educational institution is being conducted, or a passenger transportation vehicle of a school or educational institution, whether the school or educational institution is public or private, unless pursuant to written regulations or written authorization of the institution; 2. on the premises ( premises generally means a building or a portion of a building, but not including any public or private driveway, street, sidewalk or walkway, parking lot, parking garage, or other parking area) of a polling place on the day of an election or while early voting is in progress; 3. on the premises of any government court or offices utilized by the court, unless pursuant to written regulations or written authorization of the court; 4. on the premises of a racetrack; 5. in or into a secured area of an airport (i.e., an area of an airport terminal building to which access is controlled by the inspection of persons and property under federal law); or 6. within 1,000 feet of premises the location of which is designated by the Texas Department of Criminal Justice as a place of execution on a day that a sentence of death is set to be imposed on the designated premises and the person received notice that doing so is prohibited (unless the person is on a public road and going to or from his home or business). Id. 46.03. The exclusions above apply regardless of whether a person holds a concealed handgun license. Id. 46.003(f): 1
Concealed handgun license (CHL) holders are subject to a number of further restrictions relating to the concealed carrying of a handgun. For example, a CHL holder may not carry a concealed handgun: 1. if the CHL holder is given written notice, on the premises of a business that is licensed by the Texas Alcoholic Beverage Commission and that derives 51 percent or more of its business from the sale of alcohol; 2. on the premises where a high school, collegiate, or professional sporting event is taking place, unless the handgun is used for the event; 3. on the premises of a correctional facility; 4. if the CHL holder is given written notice pursuant to Penal Code Section 30.06 that carrying is prohibited, on the premises of a state-licensed hospital or nursing home, unless the administration has granted written permission to the CHL holder; 5. if the CHL holder is given written notice pursuant to Penal Code Section 30.06 that carrying is prohibited, in an amusement park; 6. if the CHL holder is given written notice pursuant to Penal Code Section 30.06 that carrying is prohibited on the premises of a church, synagogue, or other established place of religious worship; 7. anytime the handgun is not concealed or the CHL holder is intoxicated; 8. if the CHL holder is given written notice pursuant to Penal Code Section 30.06 that carrying is prohibited, into any meeting of a governmental entity; or 9. on the premises of employment if prohibited by the CHL holder s employer, but an employee may generally leave handgun in private, locked car in parking lot. Id. 46.035(a), (b)(1), (b)(2), (b)(3), (b)(4), (b)(5), (b)(6); (c); (d); TEX. GOV T CODE 411.204; TEX. LABOR CODE 52.061 et seq. (Note: Texas Penal Code 30.06(c)(3) requires that the sign giving the notice contain language identical to the following: Pursuant to Section 30.06, Penal Code (trespass by holder of license to carry a concealed handgun), a person licensed under Subchapter H, Chapter 411, Government Code (concealed handgun law), may not enter this property with a concealed handgun. The sign must include the exact language above in both English and Spanish, be printed in contrasting colors with block letters at least one inch in height, and be displayed in a conspicuous manner clearly visible to the public.) As one would expect, peace officers, certain security guards commissioned by the Texas Board of Private Investigators and Private Security Agencies, members of the armed forces, corrections officers, and officers of a court are exempt in certain circumstances. Id. 46.03(b) & (h); 46.15. In addition, a person convicted of a felony or a family violence offense is prohibited from possessing a firearm, with some limited exceptions. Id. 46.02. Moreover, it is illegal to possess, manufacture, transport, repair or sell a machine gun ( any firearm that is capable of shooting more than two shots automatically, without manual reloading, by a single function of the trigger ) or short-barreled gun ( a rifle with a barrel length of less than 16 inches or a shotgun with a barrel length of less than 18 inches, or any weapon made from 2
