Odessa Rifle Carry, Law Discussion

[locke_n_load]

https://www.newswest9.com/article/news/ ... fI6slDZ-Ns

Basically, guys were carrying rifles, in the overflow parking lot of a bar, to protest the continual closing of the bar. Got arrested for unlawful carry of a weapon.
But, 46.02, which has a generic "premises is property" definition, seems to apply to handguns only.
46.035 has the "premises is a building or portion of building" definitions, but that section is for license holders.
TABC code has the definition that "premises is property", but mainly quotes chapter 46 in regards to weapon carry, and the red 51% applies to handguns only.

So what part of TABC code or Texas Penal Code directly relates rifle carry being unlawful on 51% property?

[nightmare69]

Griffis said that he, “Conferred with TABC (Texas Alcoholic Beverage Commission). We discussed that and they said any part of that property that is owned or adjacent to, connected to that bar is the premises and TABC is going to be fully involved in this deal also,” he said.

I’m wondering how they consider the parking lot as part of the premises.

[G.A. Heath]

I’m wondering how they consider the parking lot as part of the premises.

IIRC I think Charles once said that there is case law that premises includes all property owned/leased by the licensee which is why the TSRA and NRA pushed for our premises definition in 46.035 when the legislation was passed.

[Jusme]

It will be dependent upon what is on the parameters of the permit. If the licensee, has the parking lot as part of the permitted premise, then the TABC laws regarding the carry of long guns is enforceable. If not then they have no force of law. IANAL, but from my LEO training, that is my understanding

[Grayling813]

I have to wonder if members of "Open Texas" are also members of "Open Carry Texas." Seems about the same mentality. Why are rifles needed to protest a bar being closed? Just asking for trouble (and 15 minutes of fame).

[denwego]

I came here to post about this story after I just read it in the local news... beat me to it!

This is pretty obviously (to me) a criminal situation being charged under the wrong law. I've checked four different articles, and they all say that the dudes carrying rifles were intending to intimidate people who might shut down the bar, so I'll assume that's the case for the sake of discussion. If so, it is the most open and shut case of disorderly conduct under §42.01(a)(8) I can possibly freaking imagine. It's very likely to be a terroristic threat under §22.07(a)(2), to a less black and white degree, but a good argument could make it pretty slam dunk as well.

I think the misapplied charge of "carrying a weapon on licensed premises," whatever imaginary thing that's supposed to be, is the misunderstanding of one thing and the desire of another. To the first point, the issue of blue or red signs is that they're written in an intentionally intimidating and ambiguous way - we've talked a bunch about how they are derived from the enhancement of §46.02 for people without a LTC, or §46,035 for people with a LTC, so I guess we don't need to rehash how they don't apply to non-handgun-firearms. But I don't think a beat cop in Odessa has ever actually read either of those sections, so probably thinks "hur dur all guns is weapons!" and is happy to just fling whatever they feel like, and a DA isn't going to be troubled by making someone accused like that get a lawyer to have the lawyer tell the judge that the charge is wrong.

To the second point, which I believe is leverage in the notion of plea-bargaining 99% of everything in America nowadays is this:

Disorderly Conduct under §42.01(a)(8) - Class B Misdemeanor
Terroristic Threat under §22.07(a)(2) - Either a Class B or a Class A or a State Jail Felony, depending on the circumstances proven in court... I think probably State Jail myself
Unlawfully Carrying a "Weapon" under §46.02 where alcohol is sold - 3rd Felony

Bet you they'll tell the absolute idiots involved in this stunt "hey, you're being charged with three felonies, but if you plead to Terroristic we'll go easy on you" and then no need to go to court to make cogent arguments.

By the way, the guys with rifles are criminals. They committed multiple crimes. I just want them to get charged with the right one so the law isn't cheapened by idiots on both ends.

Quick edit - the licensee or permittee, however, violated the Alcoholic Beverage Code by allowing them to have non-handguns on their property. They'll lose their license/permit and probably see a hefty fine, but, those sections don't apply to the person actually carrying a rifle. Always found that to be a weird point, but worth mentioning here.

