Article: philosophy same despite new handgun law

[Paladin]

http://web.baytownsun.com/story.lasso?e ... 7e77ab1aae

"By Austin Kinghorn
Baytown Sun

Published February 5, 2006

When Harris County’s top attorney snubbed a new state law meant to allow Texans to legally travel with handguns for protection five months ago, questions were raised as to what practical effect the new law would have.

And while the law was meant to allow law-abiding citizens to carry handguns in their vehicles, local law enforcement agencies haven’t say they haven’t changed their enforcement of unlawful carrying of a concealed weapon.

Hailed by pro-gun groups as hallmark legislation for the 79th legislative session, HB 823 earned State Rep. Terry Keel, R-Austin, himself a former county prosecutor and sheriff, a legislator of the year award from the Texas State Rifle Association for his work in passing the bill.

But the day before the bill took effect on Sept. 1 of last year, Harris County District Attorney Chuck Rosenthal said he would continue to prosecute unlawful possession of a weapon cases the same as always.

“It is still going to be against the law for (unlicensed) persons to carry handguns in autos,� Rosenthal said in August.

Texas law has historically allowed a citizen to have a firearm in their vehicle while traveling, but the definition of traveling has been in debate for literally centuries.

“The way those cases got decided was on a very complex set of court precedents dating back to 1895,� said Jim Dark, executive director of the TSRA.

The bill attempted to clarify the long debated definition of traveling by stopping shot of defining it but assuming someone is doing it if they are in a private vehicle, not prohibited by law from owning a firearm and not a member of a street or engaged in criminal activity, which does not include misdemeanors such as speeding.

Keel made the intent of his bill clear in a entry to the House’s journal after its overwhelming passage.

“In plain terms, a law-abiding person should not fear arrest if they are transporting a concealed pistol in a motor vehicle,� Keel wrote. “There is no longer the need for a law enforcement officer to apply a subjective definition of what constitutes “traveling� where the citizen is cloaked with the presumption per the terms of the new statute.�

But Baytown police spokesman Marvin Currie said neither has the department’s philosophy changed.

“Since [the district attorney’s] office is the one that processes the charges we have to follow his guidelines as to what he wants to accept as charges,� Currie said.

Still, a search of the department’s records for UCW arrests uncovered almost no cases which would have met the standards of HB 823, with most of the department’s arrests accompanying other charges such as driving while intoxicated or in possession of a controlled substance — both illegal activities that exempt travelers from the language of the new law.

Only two times since the new law took effect did Baytown police arrest a suspect on UCW charges alone. On Nov. 30, a man was arrested for having a handgun stuffed in his pants after police pulled him over for speeding and not wearing a seat belt.

On Dec. 11 a man was arrested after he admitted to having a .45 in his glove box after he was pulled over because his license plate light was out. He was not otherwise breaking the law.

Before the law went into effect on Sept. 1, Baytown police arrested five people for unlawfully carrying a handgun independent of additional felony charges. While some weren’t breaking the law, reports identified “suspicious behavior,� such as two men who slumped in their seats when a patrol unit’s spotlight was shined on their vehicle while parked at a house.

When police found a gun and the vehicles occupants couldn’t tell them whose house they were sitting outside of, the pair was hauled to jail on the only offense police had on them — carrying a gun.

Mont Belvieu police chief Jerry Whitman, whose department made only two unlawful carrying of a handgun arrests last year — only one of which was after the law took effect — explained that his department uses UCW as a “handle law� that is applied with discretion to get suspicious persons off the streets.

“If a citizen is traveling and carrying a weapon in his or her vehicle for protection without a license to carry that weapon, and is not an apparent threat to others, he may not be charged with UCW,� Whitman said. “On the other hand, if this same citizen is in a place that lends suspicion that he may be involved in illegal actions, he could be charged with UCW.�

Whitman used the example of a person found sitting in a vehicle behind a convenience store with a history of being robbed.

“His arrest would perpetuate fingerprinting and photographing him and those actions could link the subject to other crimes,� Whitman said.

