Apparently Carrying a "Non-Gun" In Texas WILL Get You Arrested!!


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Foto Joe
September 15, 2013, 09:49 AM
Over the years on THR there have been many threads and conversations regarding the designation of "Non-Gun" to any actual or replica pre-1899 gun. For those of you who firmly believe the "Non-Gun" theory please follow the link below and you will see that the theory is extremely subjective. Unfortunately as the folks in the story are about to find out, the guys with the "Real" guns are going to impart a VERY expensive lesson.

It's a sad shame that things like this have to happen and I figure that eventually those arrested (including and elderly vet in a wheelchair) will be found not guilty under the Texas Constitution but the monetary cost to them will be felt for a long time.

http://www.theblaze.com/stories/2013/09/14/three-texans-including-pastor-and-quadriplegic-arrested-for-openly-carrying-black-powder-pistols-why-pro-gun-group-claims-arrests-were-illegal/

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Sam1911
September 15, 2013, 10:00 AM
Hmmm...we shall see. It does sound like a potentially positive move to create a test case in the TX Supreme Court.

However, as a warning, there is some suggestion that Alex Jones and his crew are heavily involved in this. Don't know if that's true or not, but just be aware and very wary.

9mmfan
September 15, 2013, 10:30 AM
This will be interesting. I wonder if the prosecution will be able to jam through the "calculated to alarm" bit. Even though what they were doing was to promote the opposite.

Maybe the charges will be dropped. There was a fellow that was testing the theory that his Texas CHL allowed him to carry the other items defined as weapons under Texas law. He was arrested for carrying a knife with a blade over 5 1/2 inches long. The charges were dropped. The reason was listed as being in "the interest of justice." If I can find a link I will post it.

I did once see an older man (older than me at least) open carrying a black powder revolver at a gas station once. Twixt here and Brownwood.

The cynic in me wonders if they would have been arrested if they weren't at a protest.

Will be interested to know how this turns out.

4v50 Gary
September 15, 2013, 10:48 AM
An officer's power of arrest is derived from the law. If there is no law, then there are no powers of arrest. Indeed, the situation can turn against the officer for making a wrongful arrest. Besides false imprisonment, there's also a civil tort action under Title 42, Section 1983, or deprivation of civil rights under the color of authority.

I suspect we will see a huge out of court settlement.

BSA1
September 15, 2013, 11:01 AM
WOW! Simply WOW!

Although as the late Paul Harvey said "the rest of the story" has yet to come out this makes a very strong case of how the video camera protects the public from police misconduct.

EljaySL
September 15, 2013, 12:08 PM
See how educational the Internet can be? I never would have guessed that Texas doesn't have open carry.

Jenrick
September 15, 2013, 12:22 PM
I actually teach Penal code for my agency (I am a full time LEO) at our academy, and the protesters are correct. A black powder, cap and ball pistol, designed to replicate a pre-1899 firearm (1845 Colt Navy replica for instance) is NOT a firearm under the law. There have been previous instances where Texas officers have tried to go off the Federal definition of a Firearm, but we don't work for the Federal government, so that's not an option. Now if any of the pistols featured a conversion cylinder and were capable of firing cartridge ammunition, that changes things bit.

-Jenrick

Sam1911
September 15, 2013, 12:35 PM
Jenrick, under federal law that isn't a firearm, either.

However, it would still be a deadly weapon if used in that way. Meaning, if you shot someone with one, you'd still be charged with ADW. The court wouldn't say "oh but that's not a firearm so it's ok."

The question that arises is how, specifically, does a state regulate carrying of weapons, and how does it define what those weapons so regulated, are?

In some places it may be possible for the law to treat an antique firearm as not a "firearm" under the definitions of the law, but still regulate carrying one when it is obviously intended as a defensive weapon.

How does that fit with TX law? Are only modern handguns prohibited from open carry, or other weapons as well?

JRs12Valve
September 15, 2013, 01:05 PM
Sam1911 Open carry of long guns is legal. The open carry of handguns is illegal. Simple as that. I was a member of their organization, till they started getting too active for me. I told everyone of those people they WILL get arrested for doing it. They did not listen.

They have have found a legal loop hole. They still got arrested, charged, jailed, and now they have to deal with the damn lawyers.

Sam1911
September 15, 2013, 01:45 PM
The open carry of handguns is illegal. Simple as that.
That's really my question. Does TX law say "carrying a handgun openly is illegal" and then define handgun as a modern firearm? Or does it also prohibit the carrying of various "weapons," such that any item carried expressly as a weapon is unlawful?

I was a member of their organization, till they started getting too active for me. I told everyone of those people they WILL get arrested for doing it. They did not listen.
I don't think perhaps you understood their purpose then.
Getting arrested can be a very powerful legal and political tool. It is extremely unlikely they didn't fully understand that they'd be arrested.