a shotgun or rifle if, as altered, it has an overall length of less than 26 inches ), unless federally registered under the National Firearms Protection Act. Id. 46.01(10). In what places is a person allowed by state law to openly carry a firearm? Long Guns (e.g., Rifles and Shotguns) Because state law governs firearms, and because it does not prohibit the carrying of a rifle or shotgun in a public place, a person is generally allowed to carry those weapons in public in Texas. Article I, Section 23, of the Texas Constitution, the Right to Keep and Bear Arms provision, provides that: Every citizen shall have the right to keep and bear arms in the lawful defense of himself or the State; but the Legislature shall have power, by law, to regulate the wearing of arms, with a view to prevent crime. The above provision is the starting point for whether a person may possess or openly carry a firearm. It allows lawful carrying of firearms, but it also authorizes the state legislature to regulate to prevent crime. Contrary to the opinion of some, neither the Texas Constitutional provision above, nor the U.S. Constitutional provision, is absolute. U.S. Const., Amend. II ( A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed. ); District of Columbia v. Heller, 554 U.S. 570 (2008)( the Second Amendment right is not unlimited [i]t is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose. ); Reyes v. State, 906 S.W.2d 256 (Tex. App. Fort Worth, 1995), petition for discretionary review granted, reversed 938 S.W.2d 718, rehearing on petition for discretionary review denied (State constitutional right to bear arms does not prevent legislature from prohibiting possession of arms with intent to prevent crime.). Handguns The open carry of handguns in public is prohibited in Texas. A person may carry a handgun on private property or in a car or boat (technically, in a watercraft ). A handgun in a car or boat must be concealed. Carrying a concealed handgun in a car or boat does not require a concealed handgun license. More specifically, the Penal Code provides that a person commits a Class A misdemeanor if he or she intentionally, knowingly, or recklessly carries on or about his or her person a handgun if the person is not: (1) on the person s own premises or premises under the person's control; or (2) inside of or directly en route to a motor vehicle or watercraft that is owned by the person or under the person's control. TEX. PENAL CODE 46.02(a). In addition, a person commits an offense if the person intentionally, knowingly, or recklessly carries on or about his or her person a handgun in a motor vehicle or watercraft that is owned by the person or under the person s control at any time in which: (1) the handgun is in plain view; or (2) the person is engaged in criminal activity, other than a Class C misdemeanor that is a 3
violation of a law or ordinance regulating traffic or boating. Id. 46.02(a-1). Also, a person may not carry a handgun if prohibited by law from doing so (e.g., if the person is on parole or probation or is a member of a criminal street gang). Courts have concluded that states have a right to regulate the carrying of handguns, and that neither the Texas nor U.S. Constitutions limit that authority. (The constitutional right to keep or bear arms in self-defense or in the defense of the state, is no defense to an indictment for carrying a pistol contrary to the statute. Heller, 554 U.S. 570; Masters v. State, 685 S.W.2d 654 (Tex. Crim. App. 1985), certiorari denied 106 S.Ct. 155, 474 U.S. 853, 88 L.Ed.2d 128 (Article 1, Section 23, of the Texas Constitution, providing that the legislature shall have power to regulate wearing of arms authorizes Penal Code limitations that define the crime of unlawfully carrying a weapon.). In what ways does state law expressly preempt a city from regulating firearms? State law relating to firearms expressly preempts municipal authority over: (1) the transfer, private ownership, keeping, transportation, licensing, or registration of firearms, air guns, ammunition, or firearm or air gun supplies; or (2) the discharge of a firearm or air gun (e.g., a pellet, BB, or paintball gun) at a sport shooting range (defined as a business establishment, private club, or association that operates an area for the discharge or other use of firearms for silhouette, skeet, trap, black powder, target, self-defense, or similar recreational shooting). TEX. LOCAL GOV T CODE 229.001(a); 229.001(e)(1) & (e)(2). In what ways does state law expressly authorize a city to regulate firearms? The Local Government Code expressly authorizes a city to regulate the following: 1. the discharge of firearms or air guns within the limits of the city, other than at a sport shooting range (a city can prohibit or regulate the discharge of a firearm or other weapons within the city s original city limits, but may not do so in annexed areas and the extraterritorial jurisdiction in certain circumstances see next question). Tex. Atty. Gen. Op. No. GA-0862 (2011); 2. the use of property, the location of a business, or uses at a business under the city s fire code, zoning ordinance, or land-use regulations as long as the code, ordinance, or regulations are not used to circumvent the prohibition against regulating the transfer, private ownership, keeping, transportation, licensing, or registration of firearms, air guns, ammunition, or firearm or air gun supplies, or the discharge of a firearm or air gun at a sport shooting range; 3. the use of firearms or air guns in the case of an insurrection, riot, or natural disaster if the city finds the regulations necessary to protect public health and safety (This exception does not authorize the seizure or confiscation of any firearm, air gun, or ammunition from an individual who is lawfully carrying or possessing the firearm, air gun, or ammunition); 4