Chambers County Sheriff Joe LaRive shares a similar philosophy, saying deputies are given discretion in applying UCW charges.

“We’re not looking to lock up everybody that has a handgun in their car,� LaRive said.

Indeed, the department only made five UCW gun arrests last year, with only one falling after Sept. 1. In that case, an occupant of one vehicle shot at another vehicle, hardly an action considered protected by the new language of HB 823.

When asked how a citizen could be sure he or she was traveling legally in light of the varied enforcement of HB 823, LaRive said a concealed handgun permit was the only assured justification.

Both LaRive and Whitman openly said HB 823 offered more confusion than help to the current law, even if that is not what its author intended.

But Damian Duarte, a spokesman for Keel, said the intent was simple.

“I think our perspective would be if the person is stopped and those conditions are met the officer shouldn’t need to go any further,� he said. “It shouldn’t be an issue.�

But while UCW arrests may not be a big target by local law enforcement agencies, citizens can be assured that, as has been historically the case in Texas, how the law will treat them depends largely on what officer happens to pull you over.

TSRA’s Dark said that while he is sensitive to law enforcement’s need for tools to get potential criminals off the streets, distinguishing between the two was the problem HB 823 was supposed to fix.

“The overwhelming majority of officers are very conscientious about their jobs and most are very reasonable in their discretion,� Dark said. “But there are cases out there where officers interpret that particular law to mean if you have a gun in your car you go to jail and you can tell it to the judge.� "

[Baytown]

I was going to ask if anyone had seen this, or if they already used their copy of the Baytown Scum for toilet paper.

I will not say much about this as it directly affects me, but you all know how I feel about this.

The law is the law, regardless of how anti-gunners want to keep saying they are confused. The only reason they are confused is because they do not want to accept the fact that if a person meets the criteria, they are travelling----period. No gray area, no confusion.

And for the record: IMO, though I am no attorney, this is not a NEW LAW, it is only a definition added to an existing law.

Glenn

[KBCraig]

http://web.baytownsun.com/story.lasso?e ... 7e77ab1aae

But Baytown police spokesman Marvin Currie said neither has the department’s philosophy changed.

“Since [the district attorney’s] office is the one that processes the charges we have to follow his guidelines as to what he wants to accept as charges,� Currie said.

Police are never obligated to arrest someone just because the DA says they're breaking the law. It can be argued that police don't even have to follow guidelines when the DA says to not arrest for a certain offense. After all, they don't work for the DA.

Only two times since the new law took effect did Baytown police arrest a suspect on UCW charges alone. On Nov. 30, a man was arrested for having a handgun stuffed in his pants after police pulled him over for speeding and not wearing a seat belt.

On Dec. 11 a man was arrested after he admitted to having a .45 in his glove box after he was pulled over because his license plate light was out. He was not otherwise breaking the law.

Both men need lawyers. Or, if they had lawyers, they need competent lawyers.

Kevin

[Baytown]

I would suggest anyone interested in these cases from Baytown should get a copy of the cases under the Freedom Of Information Act and read them.

These two cases are not ones that we as gun owners want to hold up as our "victims" of overzealous cops--trust me.

Glenn

[ThunderDownUnder]

I was going to ask if anyone had seen this, or if they already used their copy of the Baytown Scum for toilet paper.



Glenn

It's too thin. Better use for the sun is lay the pages down in front of the brunson to catch the pigeon crap. Help beautify the new Texas Ave Speedway. Love those new stripes.
J

[anygunanywhere]

I was going to ask if anyone had seen this, or if they already used their copy of the Baytown Scum for toilet paper.



Glenn

It's too thin. Better use for the sun is lay the pages down in front of the brunson to catch the pigeon crap. Help beautify the new Texas Ave Speedway. Love those new stripes.
J

Ah yes, Texas Ave Speedway. I rowed a few gears light to light in my day. It was a sad day when they made the curves down Texas Ave.

Of course the racing was always better out on Tri-Cities Beach Rd.