[denwego]

https://www.newswest9.com/article/news/ ... fI6slDZ-Ns

Basically, guys were carrying rifles, in the overflow parking lot of a bar, to protest the continual closing of the bar. Got arrested for unlawful carry of a weapon.
But, 46.02, which has a generic "premises is property" definition, seems to apply to handguns only.
46.035 has the "premises is a building or portion of building" definitions, but that section is for license holders.
TABC code has the definition that "premises is property", but mainly quotes chapter 46 in regards to weapon carry, and the red 51% applies to handguns only.

So what part of TABC code or Texas Penal Code directly relates rifle carry being unlawful on 51% property?

Sorry, I soapboxed and didn't answer OP's question - there are no laws which prohibit carrying non-handgun firearms on such property. It's illegal for the person who's licensed/permitted to sell alcohol to allow it to happen, so if it were concealed and they could plead honest ignorance, nothing happens. §46.02 and §46.035 refer only to handguns, as you point out.

[ScottDLS]

https://www.newswest9.com/article/news/ ... fI6slDZ-Ns

Basically, guys were carrying rifles, in the overflow parking lot of a bar, to protest the continual closing of the bar. Got arrested for unlawful carry of a weapon.
But, 46.02, which has a generic "premises is property" definition, seems to apply to handguns only.
46.035 has the "premises is a building or portion of building" definitions, but that section is for license holders.
TABC code has the definition that "premises is property", but mainly quotes chapter 46 in regards to weapon carry, and the red 51% applies to handguns only.

So what part of TABC code or Texas Penal Code directly relates rifle carry being unlawful on 51% property?

Sorry, I soapboxed and didn't answer OP's question - there are no laws which prohibit carrying non-handgun firearms on such property. It's illegal for the person who's licensed/permitted to sell alcohol to allow it to happen, so if it were concealed and they could plead honest ignorance, nothing happens. §46.02 and §46.035 refer only to handguns, as you point out.

Charged under the wrong statute.

[Grayling813]

Latest update
https://www.newswest9.com/article/news/ ... 259836e6d8

“Why draw attention to yourselves? I mean she could have opened up and we might not have known about it until the next day but when you cause this kind of commotion we’re going to take action,” said Sheriff Griffis.

[srothstein]

To the second point, which I believe is leverage in the notion of plea-bargaining 99% of everything in America nowadays is this:

Disorderly Conduct under §42.01(a)(8) - Class B Misdemeanor
Terroristic Threat under §22.07(a)(2) - Either a Class B or a Class A or a State Jail Felony, depending on the circumstances proven in court... I think probably State Jail myself
Unlawfully Carrying a "Weapon" under §46.02 where alcohol is sold - 3rd Felony

I understand the concept of leverage in the plea bargaining, but there is one important point you have to remember when doing it. You must have at least a prima facie case of the offense you charge under. If you cannot prove all of the elements of the case, the original magistrate SHOULD reject the case and dismiss it. That rarely happens in my experience, but if you overcharge so much that any attorney can see you can't make the case, you lose all leverage. In this case, charging with unlawfully carrying would not give you leverage since any decent attorney would tell their client don't accept the offer, we can win.

I think that even charging with terroristic threat might be overcharging enough to lose the leverage, though it is a lot less likely. The elements of the offense require them to make a threat and for the threat to be to commit some offense. I am not sure that standing there with a rifle is making a threat to commit an offense. This is one that could be argued though, so it might be workable.

While I think the disorderly conduct charge might fly, it may be a hard case to make. The problem is proving what the phrase "calculated to alarm" means. The fact that people get alarmed is not always enough to prove they were carrying with that intent. If I were the officer making the arrest, and I decided to arrest them for this, that is the only charge I could see using.

By the way, the guys with rifles are criminals. They committed multiple crimes. I just want them to get charged with the right one so the law isn't cheapened by idiots on both ends.

I am not as sure of this as you. I don't think they are criminals, but will concede they might be guilty of disorderly conduct. Definitely not multiple crimes though. And the right to peaceably assemble and petition for redress of grievances does not say you cannot be armed at the time. It says you cannot start the violence is all. This one is debatable, IMHO.

Quick edit - the licensee or permittee, however, violated the Alcoholic Beverage Code by allowing them to have non-handguns on their property. They'll lose their license/permit and probably see a hefty fine, but, those sections don't apply to the person actually carrying a rifle. Always found that to be a weird point, but worth mentioning here.