4. the carrying of a firearm or air gun by a person other than a person licensed to carry a concealed handgun at a: a. public park (For example, a city could prohibit anyone other than a concealed handgun license holder from carrying a firearm in a city park. Tex. Atty. Gen. Op. No. DM-364 (1995)); b. public meeting of a municipality, county, or other governmental body (A city may prohibit a CHL holder from attending a meeting with a handgun by posting notice under Penal Code Section 30.06 that doing so is prohibited); c. political rally, parade, or official political meeting; or d. nonfirearms-related school, college, or professional athletic event; (Note: Items 4a and 4b do not allow municipal regulation if the firearm or air gun is in or is carried to or from an area designated for use in a lawful hunting, fishing, or other sporting event and the firearm or air gun is of the type commonly used in the activity. TEX. LOCAL GOV T CODE 229.001(c).) 5. the hours of operation of a sport shooting range, except that the hours of operation may not be more limited than the least limited hours of operation of any other business in the municipality other than a business permitted or licensed to sell or serve alcoholic beverages for on-premises consumption; or 6. the carrying of an air gun by a minor on: (a) public property; or (b) private property without consent of the property owner. Id. 229.001(b). The exceptions above are relatively narrow. For example, the Local Government Code preempts a city housing authority from regulating a tenant s otherwise lawful possession of firearms. Tex. Atty. Gen. Op. No. DM-71 (1991). Legislation passed in 2013 (S.B. 987) provides that, if a city regulates in violation of state law, the attorney general may bring an action in the name of the state to obtain a temporary or permanent injunction against the violation. TEX. LOCAL GOV T CODE 229.001(f). In what ways does state law expressly prohibit city regulation of firearms? In addition to the general state law preemption of municipal authority discussed in the question above, other laws have been enacted in recent sessions that expressly prohibit municipal regulation in certain circumstances. At the request of various landowners and other groups, the legislature amended state law in 2005 (S.B. 734) to limit municipal authority over certain firearms discharges. According to the bill analysis for the legislation: In some parts of the state, large tracts of land that have traditionally been used for hunting leases have been annexed. Upon annexation, the municipality frequently informs the owners of these large tracts that they can no longer discharge firearms on 5
the property, thereby ending their right to lease their property for hunting. Many owners of these large tracts depend on the revenue generated from their hunting leases. Because of that analysis and the subsequent passage of legislation, a city may not apply a regulation relating to the discharge of firearms or other weapons in the extraterritorial jurisdiction of the city or in an area annexed by the municipality after September 1, 1981, if the firearm or other weapon is: 1. a shotgun, air rifle or pistol, BB gun, or bow and arrow discharged on a tract of land of 10 acres or more and more than 150 feet from a residence or occupied building located on another property in a manner not reasonably expected to cause a projectile to cross the boundary of the tract; or 2. a center fire or rim fire rifle or pistol of any caliber discharged on a tract of land of 50 acres or more and more than 300 feet from a residence or occupied building located on another property; and in a manner not reasonably expected to cause a projectile to cross the boundary of the tract. TEX. LOCAL GOV T CODE 229.002. The 1981 date is relevant because that was the date of enactment of another law commonly known as the Agriculture Protection Act (APA) Chapter 251 of the Agriculture Code. The APA generally prohibits a city from applying nuisance regulations to an agricultural operation if doing so would negatively affect the operation. The Local Government Code provisions reference back to the APA, which makes the firearms limitations above retroactive to property annexed after 1981. The law, in response to alleged shotgun pellets raining down on a school adjacent to a dove lease, was later amended to give cities in Collin and Tarrant Counties additional authority. Id. 229.003 & 229.004. Can a city prohibit firearms in a city building or facility? Concealed Handgun by Concealed Handgun License (CHL) Holder A city has very limited authority to prohibit a CHL holder from carrying in city facilities to which the general public has access. As mentioned in the first question, state law prohibits a CHL holder from carrying a concealed handgun on the premises: (1) of a polling place on the day of an election or while early voting is in progress; and (2) any government court or offices utilized by the court, unless pursuant to written regulations or written authorization of the court. In addition, a city has the option of posting a specific notice to prohibit a CHL holder from carrying into any meeting of a governmental entity. TEX. PENAL CODE 46.035(c) & (i); 30.06. (Texas Penal Code 30.06(c)(3) requires that the sign giving the notice contain certain language that is printed n a certain size.) City councilmembers or other city officials who hold a concealed handgun license have no special right to carry a concealed handgun into a meeting. However, if a city council does not post notice that license holders are prohibited from carrying their concealed handguns in the 6
