Felony Enhancement Gun Free Zone to CHL holder?

[sjdt]

Can the "Drug Free Gun Free Zone" be charged to enhance an Unlawful Carry by CHL holder in an empty school parking lot (late on weekend night) to a felony?

[jmra]

Can the "Drug Free Gun Free Zone" be charged to enhance an Unlawful Carry by CHL holder in an empty school parking lot (late on weekend night) to a felony?

How exactly would a CHL get an unlawful carry in a school parking lot on a weekend night?

[Keith B]

Can the "Drug Free Gun Free Zone" be charged to enhance an Unlawful Carry by CHL holder in an empty school parking lot (late on weekend night) to a felony?

The Gun Free School Zone Act has a provision exempting CHL holders from violation if they hold a CHL from the state where the school is located.

Provisions[edit]18 U.S.C. § 922(q)(2)(A) states:

It shall be unlawful for any individual knowingly to possess a firearm that has moved in or that otherwise affects interstate or foreign commerce at a place that the individual knows, or has reasonable cause to believe, is a school zone.

18 U.S.C. § 922(q)(3)(A) states:

Except as provided in subparagraph (B), it shall be unlawful for any person, knowingly or with reckless disregard for the safety of another, to discharge or attempt to discharge a firearm that has moved in or that otherwise affects interstate or foreign commerce at a place that the person knows is a school zone.

Exceptions
Pursuant to 18 U.S.C. § 922(q)(2)(B):

[18 U.S.C. § 922(q)(2)(A)] does not apply to the possession of a firearm—
(i) on private property not part of school grounds;
(ii) if the individual possessing the firearm is licensed to do so by the State in which the school zone is located or a political subdivision of the State, and the law of the State or political subdivision requires that, before an individual obtains such a license, the law enforcement authorities of the State or political subdivision verify that the individual is qualified under law to receive the license;(iii) that is—
(I) not loaded; and
(II) in a locked container, or a locked firearms rack that is on a motor vehicle;
(iv) by an individual for use in a program approved by a school in the school zone;
(v) by an individual in accordance with a contract entered into between a school in the school zone and the individual or an employer of the individual;
(vi) by a law enforcement officer acting in his or her official capacity; or
(vii) that is unloaded and is possessed by an individual while traversing school premises for the purpose of gaining access to public or private lands open to hunting, if the entry on school premises is authorized by school authorities.

Pursuant to 18 U.S.C. § 922(q)(3)(B):
[18 U.S.C. § 922(q)(3)(A)] does not apply to the discharge of a firearm—
(i) on private property not part of school grounds;
(ii) as part of a program approved by a school in the school zone, by an individual who is participating in the program;
(iii) by an individual in accordance with a contract entered into between a school in a school zone and the individual or an employer of the individual; or
(iv) by a law enforcement officer acting in his or her official capacity.

Definitions
Pursuant to 18 U.S.C. § 921(a)(25):

The term "school zone" means—
(A) in, or on the grounds of, a public, parochial or private school; or
(B) within a distance of 1,000 feet from the grounds of a public, parochial or private school.
Pursuant to 18 U.S.C. § 921(a)(26) the term "school" means a school which provides elementary or secondary education, as determined under State law.
Penalty[edit]18 U.S.C. § 924(a)(4) establishes the penalty for violating GFSZA:
Whoever violates the Act shall be fined not more than $5,000, imprisoned for not more than 5 years, or both. Notwithstanding any other provision of law, the term of imprisonment imposed under this paragraph shall not run concurrently with any other term of imprisonment imposed under any other provision of law.

A conviction under the GFSZA will cause an individual to become a "prohibited person" under the Gun Control Act of 1968. This will bar them from legally owning firearms for the rest of their life.[1][2][3]

Texas Penal Code 46.035 still has to be folloed to be legal when carrying on school grounds though.

[RoyGBiv]

Can the "Drug Free Gun Free Zone" be charged to enhance an Unlawful Carry by CHL holder in an empty school parking lot (late on weekend night) to a felony?

It is not illegal for a CHL to carry in a school parking lot.

"Premises" is defined in 46.035

(3) "Premises" means a building or a portion of a building. The term does not include any public or private driveway, street, sidewalk or walkway, parking lot, parking garage, or other parking area.

Keith has already posted the relevant portion of the GFSZA above.

So.... Did your instructor not cover this in class?

[ELB]

Strikes me as an odd question, since I suspect "Unlawful Carry by CHL Holder" refers to Penal Code Sec. 46.035. UNLAWFUL CARRYING OF HANDGUN BY LICENSE HOLDER, which is a State law, and the GFSZA is a Federal law. IANAL so I don't know how a state prosecutor could or would use a Federal law to "enhance" a State charge, or to charge with violation of the Federal law. Can state prosecutors do that? (I guess that is the OP's question).

Further, PC Sec Sec. 46.035. UNLAWFUL CARRYING OF HANDGUN BY LICENSE HOLDER only makes unlawful carrying of a handgun by a license holder at "a high school, collegiate, or professional sporting event or interscholastic event," not a school parking lot or school generally.

It is PC Sec. 46.03. PLACES WEAPONS PROHIBITED.that generally prohibits handguns and other weapons "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;" since "premises" does not include school parking lots (unless, I guess, there was some "activity sponsored by a school" going on in the parking lot), a CHL carrying a concealed handgun in a school parking lot is not doing anything illegal to be charged with, especially in an empty parking lot.

Again, IANAL and all that, I only read Overlawyered.com, the Volokh Conspiracy, and Legal Insurrection.com.

I wonder what the rest of this story is....

[RKlenka]

It is a pretty specific phrased question, I to would like to know more of the story.

[GeekwithaGun]

Unlawful carry if the CHL is involved or charged with illegal activity and carrying at the same time - just my thoughts, got to hear the rest of the story

[Keith B]

Unlawful carry if the CHL is involved or charged with illegal activity and carrying at the same time - just my thoughts, got to hear the rest of the story

That's a good point. If there was other illegal activity, say alcohol being drank on school property, then the CHL exemption could be null and void and the federal charge could possibly be brought into play.

[RKlenka]

What else is there to do in a school parking lot late at night besides drinking? :P

[DocV]

What else is there to do in a school parking lot late at night besides drinking? :P

Algebra

[Keith B]

What else is there to do in a school parking lot late at night besides drinking? :P

Algebra

Isn't Algebra a terrorist organizaiton? I thought it was when i was having to do it in school.

[RoyGBiv]

What else is there to do in a school parking lot late at night besides drinking? :P

used to take my kids to play on the playground at the local elementary school in the evenings..
Nothing illegal about that I supposed. Always carried.

[SC1903A3]

Me being an old man this smells like a troll.

[jbarn]

Unlawful carry if the CHL is involved or charged with illegal activity and carrying at the same time - just my thoughts, got to hear the rest of the story

That's a good point. If there was other illegal activity, say alcohol being drank on school property, then the CHL exemption could be null and void and the federal charge could possibly be brought into play.

So a CHL holder who breaks any law exposes himself to a violation of penal code 46.02?

I don't think a CHL becomes void when a person breaks some other law.

[Wodathunkit]

What else is there to do in a school parking lot late at night besides drinking? :P

Algebra

Isn't Algebra a terrorist organizaiton? I thought it was when i was having to do it in school.

I almost dropped my blue bell, don't make me laugh while I'm eating ice cream!