They have have found a legal loop hole. They still got arrested, charged, jailed, and now they have to deal with the damn lawyers.And if they're operating in the manner it appears they are (cameras rolling, someone quoting the law to the officers on film, etc.) then that's exactly to their plan.

Remember, you can't bring a case before the courts if you don't have "standing." Having standing generally means that you are or have been directly affected in a material way by the law or policy you're seeking to change. Being arrested is one of the most compelling ways to gain standing to sue and challenge that.

JRs12Valve
September 15, 2013, 02:20 PM
That's really my question. Does TX law say "carrying a handgun openly is illegal" and then define handgun as a modern firearm? Or does it also prohibit the carrying of various "weapons," such that any item carried expressly as a weapon is unlawful?

Yes, they define handgun as firearm meant to be fired with one hand. And prohibit an carrying of a handgun if it is in plain view. Ch 46, Sec. 46.02.

I don't think perhaps you understood their purpose then.
Getting arrested can be a very powerful legal and political tool. It is extremely unlikely they didn't fully understand that they'd be arrested.

They believed they would not be arrested, since it is technically not against the law.

And if they're operating in the manner it appears they are (cameras rolling, someone quoting the law to the officers on film, etc.) then that's exactly to their plan.

Remember, you can't bring a case before the courts if you don't have "standing." Having standing generally means that you are or have been directly affected in a material way by the law or policy you're seeking to change. Being arrested is one of the most compelling ways to gain standing to sue and challenge that.

Regardless of their intentions, they are in jail. I do believe we should have the option to open carry, I will not participate though. I do not see the merits of drawing that much attention to yourself.

Jenrick
September 15, 2013, 02:27 PM
Jenrick, under federal law that isn't a firearm, either.

Per the the ATF: the term “firearm” is defined in the Gun Control Act of 1968, 18 U.S.C. Section 921(a)(3), to include (A) any weapon (including a starter gun), which will, or is designed to or may readily be converted to expel a projectile by the action of an explosive; (B) the frame or receiver of any such weapon

A black powder pistol definitely falls under this definition. Now the AFT has been VERY reluctant to file charges on this in my experience, and the rule of thumb I have received from them is that the item in question must use fixed case ammunition that is commercially available. We had a suspect in possession of an actual Colt SAA in .45LC (not a replica) along with a bunch of narcotics, and when we went for the federal firearms enhancement we were told that they would not file charges as .45 LC was not "generally commercially available." YMMV however.

However, it would still be a deadly weapon if used in that way. Meaning, if you shot someone with one, you'd still be charged with ADW. The court wouldn't say "oh but that's not a firearm so it's ok."

Of course, in Texas it certainly qualifies as a deadly weapon, which would lead to enhancement on a lot of different charges.

How does that fit with TX law? Are only modern handguns prohibited from open carry, or other weapons as well?

Basically, if you read Chp 46.01.05: ""Handgun" means any firearm that is designed, made, or adapted to be fired with one hand" . 46.01.03: "Firearm" 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. Firearm does not include a firearm that may have, as an integral part, a folding knife blade or other characteristics of weapons made illegal by this chapter and that is:
(A) an antique or curio firearm manufactured before 1899; or
(B) a replica of an antique or curio firearm manufactured before 1899, but only if the replica does not use rim fire or center fire ammunition.

So as we've discussed already a cap and ball black powder replica pistol does not meet the definition of a firearm or a handgun.

Sec. 46.02. UNLAWFUL CARRYING WEAPONS. (a) A person commits an offense if the person intentionally, knowingly, or recklessly carries on or about his or her person a handgun ....

In short you can open carry a black powder pistol, as it's NOT a "handgun" under Texas law. You can open carry a "Firearm" which is NOT a "handgun" so long as you don't do it anywhere the law says you can't. Hence you can legally walk down S. Congress Ave. in front of the capital with a AK/AR/Shotgun/Etc. under this section, while doing so with a holstered unconcealed Raven .22LR is illegal.

Now there is a seperate offense under Sec. 42.01. 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

We deal with this on a regular basis when folks are open carrying to protest or just for the heck of it. Common sense and good judgement are the rule of the day on what constitutes a "manner calculated to alarm." If you show up at an anti-gun rally with your AR and are wandering around in low ready with the firearm, IMO you're probably there to cause alarm to the protestors. If on the other hand you are there with a bunch of Pro 2A ralliers, you aren't there to cause alarm regardless of the fact that someone might be alarmed.

-Jenrick

Sam1911
September 15, 2013, 03:13 PM
Regardless of their intentions, they are in jail. I do believe we should have the option to open carry, I will not participate though. I do not see the merits of drawing that much attention to yourself.Well, that's certainly your right. However believing you should have the right, and doing something to further that right aren't the same thing. The 'merits' of drawing that much attention to yourself could be accomplishing something to benefit all Texans. More specifically, they may be willing to accept the arrest, time in jail, time at trial, and the potential costs as the price that must be paid so that someday YOU (and other Texans) will have the rights you believe you should have.