meeting room, any license holder may do so (unless the building where the meeting room is located also houses a polling place during an election or a city s municipal court and/or and office used by the court). A no firearms allowed or similar sign has no effect on a CHL holder s ability to carry a concealed handgun on property in which he is otherwise lawfully present. Id. 30.05(f). But the fact that a person holds a CHL does not grant him any special right of access to city buildings and facilities that are not open to the general public. Firearms in General Yes, as long as the city provides notice that carrying firearms is prohibited in the building. Under Penal Code 30.05(a)(1) & (2), the state s criminal trespass statute, [a] person commits an offense if the person enters or remains on or in property of another without effective consent and the person: had notice that the entry was forbidden or received notice to depart but failed to do so. Notice means oral or written communication by the owner or someone with apparent authority to act for the owner. A sign or signs posted on the property or at the entrance to the building, reasonably likely to come to the attention of intruders, indicating that entry is forbidden while carrying a firearm should be sufficient. TEX. PENAL CODE 30.05(b)(A) & (C). In other words, a sign stating No Firearms Allowed should be sufficient. The penalty under the criminal trespass statute would generally be a Class B misdemeanor. However, it is a Class A misdemeanor if a person carries a deadly weapon during the commission of the offense or is on a Critical infrastructure facility. A critical infrastructure facility means, among other places, if completely enclosed by a fence or other physical barrier that is obviously designed to exclude intruders: 1. an electrical power generating facility, substation, switching station, electrical control center, or electrical transmission or distribution facility; 2. a water intake structure, water treatment facility, wastewater treatment plant, or pump station; or 3. a natural gas transmission compressor station. Id. 30.05. Certain public safety officers and employees of the owner are exempt from this provision. Id. 30.05(e). Can a police officer arrest or disarm a person who is legally, openly carrying a long gun (e.g., a rifle or shotgun) in public? Not without a reasonable suspicion of other illegal conduct. As stated above, the open carrying of a handgun is prohibited by Texas law. Thus, an officer has the authority to disarm and/or arrest a person who is doing so. 7
More interesting, however, is the open carry of a long gun. Because the Texas Constitution allows it, and because the legislature has not prohibited it, open carry of a long gun is legal. Of course, state law does provide restrictions to ensure public safety. Penal Code Section 42.01 governs disorderly conduct. It provides that a person commits a Class B misdemeanor offense if he or she intentionally or knowingly displays a firearm or other deadly weapon in a public place in a manner calculated to alarm. TEX. PENAL CODE 42.01(8); see also TEX. LOCAL GOV T CODE 229.001(7)(d). If a peace officer encounters a person with a long gun, it is within his or her authority to inquire about the weapon. However, if the person is not holding the weapon at ready, pointing the weapon, brandishing it in a threatening manner, or otherwise using it in a manner calculated to cause alarm, the officer without more has limited authority to disarm the person. Interestingly, state law arguably gives a peace officer more authority to disarm a concealed handgun license holder of his or her handgun than it does for a non-licensed long gun carrier. See TEX. GOV T CODE 411.207. What law governs a police officer s authority to question a person who is openly carrying a long gun? The Fourth Amendment of the U.S. Constitution. The Fourth Amendment protects [t]he right of the people to be secure in their persons against unreasonable searches and seizures. U.S. CONST., Amend. IV. The Fourth Amendment does not proscribe all contact between the police and citizens, but is designed to prevent arbitrary and oppressive interference by enforcement officials with the privacy and personal security of individuals. I.N.S. v. Delgado, 466 U.S. 210, 215 (1984) (quoting United States v. Martinez Fuerte, 428 U.S. 543, 554 (1976)). Although brief encounters between police and citizens require no objective justification, it is clearly established that an investigatory detention of a citizen by an officer must be supported by reasonable articulable suspicion that the individual is engaged in criminal activity. Terry v. Ohio, 392 U.S. 1 (1968); United States v. Weaver, 282 F.3d 302, 309 (4th Cir. 1968). And, where a state permits individuals to openly carry firearms, the exercise of this right, without more, cannot justify an investigatory detention. U.S. v. Black, 707 F.3d 531 (4th Circ. 2013). At least one federal appeals court has stated that permitting such a justification would eviscerate Fourth Amendment protections for lawfully armed individuals in those states. Id. If a rally or demonstration by a group supporting open carry is planned for your city, the best course of action is for law enforcement officials to contact the event organizers and discuss each person s rights and the plans of law enforcement. In every case, each law enforcement agency should consult with legal counsel to understand its authority to investigate a person who is openly carrying a long gun in Texas. 8