Just as a matter of technical accuracy, but the licensee did not violate the Alcoholic Beverage Code. Sections 11.61 and 61.71 require the business owner to not allow carrying any firearm (other than a handgun if the person has a legal method to carry) inside a building on the premises. The armed protestors never went inside the building.

On a side note, the bar owner says the protestors were never on the licensed premise. Someone needs to get the license diagram from TABC to check if they really were on the licensed premise or not. That makes a big difference in the case, though I would bet on the business owner not understanding what is the legal definition of a licensed premise for this law.

On a second side note, I found it very interesting that the Sheriff says there was no protest. That is going to make it a couple very interesting court cases (the criminal charges and the probable civil suits against the county for the illegal arrests).

[denwego]

To the second point, which I believe is leverage in the notion of plea-bargaining 99% of everything in America nowadays is this:

Disorderly Conduct under §42.01(a)(8) - Class B Misdemeanor
Terroristic Threat under §22.07(a)(2) - Either a Class B or a Class A or a State Jail Felony, depending on the circumstances proven in court... I think probably State Jail myself
Unlawfully Carrying a "Weapon" under §46.02 where alcohol is sold - 3rd Felony

I understand the concept of leverage in the plea bargaining, but there is one important point you have to remember when doing it. You must have at least a prima facie case of the offense you charge under. If you cannot prove all of the elements of the case, the original magistrate SHOULD reject the case and dismiss it. That rarely happens in my experience, but if you overcharge so much that any attorney can see you can't make the case, you lose all leverage. In this case, charging with unlawfully carrying would not give you leverage since any decent attorney would tell their client don't accept the offer, we can win.

I think that even charging with terroristic threat might be overcharging enough to lose the leverage, though it is a lot less likely. The elements of the offense require them to make a threat and for the threat to be to commit some offense. I am not sure that standing there with a rifle is making a threat to commit an offense. This is one that could be argued though, so it might be workable.

While I think the disorderly conduct charge might fly, it may be a hard case to make. The problem is proving what the phrase "calculated to alarm" means. The fact that people get alarmed is not always enough to prove they were carrying with that intent. If I were the officer making the arrest, and I decided to arrest them for this, that is the only charge I could see using.

A good takeaway from the situation is that loose lips sink ships... the case for both disorderly conduct and terroristic threat is bolstered heavily by someone in the group apparently saying "we're here to prevent this business from being closed." The sources I've read don't say if it was bar-person or rifle-person, but I can see a jury being much more inclined to view that issue favorable to the prosecution once those words are in the air. Even if the defense retracts it or says it was taken out of context, it raises the point in an ugly way.

And the right to peaceably assemble and petition for redress of grievances does not say you cannot be armed at the time. It says you cannot start the violence is all. This one is debatable, IMHO.

No, it certainly doesn't, I just don't think this was a much of a protest in fact, even if they meant it to be in spirit. I don't think the facts of how it was conducted will play well to a jury when framed in the notion of "we were trying to redress our feelings on shutdown orders" when it doesn't seem they were trying to address any government setting or body. And they don't HAVE to, I realize, but it doesn't SEEM like it, and perception is a lot to a jury in these sorts of matters.

I do have a personal opinion to add on that, rather than discussing law... I think I've grown past the notion of protesting-while-armed as an individual. Back on Tax Day in 2007, during the very first Tea Party rally in my old city, I showed up with an old-looking lever action .45LC rifle I had, as a way of celebrating my right to be armed when I choose to be. I feel good about celebrating that right. I like handgun open-carry a LOT since it became legal a few years ago. I don't know if I would want to do it anymore myself in the context of non-2nd-amendment politics... if I care enough about an issue to go to the street in front of city hall to protest, I don't want a corollary issue to distract from perhaps convincing people to change their minds. If I think I need to go somewhere with a rifle, I think it's past the point of "protesting".

My opinion is also different if the issue is a specifically 2nd-amendment one, because then guns ARE the issue. I'd bring my rifle to a gun rally if it could further that cause. Abortion, lockdown restrictions, how all other problems should be dropped until Houston fixes potholes... I can settle for a sign or a witty shirt. It's not lost on me that folks walking around Texas cities with rifles brought the issue of OC up to most people in the general public, but it was people without guns sitting across from each other at tables at the capitol hashing things out logically who actually got the bills passed.