At the least you could send them a little 'thank you' note or something.

Sam1911
September 15, 2013, 03:18 PM
Per the the ATF: the term “firearm” is defined in the Gun Control Act of 1968, 18 U.S.C. Section 921(a)(3), to include (A) any weapon (including a starter gun), which will, or is designed to or may readily be converted to expel a projectile by the action of an explosive; (B) the frame or receiver of any such weapon

A black powder pistol definitely falls under this definition. Now the AFT has been VERY reluctant to file charges on this in my experience, and the rule of thumb I have received from them is that the item in question must use fixed case ammunition that is commercially available. We had a suspect in possession of an actual Colt SAA in .45LC (not a replica) along with a bunch of narcotics, and when we went for the federal firearms enhancement we were told that they would not file charges as .45 LC was not "generally commercially available." YMMV however.

Don't forget though that federal law (18 U.S.C. § 921(a)(16)) defines "antique" firearm as well, and those are not subject to federal firearms laws on sale, possession, etc.

Q: What qualifies as an antique firearm?
As defined in 18 U.S.C. § 921(a)(16) the term “antique firearm” means —

any firearm (including any firearm with a matchlock, flintlock, percussion cap, or similar type of ignition system) manufactured in or before 1898; or
any replica of any firearm described in subparagraph (A) if such replica — is not designed or redesigned for using rimfire or conventional centerfire fixed ammunition, or uses rimfire or conventional centerfire fixed ammunition which is no longer manufactured in the United States and which is not readily available in the ordinary channels of commercial trade; or any muzzle loading rifle, muzzle loading shotgun, or muzzle loading pistol, which is designed to use black powder, or a black powder substitute, and which cannot use fixed ammunition.
(http://www.atf.gov/firearms/faq/collectors.html)

As for the question about Texas law, thanks! That's exactly what I wanted to know.

Foto Joe
September 15, 2013, 03:24 PM
I certainly salute their initiative and although I seldom if ever open carry I do spend a lot of time in the Lone Star State. I would love to see open carry simply because while carrying concealed you have to be super cautious about "exposing yourself" or printing as they refer to it. I've been informed by friends in Texas law enforcement that printing will get you "interview" in a hurry and depending upon your attitude possibly more.

swathdiver
September 15, 2013, 03:46 PM
Jenrick, please read the definition of a firearm in its entirety. At the end, it specifically states that antique firearms are not firearms. Same with deadly weapons, antique firearms are not that either. They are only classed as firearms when used in the commission of a crime.

Federal and Florida law does not cover antique firearms from open or concealed carry. As recently stated, I didn't know anyone willing to try this out but here's three who are.

Any restrictions on firearm ownership of any type is contrary to the Constitution. Each generation accepts the restrictions placed on them by the last and unless the government is stopped, someday they won't have any.

9mmfan
September 15, 2013, 04:47 PM
That's really my question. Does TX law say "carrying a handgun openly is illegal" and then define handgun as a modern firearm? Or does it also prohibit the carrying of various "weapons," such that any item carried expressly as a weapon is unlawful?
What Jenrick said, but he abbreviated 46.02 (UCW) slightly. It defines a weapon as a handgun, illegal knife or club.

An illegal knife down this way is, per 46.01
(6) "Illegal knife" means a:
(A) knife with a blade over five and one-half inches;
(B) hand instrument designed to cut or stab another by being thrown;
(C) dagger, including but not limited to a dirk, stiletto, and poniard;
(D) bowie knife;
(E) sword; or
(F) spear.
(7) "Knife" means any bladed hand instrument that is capable of inflicting serious bodily injury or death by cutting or stabbing a person with the instrument.

And a club,
(1) "Club" means an instrument that is specially designed, made, or adapted for the purpose of inflicting serious bodily injury or death by striking a person with the instrument, and includes but is not limited to the following:
(A) blackjack;
(B) nightstick;
(C) mace;
(D) tomahawk.

There are a mess o' nonapplicability clauses, such as if you are on property you own or control, etc.

As of September 1st, switchblades are no longer illegal as far as the state is concerned, but there is no preemption.

Patocazador
September 15, 2013, 04:48 PM
Per the the ATF: the term “firearm” is defined in the Gun Control Act of 1968, 18 U.S.C. Section 921(a)(3), to include (A) any weapon (including a starter gun), which will, or is designed to or may readily be converted to expel a projectile by the action of an explosive; (B) the frame or receiver of any such weapon

A black powder pistol definitely falls under this definition. Now the AFT has been VERY reluctant to file charges on this in my experience, and the rule of thumb I have received from them is that the item in question must use fixed case ammunition that is commercially available.
So as we've discussed already a cap and ball black powder replica pistol does not meet the definition of a firearm or a handgun. -Jenrick

When I had an FFL and a Cl. III license, an ATF agent wrote me a citation to appear in federal court in Atlanta for not listing a muzzleloading rifle in my firearms record. I complained to his superiors in Tampa and I never saw him again. They said that he didn't know the law and that he was wrong to insist on me appearing in federal court in Atlanta which is 410 miles from me. They dismissed the charge.