Can you show in chart form the basic rules for where a private individual can carry a firearm? Absolutely. This chart does not cover every situation, but rather provides a general overview as to where a private citizen may carry a firearm (i.e., it doesn t list exceptions for peace officers, etc.). 9
Open Carry Texas Quemadmoeum gladis nemeinum occidit, occidentis telum est!! Tag Archives: disorderly conduct The Elephant In The Room Yesterday, three more OCT members were cited under Penal Code Section 42.01(a)(8) in Austin. This comes on the heels of three individuals in San Antonio being cited under the same offense for lawfully carrying openly according to Texas law and the Constitution. The Penal Code reads, DISORDERLY CONDUCT. (a) A person commits an offense if he intentionally or knowingly (8) displays a firearm or other deadly weapon in a public place in a manner calculated to alarm. I ve highlighted several aspects of this law that law enforcement seem to be intentionally ignorant of. Chapter 6 of the Penal Code defines these words as such: INTENTIONALLY: A person acts intentionally, or with intent, with respect to the nature of his conduct or to a result of his conduct when it is his conscious objective or desire to engage in the conduct or cause the result. KNOWINGLY: A person acts knowingly, or with knowledge, with respect to the nature of his conduct or to circumstances surrounding his conduct when he is aware of the nature of his conduct or that the circumstances exist. A person acts knowingly, or with knowledge, with respect to a result of his conduct when he is aware that his conduct is reasonably certain to cause the result. The open carry of rifles and shotguns is perfectly legal in Texas. There are no laws that regulate the keeping or bearing of these arms. Section 42.01(a)(8) does mention that such weapons cannot be carried in a manner calculated to cause alarm. So, a person has to consciously be aware that his/her conduct is calculated to cause alarm. The problem that law enforcement and their statist enablers in
the district attorneys offices are going to have in the courts is that we are very clear that our objective is to educate, not alarm. In other words, we are only KNOWINGLY and INTENTIONALLY engaging in conduct meant to raise awareness and educate. By definition, that is our goal with all OC activities. We ve just proven the only thing we knowingly and intentionally do is educate. The rest of 42.01 does not say that education is considered disorderly conduct so there is no offense. However, some law enforcement agencies are charging us under (a)(8), so the next test is whether what we are knowingly and intentionally doing is calculated to induce alarm. The Penal Code does not define calculated. In such cases, the law reverts to the commonly used definition of the term. In this case, calculated means made or planned to accomplish a certain purpose; deliberate or deliberately planned; premeditated. The state has three very difficult obstacles to overcome when charging someone with a 42.01(a)(8) violation with regards to open carry. So, the next place we look to is the case law. There aren t really many cases dealing with this particular section of the Penal Code. The legal encyclopedia Texas Jurisprudence isn t particularly helpful either. But, there are cases that deal with displaying a weapon in a manner calculated to cause alarm. In the Jones v. State case, George Earl Jones was charged under the Disorderly Conduct statute in that he did then and there unlawfully intentionally and knowingly display a deadly weapon, namely, A KNIFE, in a public place and in a manner calculated to alarm. Jones followed his ex-wife (or girlfriend) into her place of employment to talk to her, but she wouldn t talk to him. He pulled out a knife and made a slashing gesture with his fingers across his neck. Jones argued that the State did not prove that, when he pulled out the knife, he had the culpable mental state to alarm anyone. The court responded that a defendant s intent may be determined from his words, actions, and conduct. This is key because the state is trying to prove that by openly carrying a firearm we are intentionally causing alarm. However, our words, actions and conduct are not such that any reasonable person could infer such intent. This case is the most recent case dealing with a weapon (1999). There is another, unrelated (or perhaps a distant family member), case called Jones v. State (130 S.W. 1001 (Tex. Crim. App. 1910)) from 1910. In this case, G.J. Jones was convicted of carrying a