[KBCraig]

I would suggest anyone interested in these cases from Baytown should get a copy of the cases under the Freedom Of Information Act and read them.

These two cases are not ones that we as gun owners want to hold up as our "victims" of overzealous cops--trust me.

Why? Did they not meet the presumption of traveling as stated in the law? (Should be easy enough to answer without going through the whole FOIA process.)

If they did, then, yes, I do want to hold them up as victims of overzealousness, no matter what kind of scum they were/are. If they were being scum in a no-scum zone, then charge them with scumminess. If scumminess is not an offense, then don't charge them with something that is also not an offense.

Kevin

[stevie_d_64]

This is the big issue we we're talking to some folks with this last weekend up in Dallas...

The question you should ask your DA, or for that matter a DA candidate...

"Do you believe in enforcing legislative intent, or if you feel the law is too ambiguous, ignore the law, and instruct Law Enforcement in your jurisdiction to do the opposite?"

As a followup, or clarification statement:

"In regards to how the DA's in Harris, Dallas, Bexar, Travis counties are conducting an aggressive prosecution of UCW's, even though HB 823 which was signed into law and is in effect now, allows unlicensed (non-CHL'ers) to carry a gun in their vehicles while "traveling"...Is the intent of that law not clear?"

"Why would these large metropolitan DA's be doing the opposite, and making zero effort to publically, or privately, ask for direction or clarification from the legislature, or the State of Texas's Attorney Generals office???"

I think it is imperative that we go to our candidates meetings in our area, (before the primaries) and ask these kinds of questions of them...Get them on record, and get that information to the TSRA legislative and legal representatives, either way they go on this issue...

[Baytown]

The "Snake" is no more. The stripes are straight again.

Holding these two up as our example of wrongful prosecution is like those morons holding Gary Graham up as a poster child for ending the death penalty.

I do not understand how anyone that is a responsible gun owner would support a person who is in a high crime, high drug area, who is associated with drugs and more than likely involved with drug commerce at the time. This is exactly the attitude that is going to lose more rights for us. The average Joe on the street would support these arrests. The average Joe would understand he would not be arrested for having a gun in his car, like these two.

If you support these two, then you are naive. (Not a personal attack on anyone, I am sorry if that offends.)

Example: If a W/M approx 6' 3", 350 pounds, with brown hair has been holding up convenience stores, and an officers on patrol, late at night, rolls up on a car behind a convenience store w/ a person matching that description he will lawfully detain him (I hope). If during that detention he finds a handgun in the car, and does not arrest for the UCW, he is a lazy sluff.

Did the guy meet the presumption of traveling? Sure. Should he be arrested? Sure. To say "no" is irresponsible and defies logic.

This is not going to be a problem for a law abiding citizen, no need to get paranoid.

Glenn

[KBCraig]

I do not understand how anyone that is a responsible gun owner would support a person who is in a high crime, high drug area, who is associated with drugs and more than likely involved with drug commerce at the time. This is exactly the attitude that is going to lose more rights for us. The average Joe on the street would support these arrests. The average Joe would understand he would not be arrested for having a gun in his car, like these two.

If you support these two, then you are naive. (Not a personal attack on anyone, I am sorry if that offends.)

Example: If a W/M approx 6' 3", 350 pounds, with brown hair has been holding up convenience stores, and an officers on patrol, late at night, rolls up on a car behind a convenience store w/ a person matching that description he will lawfully detain him (I hope). If during that detention he finds a handgun in the car, and does not arrest for the UCW, he is a lazy sluff.

If UCW is all he can find to arrest the guy for, then either he is a lazy sluff, or there is no basis for an arrest. And if there is no basis, then don't arrest him!

The "average Joe" think it's okay to arrest people for being suspicious, because he thinks that's what police already do. Police officers, being sworn to uphold the law and the Constitution, cannot resort to treating arrests as a popularity contest.

(Not a personal attack on anyone, I am sorry if that offends.)

Likewise.