DoubleDeuce 1
September 15, 2013, 09:18 PM
It would be interesting to have seen the footage, if any, leading up to the contact, detention and arrest. All we have now is what the protesters want to be shown.:cool:

pohill
September 15, 2013, 09:33 PM
Protest all you want but taunting the cops with words such as "Nazi"...not necessary.
And keep in mind, any "test case" could backfire and the laws could be changed as far as black powder revolvers are concerned.

Tinpan58
September 16, 2013, 12:20 AM
As long as Texas keeps importing Californians it will only get worse, If you exercise your rights to much they will take them away from you. It sucks!

Foto Joe
September 16, 2013, 09:06 AM
pohill makes a very good point. Towards the end of one of the videos the camerman gets pretty agitated and that does not help their/our cause one bit. On the other hand, the elderly vet took it all in stride, probably due to the fact that he'd seen and done things in his life that make this pale by comparison.

By posting this originally I was trying to bring to light that there are people out there in our country still that are very much willing to speak up and pay a price for their/our freedoms. At least financially as well as through civil unrest and possible detainment.

Someone earlier mentioned that they thought a right wing activist (can't find the name on the posts this morning) was funneling money into this fight. My response to that is "so what". It's not like George Soros or Bloomberg have never stuck their noses into something that doesn't concern them.

I'm a strong advocate of open carry although for tactical reasons I find it less than ideal. I don't belong to their organization nor would I if given the chance, my chosen profession dictates that I have zero contact with law enforcement as an interview subject if I care to keep my clearances, a low profile provides quite nicely for my family and myself. Besides, those drones can be annoying when you're trying to concentrate on drills.

pohill
September 16, 2013, 10:03 AM
If there is a law against open carry, and you open carry a weapon (BP revolver) that has been deemed a non-firearm, you're still putting the cop in a bad situation. He has probable cause to stop the person with the gun and ascertain what kind of a weapon it is. If he is unfamiliar with BP revolvers (I don't know too many cops who are knowledgeable about BP revolvers simply because they don't deal with them on a regular basis or not at all), then he can make the arrest, and when and if the gun is deemed a non-firearm, and the arrestee has not added to the problem with his actions, then most likely the charges will be dropped. But the cop was covered due to probable cause ("more than a hunch but not necessarily enough to convict"). It's like pulling a car over that has been weaving and whatever - let the breathalyzer at the station make the real determination on whether or not the driver is drunk, as opposed to letting the driver drive away and potentially killing someone down the road.
There are ways to change laws - I don't think this is a good way to do it. As of now, BP revolvers are classified in an advantageous way for owners (non firearms)- why push our luck.

BullSlinger
September 16, 2013, 12:43 PM
Reading this thread for past couple of days and really wonder if these guys are trying to change open carry laws or get settlement money for wrongful arrest?
In New Mexico we can open carry what we want when we want ( a few exceptions ). I do not have a CCL for the reason if I need to pack I can. Openly that is.
I would not put my self in a situation to be arrested as these gentleman did. If additional charges come up in the process of being arrested and turn out to be a Felony.... Wont have to worry about legally buying a firearm again.
Cops have a hard enough job as it is and I am quite sure that in their training not a lot of time is spent on black powder pre 1898 and replicas of such. If I were a LEO I would lock ya up now and let the DA worry abut if I got the details correct. (better to lock up a nut than have another shooting)
If Texans feel they need to change the open carry laws in their state then by all means do so. I just don't agree with the way these guys are going about it.

Patocazador
September 16, 2013, 02:35 PM
If cops have insufficient knowledge concerning BP guns, they should rectify that deficiency rather than arrest people for a "perceived crime".

It should be a source of pride for every LEO to know as much about the law as he possibly can. The Buford T. Justice days need to go into the history books.

pohill
September 16, 2013, 03:09 PM
Are you serious? What, every cop should take classes on IDing black powder revolvers and antique guns on the spot? Never mind the domestic abuse laws, drug laws, motor vehicle laws, MODERN firearm laws, etc, etc. If the law says "no open carry", and you want to make a statement by open carrying a black power revolver - for whatever stupid reason you might have - do it, but I can almost guarantee that you will be arrested (even if the charges are eventually dropped). Black powder revolver owners get their undies in a bind when someone calls their guns "toys". They're not toys, they say, they're REAL guns that killed 600,000 people during the Civil War. But get caught open carrying a BP revolver and suddenly it's a non-firearm. Which is it?
Look ahead to a trial. "This is what the defendant was carrying (holds up a Ruger Old Army).
Then, "This is what the officer thought it might be." (holds up a Blackhawk). Then look at the faces of the jury.
Perceived crime? Never heard of it. I have heard of Probable Cause.

swathdiver
September 16, 2013, 03:54 PM
Cops around here used to keep the state statutes book in their trunk. When in doubt, look it up! It's not that hard folks. If it is, call your supervisor.