pistol openly onto a public road. The difference in this case and why it doesn t apply to our open carry of rifles is that in 1910 it was illegal to openly carry a pistol. Texas was just getting over the cowboy justice days and only peace officers were permitted to openly carry a pistol. The case law doesn t say exactly what he did whether he had it holstered or was brandishing it. The court ruling just notes that Jones had no right to go into the public highway upon land the fee of which rested in him and disturb the peace, either by loud and vociferous talking or displaying a weapon. The court went on to clarify that no person, unless he be a peace officer, not even the owner of the premises, can go into a social gathering and carry on or about his person a pistol, without violating the provisions of this article. So, in this case, Jones was directly violating the law to have a weapon at all in public at the time. It is worth noting that all of this case is before concealed carry existed in Texas, and it was illegal in general to carry a pistol anywhere in public. Perhaps the best case law with regards to the Disorderly Conduct charge is the Grieve v. State case in 2008. In this case, someone called the police after seeing a man on his balcony with what appeared to be a pistol. The police were called and responded to the apartment of the suspect. While in the house,
the officers smelled marijuana and Grieves was subsequently also charged with drug violations. The appellant, Christopher Scott Grieves, appealed to suppress the drug charges because the officers didn t have probable cause to search the apartment. The court ruled that, Although the State maintains the fact that someone called the police is sufficient to show the gun was displayed in a way calculated to cause alarm, we cannot agree. The mere fact that the police were called is not evidence of the way in which the gun was displayed. Nor is the mere fact that a person saw a gun displayed on a balcony evidence that the balcony was in a public place. Without some evidence describing the balcony or the manner in which the gun was displayed, we cannot conclude there were any facts or circumstances showing the gun was displayed in a public place in a manner calculated to alarm. This case alone is proof that merely HAVING a gun displayed legally in public does not constitute Disorderly Conduct. Our best chance is to defeat the required mens rea. Mens rea is a latin legal term defined as an element of criminal responsibility, a guilty mind; a guilty or wrongful purpose; a criminal intent. Guilty knowledge and wilfulness. As we ve already noted, Tex. Penal Code 42.01(a) states that: A person commits an offense if he intentionally or knowingly then (a)(8) states: displays a firearm or other deadly weapon in a public place in a manner calculated to alarm. That second phrase in a manner calculated to alarm requires that the state not only prove that you carried a rifle, but that you did so in a manner calculated to alarm. It is not automatically assumed that carrying a rifle can only be done in such a manner. This especially seems to be backed up by the fact that Tex. Penal Code 46.02: Unlawful Carrying of Weapons, applies only to handguns, illegal knives, or clubs. Rifles and shotguns are blatantly omitted from the statute. The question then becomes whether one actually did alarm someone, as in did someone call 911? And even if so, was that person reasonably alarmed? The burden of proof as to one s mental state for intentionally or knowingly seems to be the key. If the officer use excessive force and violence upon such person, such person being where he has a right to be, he may repel force by force, and if, in the reasonable exercise of self defense, he kills such officer, he is justifiable. Plummer v. State, 136 Ind. 306. This premise was upheld by the Supreme Court of the United States in the case: John Bad Elk v. U.S., 177 U.S. 529. The Court stated: Where the officer is killed in the course of the disorder which naturally accompanies an attempted arrest that is resisted, the law looks with very different eyes upon the transaction, when the officer had the right to make the arrest, from what it does if the officer had no right. What may be murder in the first case might be nothing more than manslaughter in the other, or the facts might show that no offense had been committed. An arrest made with a defective warrant, or one issued without affidavit, or one that fails to allege a crime is within jurisdiction, and one who is being arrested, may resist arrest and break away. lf the arresting officer is killed by one who is so resisting, the killing will be no more than an involuntary manslaughter. Housh v. People, 75 111. 491; reaffirmed and quoted in State v. Leach, 7 Conn. 452; State v. Gleason, 32 Kan. 245; Ballard v. State, 43 Ohio 349; State v Rousseau, 241 P. 2d 447; State v. Spaulding, 34 Minn. 3621. When a person, being without fault, is in a place where he has a right to be, is violently assaulted, he may, without retreating, repel by force, and if, in the reasonable exercise of his right of self defense, his assailant is killed, he is justified. Runyan v. State, 57 Ind. 80; Miller v. State, 74 Ind. 1.
