TexasCHLforum.com

gringo pistolero wrote:

G.A. Heath wrote:The arrests were for trespass with a deadly weapon, nothing would have changed if the arestees were armed with any other weapon.

Many men in Texas carry pocket knives. If any weapon qualifies, I'm surprised more trespassing charges don't get bumped up for pocket knives.

Actually that happens quite a bit as the definition for illegal knives is intentionally vague, a hold over from our old Jim Crow laws.

SherwoodForest wrote: If not presented in a threatening manner , and not functional/loaded - the PURPOSE for possession of these NON - firearms would appear to any reasonable person to be merely DEMONSTRATIVE......which was precisely the purpose for this lawful public demonstration - as well as the original intent of the legislature in providing the exception.

That isn't how I see it and obviously not how law enforcement saw it. They saw 2 individuals carrying items not as displays but deadly weapons. It's the point of them carrying the revolvers or they could of had toy guns. Mind you they very well could've been asked to leave for toy guns if it caused an issue with others, but there is no doubt in my mind the men were carrying C&B revolvers because they were deadly weapons. Now they were doing it to make a political point but what they were doing was in no way the intent of the legislature.

cantu vs state

furnishes a defendant with the chance to show that the weapon itself is an antique and, therefore, cannot be characterized as a firearm. Thus, he cannot be validly charged with possession of a firearm since the gun is not a firearm. Appellant had this opportunity at the suppression hearing and also at the trial on the merits.

This is a Texas case and as you can see by the language in it it doesn't bar arrest on weapons charges at all it just allows the defendant the chance to show that the object is not a weapon. It clearly supports the ability to arrest thus making an arrest of those open carrying C&R pistols legal.

Several defendants have sought to defend weapons cases or other cases involving use of
weapons by arguing that the weapons was made before 1899, therefore are antiques. The
courts have rejected this approach saying in effect that the antique or curio exception
applies to treating the items as antiques, not to using them as weapons.

http://ss.utpb.edu/media/files/universi ... N-LAWS.pdf
University of Texas of the Permian Basin

and just to finish off

You're right. I don't have the case any longer, but an attorney sent me one several years ago that dealt with this issue. If I remember correctly, it was a felon-in-possession case where he claimed a old black powder pistol wasn't a "firearm." The court rejected that argument holding that, for purposes of weapons offenses, it was not the legislature's intent to allow them to be possessed (or presumably carried). Since we don't get into legislative intent unless the statute is ambiguous, the holding was wrong, but nevertheless it's there.

Chas.

http://texaschlforum.com/viewtopic.php? ... 99#p852910


Please understand that one of my biggest reasons for even posting on this topic is not just to debate but to correct what I see as horrible legal advice. People taking this crap to heart make decisions like the two who were arrested here and the ones last month over at the gov. mansion. I respect a persons right to protest or make any and all statements including going to jail. The fact is that in making this statement one should plan on going to jail. The only way to correct it, if you feel the law says otherwise, is to go to jail and hope you get a weapons charge that you can fight and win on appeal or by legislative action. Those are the facts. You can be arrested and legally charged with several different things and while you may beat the charge in court it would be totally legal and lawful, heck even reasonable under the current case law.

SherwoodForest wrote:Unfortunately the language used in the text of the laws actually DOES means things, and if it ain't "grass or weeds" it cannot be a code violation when it ain't cut.

Of course it means something but it's not everything. These laws don't occur in a vacuum and what the words say and what courts rule is not always the same. In this case there is certainly precedent for arrests. That is how the system works. Even if incorrect, unless a ruling by a higher court occurs wrong is, well, right. Arguing that because you think otherwise it doesn't matter what the courts have ruled doesn't seem like a sound legal analysis.

SherwoodForest wrote:The necessary threshold for a Section 42.01 (a)(8) Disorderly Conduct offense would be the use of threatening language directed towards another person in conjunction with THE DISPLAY of a deadly weapon in public IN A MANNER CALCULATED TO CAUSE ALARM.

Holstered NON "firearms" = "NON "handguns" , and the absence of any verbally abusive, or threatening language = NO offense.

I repeat.......NO CRIME......BUT ......."somebody" did not like the message being delivered.

WHAT was the message?

That a pre-1899 ( or replica) BLACK POWDER revolve is NOT covered by Section 46.02(a). Therefore ( high powers of the State liking it or not) it ain't ILLEGAL.

That is your interpretation of the law. Care to find a case where a higher court has agreed with you? Of course since, like I said, you would have to be convicted then appeal and win to get such a ruling it's a high bar but that is how it works. You have your theory the prosecutor has theirs and a court is the one that decides. There is case law that if one is treating a black powder firearm as a firearm and not as a antique or replica then the law can treat it as a firearm, which while it may be a bad ruling, is still there on the books until appealed and definitely gives PC for an arrest and prosecution. There is also the fact that no one can know by looking if the gun falls under the 1899 exemption and the courts have ruled that the said exemption doesn't bar arrest but allows the defendant to give evidence at trial that a gun isn't a firearm thus allowing all law enforcement action that could occur when open carrying a handgun. Look pretend all you want that merely reading the law is all it takes. That just isn't the way our legal system works.

SherwoodForest wrote: The issue we are addressing in this thread - is WHY people who are NOT violating any Texas law are essentially ordered to cease their LAWFUL CONDUCT and leave a public area in which they have every right to be.

As I have said before, in this and other threads, there is ample reason to believe, or to have probable cause if you prefer, that these individuals were violating state law. As a matter of law the only way, besides a legislative change, for anyone to objectively state such a thing is for a person to be arrested, convicted, and have their case overturned to provide precedent that states that such activity doesn't violate State law. In this case we actually have case law that easily supports charges of both UCW and a DC so stating that the didn't trespass when they could clearly be charged with more serious crimes is either ignorance of the law, an advocate's position, or unwillingness to accept reality for what someone wants or believes to be true.

bayouhazard wrote:

SherwoodForest wrote:Reality check. Those folks at the Capitol were engaged in a peaceful, and lawful assembly, and were violating NO TEXAS LAW.

The Travis County D.A.'s office did not like the message they were communicating plain & simple.

I disagree with you on other points but I agree with this. If they thought a real crime was being committed, they wouldn't have given the protestors a chance to pack up and go home quietly. Bank robbers don't get a free pass to take the money and run. On the other hand, if the objective is silencing the protestors, getting them to leave under their own power accomplishes that goal.

It was a disturbance charge if I remember right and the officers were willing to allow them to stop the "disturbance" by placing the handguns in their cars and continue on with their protest. That doesn't seem like trying to halt anything but the activity that the officers felt was causing the disturbance. At no time did I hear the officers ask anyone to leave just that they stopped what they believed was illegal behavior. While you state as a fact "They were violating NO TEXAS LAW" there is precedent to say otherwise. Clearly and obviously there is more than enough PC to put such a case in front of a court who can then decide what if any laws were broken.