FYI: A Ruger Old Army and 1851 Navy for example are "antique firearms". They are not "firearms" nor are they "deadly weapons" under Federal Law (and Florida). There are no prohibitions against open or concealed carry of these but apparently these three have the resources and time to prove it in court.

Sam1911
September 16, 2013, 04:26 PM
You do realize that cops can get in quite a bit of trouble for arresting someone who hasn't committed a crime?

Should a cop take classes and/or be expected to be knowledgeable? Only if he's going to ARREST someone for what he thinks is going on. If not, he shouldn't arrest. Or he should seek more information from his superiors.

There is something ghastly wrong with a society that will accept a "lock 'em up and sort it out later" mentality from its public servants.

pohill
September 16, 2013, 04:51 PM
FYI: A Ruger Old Army and 1851 Navy for example are "antique firearms". They are not "firearms" nor are they "deadly weapons
FYI, I was making a point of comparing a Ruger Old Army and a Ruger Blackhawk, on the spot and trying to determine which is a firearm and which is not, immediately, with a cameraman calling you a Nazi. What good would a statute book do you if you don't know if it's a modern or antique firearm?
Shoot someone with a ROA or an 1851 Navy and see what kind of weapon they are, especially if the person dies.

You do realize that cops can get in quite a bit of trouble for arresting someone who hasn't committed a crime?
Really? Give me an example. OJ?

Again, as far as arresting someone and then letting them go - what about the cop who places a suspected drunk driver in custody based on a field test, then that same driver passes the breathalyzer and is let go? Probable cause - look it up.

Sam1911
September 16, 2013, 05:01 PM
Really? Give me an example. OJ?

Again, as far as arresting someone and then letting them go - what about the cop who places a suspected drunk driver in custody based on a field test, then that same driver passes the breathalyzer and is let go? Probable cause - look it up.I understand probable cause. I also understand that people who are hassled and/or arrested for open carry when what they were doing was technically lawful are making big wins.

http://www.bellinghamherald.com/2013/08/15/3149688/open-carrying-army-veteran-gets.html

http://www.examiner.com/article/alamogordo-police-pay-21-000-to-settle-open-carry-lawsuit

http://woodstockadvocate.blogspot.com/2011/10/2-year-old-wisconsin-open-carry-case.html

http://www.thedailypage.com/daily/article.php?article=35497

http://www.saysuncle.com/2008/07/22/open-carry-case-settled/

There's no shortage of these cases. Unfortunately it isn't always the officers themselves who take the brunt of the punishment, as their departments indemnify them. However, that works out well too, as departments have deeper pockets which works out even better for those working for change.

allaroundhunter
September 16, 2013, 05:06 PM
typical texas state trooper

Of all the encounters that I have had with law enforcement in Texas, mine with state police has been the most positive. The fact that it had the potential to also be the worst makes me further appreciate their professionalism.

But then again.... My experience wasn't with DPS in Austin...

However, there are some pretty awesome APD guys that I have shot with and still talk to from time to time that would have been much more knowledgeable in this particular scenario.

pohill
September 16, 2013, 05:20 PM
Those cases were settled in civil court - the cops never got "in trouble".
Do I like some of the gun laws we have now? You gotta be kidding - I live in MA.
But I'm also a former cop and I have a pretty good idea of what it's like to have to make a snap judgment and hope it turns out to be the right one.
I'm not for or against open carry - if it's legal, it's your choice. But I see no point in pushing the boundaries of a law for no apparent reason. I like my BP revolvers, I like that I can buy them out of state because they're not considered firearms, but if someone pushes the courts to re-define open carry, and it turns bad and BP firearms are for some crazy reason deemed to be firearms - not good.

Sam1911
September 16, 2013, 05:27 PM
Well, some folks feel that there is a reason to push the boundaries, and one of the great benefits of doing so is (as those cases show) to make police officers and departments take a big step back from hassling law-abiding citizens. You seem to be saying, "don't make waves, maybe they'll leave us alone." That's rarely turned out well, nor been a path for positive change.