These principles apply as well to an officer attempting to make an arrest, who abuses his authority and transcends the bounds thereof by the use of unnecessary force and violence, as they do to a private individual who unlawfully uses such force and violence. Jones v. State, 26 Tex. App. I; Beaverts v. State, 4 Tex. App. 1 75; Skidmore v. State, 43 Tex. 93, 903. An illegal arrest is an assault and battery. The person so attempted to be restrained of his liberty has the same right to use force in defending himself as he would in repelling any other assault and battery. (State v. Robinson, 145 ME. 77, 72 ATL. 260). Each person has the right to resist an unlawful arrest. In such a case, the person attempting the arrest stands in the position of a wrongdoer and may be resisted by the use of force, as in self- defense. (State v. Mobley, 240 N.C. 476, 83 S.E. 2d 100). One may come to the aid of another being unlawfully arrested, just as he may where one is being assaulted, molested, raped or kidnapped. Thus it is not an offense to liberate one from the unlawful custody of an officer, even though he may have submitted to such custody, without resistance. (Adams v. State, 121 Ga. 16, 48 S.E. 910). Story affirmed the right of self-defense by persons held illegally. In his own writings, he had admitted that a situation could arise in which the checks-and-balances principle ceased to work and the various branches of government concurred in a gross usurpation. There would be no usual remedy by changing the law or passing an amendment to the Constitution, should the oppressed party be a minority. Story concluded, If there be any remedy at all it is a remedy never provided for by human institutions. That was the ultimate right of all human beings in extreme cases to resist oppression, and to apply force against ruinous injustice. (From Mutiny on the Amistad by Howard Jones, Oxford University Press, 1987, an account of the reading of the decision in the case by Justice Joseph Story of the Supreme Court. As for grounds for arrest: The carrying of arms in a quiet, peaceable, and orderly manner, concealed on or about the person, is not a breach of the peace. Nor does such an act of itself, lead to a breach of the peace. (Wharton s Criminal and Civil Procedure, 12th Ed., Vol.2: Judy v. Lashley, 5 W. Va. 628, 41 S.E. 197). Disclaimer: This post is not designed or intended to be used as legal advice. We are not attorneys and make no guarantees about our interpretation of case law and Texas Penal Code. This post in intended to be used purely for informational purposes. This entry was posted in Texas Law and tagged 42.01, disorderly conduct, open carry, texas penal code on September 15, 2013 by OCTexas.
Open Carry Texas Tips I ve gotten numerous requests for tips from people wanting to open carry in Texas. As you know, it is legal to openly carry rifles and shotguns in the state. It is NOT legal to openly carry pistols or revolvers unless you are on private property. You can find all the laws pertinent to open carry on our The Law page. The first question I always get asks, what is the law that allows open carry? I can t find it. You won t find it. There is no law that says, We, the government of the State of Texas, bestow upon you the right to carry your firearms openly as long as they are long and bulky. Now, go forth and annoy law enforcement officers who don t know better. The fact of the matter is that laws don t create rights. They never have and never will. Every single law that has ever been passed has only succeeded in limiting rights. Laws are the harbingers of doom for God-given rights. I love the 9th Amendment because it recognizes that the Constitution does not enumerate every single right that you and I possess for merely existing. It recognizes that we are endowed with numerous rights that are not mentioned in the Bill of Rights. For example, the right to travel, the right to breathe, the right to think, and the right to fall in love to name a few. The fact that there ISN T a law in Texas relating to openly carrying rifles and shotguns means we have the right to do so. The only laws that have been passed with reference to our right to keep and bear arms have largely targeted handguns and are specific to them. For example, Section 30.06 of the Texas Penal Code bars CHL holders who carries a handgun from entering the premises of a building bearing the applicable sign. So, legally speaking, it is still lawful to carry a rifle or shotgun into a government building bearing this sign as long as it doesn t otherwise bar all firearms. But, let s get back to openly carrying rifles and shotguns. Now that we know it s legal, how do we do it? These are just suggestions and are by no means legal advice. It s important that before you undertake the task of openly carrying in a legal manner you first COMPLETELY understand what that legal manner is. You must familiarize yourself with the laws so that you can intelligently inform those with whom you come in contact and law enforcement. I can t promise that when you exercise your right to keep and bear arms that you will do so unmolested. If anyone knows that things can go wrong, it s me! But, I can tell you that if you remain calm and explain yourself intelligently your chances of completing a successful carry with be greatly increased.