Kevin

[Baytown]

I used to think if a person met the requirements for a presumption of travelling then there should be no problem. I even argued that point to other officers.

The more I think about the definition and the way it is written, I have to now agree that because one is presumed to be travelling
does not mean they are.

I can not speak for everyone, but I can not see letting an aggravated thug keep a gun on him so he can go rape someone's wife, or rob a store, or shoot a citizen, when there is a tool there to stop that.

It would be idiotic to stop someone on traffic, in a neighborhood they do not live in, at 0330, check them and find out they have been arrested for burglary of a motor veh, criminal trespass, etc... several times and not arrest for UCW.

It is beyond me why someone favors letting a dope head burglar ride around with a gun in his car and not want it stopped.

I will also say that I do not have a law degree and for us to argue about this is like DiFi and Ted Kennedy having an argument over the 9mm vs the .45 ACP. (assuming none of us have law degrees, save chas.)

Glenn

[Chris]

that's just one law out of many that police commonly misinterpret. it pisses me off to no end. when the street racing laws were changed, apparently a lot of cops failed to actually read the law. i saw plenty of people in jail for peeling out, which is no longer illegal, as racing requires 2 people now. all these screwballs were arresting people for a law they didn't read. meanwhile, i wrote 4 congressmen demanding an explanation on why they forgot about the whole peeling out issue. the responses were to contact my DA. one told me it was an error they made, but didn't catch it until after it had been passed. OK, so fix it.

i obtained a months worth of court records because i suspected some of our guys writing fictional tickets. sure enough, i saw a ton of 'cracked windshield' tickets. there is no such law.

BB guns are not illegal and cannot be confiscated, but they still end up in the evidence room with no charge attached. just because you are committing a misdemeanor, doesn't mean you should be arrested for UCW with a rifle. i have seen my share of illegal stops. it irritates me to no end when another officer calls me to come help him with a question about a ticket. my advice on several occassions has been to let them go in a hurry and hope they don't find out you had no reason to stop them.

some of these mistakes are honest, but i think if you're going to be a police officer, you should probably know the law you are enforcing. DPS being a prime example. had they actually read the law before enforcing it, they might have found out that license plate frames were legal. instead, they didn't read it, their dope cases got thrown out, and they had to get the legislature to pass a completely new law that still needs interpretation. if you don't know it, then don't enforce it. i bust my ass reading all that crap and watching as bills go through the legistlative process. have a little pride in your profession.

sorry for the gripe.

[stevie_d_64]

Baytown...

If I were to speculate...

I believe the law, as written, was not all that hard to understand and to enforce...

I think the DA's in this case complicated the issue (for whatever reason) and made it more difficult and dangerous for Law Enforcement in those jurisdictions...

I believe this law is a stepping stone to something that is going to have to happen in the next session...

For the time being, we will probably have to tolerate this effort by the DA's in question and their usurping legislative intent till we can get the terms defined, or we can take our grievances to the polls...

HB 823 in my opinion was an interesting test...But had very little impact on us as CHL holders...Other than giving a little heartburn to know that there are certain elected officials out there who have defined thamselves rather bluntly on the issue...

[Tom]

All this said, I fully agree that we don't want our test case to be some street thug that will appeal to no one but Jeffrey Dauhmer! I want it to be a grandmother coming home from volunteering at M.D. Anderson Cancer Center at 2:00 AM in the morning.
Regards,
Chas.

Charles,

I mildly disagree with the grandmother test case. I think we will be better
served if that case is the street thug, for the very simple reason that if
the law applies to him, then by extension it applies to the other vast
majority of folks, like the grandmother, who never live outside of, or on
the edge of, the law.
The grandmother case, in contrast, would still leave the street thug, and
all others in between, in some sort of grey zone requiring still more test
cases.
To put it simply, get the worst case to form the basis that leaves the rest
of us alone and in the clear.
Anyhow, that is my simple view of how things should work.

Kind Regards,

Tom

[Charles L. Cotton]

Tom, you have a point. I deleted my own post. I didn't like it - too open to misinterpretation.

Chas.