You've got your reasons for keeping your head down and not wanting to rock the boat, but those reasons aren't any more (or less) valid than someone else's reason (in another state with very different laws than your own) to work for changes however they think they can.

pohill
September 16, 2013, 05:48 PM
I'm not saying don't rock the boat, and my head is not down - I'm saying bring about change in a better way. The fact is they will not leave us (gun owners) alone, ever. I like the non-firearm status of my BP revolvers - I sure as heck won't protest to be able to wear it on my hip openly when I can't do the same with my Ruger Speed Six. As far as cops hassling law abiding citizens...looks like we're back to the age old spectator sport, Cop Bashing.

Sam1911
September 16, 2013, 05:59 PM
I won't bash cops, and we don't allow it here.

If they arrest someone for doing something that is within the law, they need to be corrected, and their department policies changed to prevent that from happening again.

Usually that's best accomplished at the point of a lawsuit. So, more power to these guys!

Carl N. Brown
September 16, 2013, 06:24 PM
If I carried a black powder revolver as a weapon of defense in public without a handgun carry permit, I expect I would be found in violation of the Tennessee "going armed" statute, and arguing a BP revolver or pre-1898 antique is not a Federal Title I Firearm under the 1968 Gun Control Act would not impress anyone in the police or court system, since intent to carry as a weapon makes it a weapon.

Sam1911
September 16, 2013, 06:25 PM
Right, which is why I asked the question I did about how the statute is worded IN TEXAS where these guys are.

They don't have that problem.

RandyRay41
September 16, 2013, 07:04 PM
As of now BP, antique, relic, etc. guns are not in the spot light. I don't believe bringing them to the spot light is going to solve anything. I see no reason to draw attention to something that needs no attention. If the anti gun people get it in their head that BP guns need regulating it could be very bad for us. Especially since BP is considered an explosive and is easily acquired.

I understand the theory behind making a point but is a point necessary in this instance? I think not. Sure is nice to be able to purchase and own such guns without the government sticking their nose in anyone's business. We will see what this case will mean for the future of BP.

Jenrick
September 16, 2013, 07:15 PM
I don't disagree with the folks above who say officers should "look it up" or be knowledgeable of the law in and of itself. However it's a rather esoteric point of law that isn't dealt with often, and to expect every officer to be familiar with it is reaching a bit. I think if the protesters had taken the time to print out the relevant sections of the Texas Penal code and provided it to the Troopers they probably wouldn't have been arrested. I haven't watched the videos, but it sounds like several of them pushed the issue.

Additionally while BP guns aren't considered firearms under the Texas Penal Code, they could (if a DA pushed the issue) possibly be considered a zip gun:

46.01(16) "Zip gun" means a device or combination of devices that was not originally a firearm and is adapted to expel a projectile through a smooth-bore or rifled-bore barrel by using the energy generated by an explosion or burning substance.

Now this depends on the reading of the "firearm" definition above, but with a permissive judge it would certainly be possible to argue it. Possession of a zip gun is ironically a 3rd degree felony, rather then a class A misdemeanor for carrying a firearm where/when you shouldn't.

-Jenrick

Patocazador
September 16, 2013, 07:20 PM
But I see no point in pushing the boundaries of a law for no apparent reason.

Martin Luther King would have had a big problem with that attitude.

BullSlinger
September 16, 2013, 07:21 PM
Randy, I agree with you. I have no idea why these gentlemen decided to make a point of something like this. If they want open carry in TX they should get with the state law makers. I am afraid they may end up with BP guns being considered as firearms (look at the restrictions on a Caballas bp order for some states, NY, MA, IL, CA, HI...)
Today another nut went loose in DC with an AR15. The antis want our guns taken away so here is one more log on the fire for them. Guy was a Navy Vet. I fear for my 2nd Amd. rights.

ArmedOkie
September 16, 2013, 07:24 PM
It took some stones for those cops to arrest those guys. Cops would never try that in my area of Oklahoma. When I walk into a store with my long colt strapped on, cops won't even look me in the face. They act afraid to even say anything and I've never been carded for carrying.

BullSlinger
September 16, 2013, 07:29 PM
I thought you could open carry in OK?

pohill
September 16, 2013, 08:44 PM
Martin Luther King would have had a big problem with that attitude.
Then you should push the boundaries, protest the laws, defy authority, be civilly disobedient, get arrested, go to court, go to the Supreme Court. It is your right.
Dr. King had a good reason to do what he did.

swathdiver
September 16, 2013, 09:57 PM
FYI, I was making a point of comparing a Ruger Old Army and a Ruger Blackhawk, on the spot and trying to determine which is a firearm and which is not, immediately, with a cameraman calling you a Nazi.

If it's pointed at you, you don't have to worry, just draw and fire. However, the good officer could simply ask and with a little bit of reasoning (seeing those percussion caps) realize that it's an antique. If they just acted a little friendlier, and not have the mindset of us versus them then I doubt those men would have been arrested. Having watched the first video, I think it was the officer's pride that kept him from releasing the man. It's a universal truth that pride goeth before the fall.