[Papa_Tiger]

It's not lost on me that folks walking around Texas cities with rifles brought the issue of OC up to most people in the general public, but it was people without guns sitting across from each other at tables at the capitol hashing things out logically who actually got the bills passed.

I would not be surprised if several of the people sitting across from each other at tables at the capitol were armed while hashing things out logically after concealed carry became law.

[chasfm11]

Separately, a group has attempted to contact the Ector County DA's office, trying to get copies of the probably cause behind the arrests. The DA is refusing contact, according to that group.

So help me here. Isn't the kind of information being sought public information?
https://texasscorecard.com/local/open-c ... in-odessa/

Sorry but this looks like the Waco situation to me. We saw how that one turned out.

[srothstein]

A good takeaway from the situation is that loose lips sink ships... the case for both disorderly conduct and terroristic threat is bolstered heavily by someone in the group apparently saying "we're here to prevent this business from being closed." The sources I've read don't say if it was bar-person or rifle-person, but I can see a jury being much more inclined to view that issue favorable to the prosecution once those words are in the air. Even if the defense retracts it or says it was taken out of context, it raises the point in an ugly way.

I had not seen that someone said that. That statement would go a long way towards the argument on either terroristic threats or disorderly conduct. I agree it would make the charge for terroristic threat a good starting point for leverage to plea bargain down to disorderly conduct, especially if the DC charge drops down to a fine only.

And the right to peaceably assemble and petition for redress of grievances does not say you cannot be armed at the time. It says you cannot start the violence is all. This one is debatable, IMHO.

No, it certainly doesn't, I just don't think this was a much of a protest in fact, even if they meant it to be in spirit. I don't think the facts of how it was conducted will play well to a jury when framed in the notion of "we were trying to redress our feelings on shutdown orders" when it doesn't seem they were trying to address any government setting or body. And they don't HAVE to, I realize, but it doesn't SEEM like it, and perception is a lot to a jury in these sorts of matters.

I do have a personal opinion to add on that, rather than discussing law... I think I've grown past the notion of protesting-while-armed as an individual. Back on Tax Day in 2007, during the very first Tea Party rally in my old city, I showed up with an old-looking lever action .45LC rifle I had, as a way of celebrating my right to be armed when I choose to be. I feel good about celebrating that right. I like handgun open-carry a LOT since it became legal a few years ago. I don't know if I would want to do it anymore myself in the context of non-2nd-amendment politics... if I care enough about an issue to go to the street in front of city hall to protest, I don't want a corollary issue to distract from perhaps convincing people to change their minds. If I think I need to go somewhere with a rifle, I think it's past the point of "protesting".

My opinion is also different if the issue is a specifically 2nd-amendment one, because then guns ARE the issue. I'd bring my rifle to a gun rally if it could further that cause. Abortion, lockdown restrictions, how all other problems should be dropped until Houston fixes potholes... I can settle for a sign or a witty shirt. It's not lost on me that folks walking around Texas cities with rifles brought the issue of OC up to most people in the general public, but it was people without guns sitting across from each other at tables at the capitol hashing things out logically who actually got the bills passed.

Actually, the statement that they were there to prevent the bar from being shut down is what really does make it a protest in my opinion. As for the rest of it, I agree that it was a poorly organized protest and poorly thought out. The guns did detract from the message of the people are fed up with the lockdown orders and even more so with choosing which businesses can open. They allowed the excuse for the Sheriff to arrest and lock up people that many Americans will say are criminals and deserve it. And with the other statements, they might even be criminals. I am not quite ready to grant that is true, but I can at least see how the charges can be made to fit.

I agree with you 100% on bringing guns to a protest on another subject. It is one of those cases where just because you can does not mean you should. Depending on the area you are in, the mere presence of firearms can cost you support from the middle of the roaders who are your true target. You are not trying to convince those who already have their mind made up either way, just the undecided and you should be careful of anything that will alienate that group.

[oohrah]

Openly carrying a weapon, legally, to a protest that has nothing to do with 2A rights or weapons is stupid and idiotic and only draws attention away from the purpose of the protest. Look how that worked out for the Michiganders at their state capitol protest.