These guns are a whole lot of fun and I'd hate to see restrictions placed on them because of this.

robhof
September 16, 2013, 10:08 PM
I open carried my ROA in South Fl.(Homestead and the keys) when I went fishing, especially at night and got hassled by the Marine patrol, but when I explained they replied that with a gun I was asking for trouble. My reply was that I was advertising against trouble and had no problems on any of my fishing adventures. A few customs agents wanted to see my gun and thought it was a novel way around state law.

RandyRay41
September 17, 2013, 06:24 AM
. A few customs agents wanted to see my gun and thought it was a novel way around state law.


This is the mindset that concerns me. It is a way around the law. Been a loophole for years and since there has been no high profile mass killings, robberies, etc with a BP gun no one has seen the need to bring up the loophole. But with a lot of publicity such as with this case it will be brought up.

pohill
September 17, 2013, 07:27 AM
If it's pointed at you, you don't have to worry, just draw and fire

Yeah and maybe you could shoot it out of his hands, shoot the buttons off his coat, shoot the hat off his head, shoot his left, or right, earlobe, and have your gun holstered before he knows what happened.

What the heck...if you make a "bad decision", and Mr President deems that you "acted foolishly" in making an arrest, you might be invited to the White House for a beer summit to smooth it all out.

Last April, when Boston was hit with home-made bombs, there was a great deal of concern on this forum, and others, about black powder being brought into the spotlight. Now you want it in the spotlight?

sf46
September 17, 2013, 08:30 AM
While I ceratinly sympathetize with the guys carrying the black powder guns, I think the police can still claim probable cause for reasons stated above about the Ruger Old Army looking just like a Ruger Blackhawk. My question is this: Are all the guys carrying black powder revolvers at Civil War Reenactments in Texas going to get arrested too?

Foto Joe
September 17, 2013, 08:40 AM
I think what some people are missing here is that it is illegal to open carry ANY loaded gun in Texas. You may carry long guns but they must be unloaded. If those BP guns were loaded then they would have been arrested for a whole 'nother reason. They were arrested for "calculated to alarm" in the disorderly conduct statute. If there had not been a protest going on then that charge might stick but since there was a protest or demonstration going to promote open carry in the first place then the "calculated to alarm" thing is a little silly.

I think what we had here was a few protesters that were trying to make a point and a few law enforcement officers who were a little under educated. Once the fun starts then nobody wants to back down therefore the guys with the badges are gonna win. In my estimation both sides should have used a little more reason and less testosterone. Former and present officers on this forum should admit that being a peace officer you are very used to getting your way. Once your authority is challenged then it quickly becomes a control issue that needs to be handled and handled quickly in most instances, especially when there are weapons involved. It's a mindset, and I'm not saying it's bad, but in this particular instance I think it worked against them. From what I saw their handling of the elderly disabled vet was top notch and very professional and I heard no heckling in that video. On the other hand the longer video definitely shows citizens challenging the authority of the officers. Once the name calling starts then you've lost all of your credibility with me I'm afraid.

I've had contact with law enforcement over the years and most of it turned out just fine. I did learn the hard way that mistaking a US Marshall for a rent-a-cop though is a bad idea, those boys really know how to put somebody on the ground FAST!! Luckily for me he had more intelligence than me too and we worked out a mutual agreement, he didn't have to do paperwork and I got to go home that nite instead of jail.

My point to this whole this is as follows: Both parties probably could have handled this differently.

Foto Joe
September 17, 2013, 08:45 AM
@sf46

Re-enactors don't carry on the way to events, if they did they might have to answer some questions. Once at the event they are on private property where there is not a problem.

I wore my Dragoon once when on the bike heading to an outdoor range in Livingston. When I got there the owner asked if I'd had that hog leg on my hip going down the road, I answered in the affirmative. This is when he politely informed this Wyoming boy about the open carry laws in Texas and that I was courting an interview with at the least a constable. On the other hand the 1911 fully loaded in my shoulder holster was perfectly fine.

pohill
September 17, 2013, 08:50 AM
Well said, Foto Joe. The human element, fueled by emotions, is the one factor in any confrontation that can be unpredictable.

Sam1911
September 17, 2013, 11:13 AM
think what some people are missing here is that it is illegal to open carry ANY loaded gun in Texas. You may carry long guns but they must be unloaded. If those BP guns were loaded then they would have been arrested for a whole 'nother reason.

I don't believe you understand the TX law quite the way Jenrick (and others) explained it. Loaded or unloaded a BP firearm is not illegal to open carry in TX.

Here you go again, in case you missed it:

How does that fit with TX law? Are only modern handguns prohibited from open carry, or other weapons as well?

Basically, if you read Chp 46.01.05: ""Handgun" means any firearm that is designed, made, or adapted to be fired with one hand" . 46.01.03: "Firearm" 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. Firearm does not include a firearm that may have, as an integral part, a folding knife blade or other characteristics of weapons made illegal by this chapter and that is:
(A) an antique or curio firearm manufactured before 1899; or
(B) a replica of an antique or curio firearm manufactured before 1899, but only if the replica does not use rim fire or center fire ammunition.

So as we've discussed already a cap and ball black powder replica pistol does not meet the definition of a firearm or a handgun.

Sec. 46.02. UNLAWFUL CARRYING WEAPONS. (a) A person commits an offense if the person intentionally, knowingly, or recklessly carries on or about his or her person a handgun ....

In short you can open carry a black powder pistol, as it's NOT a "handgun" under Texas law. You can open carry a "Firearm" which is NOT a "handgun" so long as you don't do it anywhere the law says you can't. Hence you can legally walk down S. Congress Ave. in front of the capital with a AK/AR/Shotgun/Etc. under this section, while doing so with a holstered unconcealed Raven .22LR is illegal.

rodwha
September 17, 2013, 02:20 PM
"From what I saw their handling of the elderly disabled vet was top notch and very professional and I heard no heckling in that video. On the other hand the longer video definitely shows citizens challenging the authority of the officers. Once the name calling starts then you've lost all of your credibility with me I'm afraid."

Indeed! Once the name calling began it turned me off. There's a right and wrong way to go about things.

Jenrick
September 17, 2013, 08:06 PM
I think what some people are missing here is that it is illegal to open carry ANY loaded gun in Texas. You may carry long guns but they must be unloaded.

Loaded or unloaded doesn't actually make a difference under chp. 46 of the Penal Code for Unlawful Carry, or Possession of a Prohibited weapon. Loaded or unloaded MIGHT make a difference under the Disorderly Conduct statute. An unloaded slung rifle is IMO much less likely to cause alarm as a loaded weapon carried at the ready.

-Jenrick

Jim K
September 17, 2013, 08:18 PM
I know it is hard for some people to grasp, but terms mean different things in different laws. In most states, and to the federal government, some firearms are antiques for sale purposes and can be bought, sold, shipped, etc., without the problems and paperwork of a modern arm.

But for other purposes and in other laws, there is no distinction made between modern and antique firearms. For example, armed robbery with a cap and ball revolver is armed robbery, the same as if the robber used a Glock. Assault with a deadly weapon is ADW whether the weapon is a Model 1836 .54 caliber pistol, or a Model 1911A1 .45 caliber pistol. And carrying a deadly weapon is just that; if it is illegal, then it is illegal no matter whether the weapon is an antique, a reproduction, or a modern design. If THAT law makes no distinction, it doesn't matter what the law on sales says.

So you can absolutely go to jail for committing a crime with an antique "non-gun". And if you do just to make some kind of BS point, I have no sympathy for you.

Jim

Sam1911
September 17, 2013, 08:26 PM
So you can absolutely go to jail for committing a crime with an antique "non-gun".
But, in this case that would be irrelevant as they DIDN'T commit a crime with their antique "non-guns."
And if you do just to make some kind of BS point, I have no sympathy for you. Fortunately, their point doesn't seem to have been some BS 'cause I'm sure they appreciate your sympathy. :D

stressed
September 17, 2013, 08:48 PM
I will be following this. These officers were in the wrong IMO. Hopefully this does go to the supreme court. Sadly, after this laws may be changed in that black powder firearms WILL be reclassified as firearms.

Tinpan58
September 17, 2013, 10:34 PM
Going around carrying a black powder gun which is just as deadly as any other gun and saying I can because it is a non gun is lame, not smart and not responsible. It dose nothing to help preserve the 2nd amendment, it only gives fuel opposition and the news media. So that in a couple of years you can say black powder guns use to be non guns as you take your collection down to be registered. Obama stands up there and says he is only against ar15s, yet he just signed an executive order banning the importation of military guns that are more then 50 years old, the only people interested in those old guns are collectors. That shows that he is against all gun ownership, he just can't stand up their and say so. The 2nd amendment along with the rest of the constitution is dying a slow death in this county. The only way to win is vote these air heads out.

stressed
September 17, 2013, 10:56 PM
To the above, they are considered "NON-GUNS"

There is a memo on the BATFE's own website saying even Felons can be in possession of black powder pistols and their ammunition, and powders to load them in their FAQ area. State laws may vary, and they may also vary on if the weapon is loaded or not.

swathdiver
September 18, 2013, 11:36 AM
See what I mean? The Constitution says, "Shall not be infringed" and so many here have no problem at all with the infringements.

Tinpan58
September 18, 2013, 08:53 PM
Check this out, a tweet today by NRA News:

U.S. history book rewrites Second Amendment

http://rare.us/story/u-s-history-book-rewrites-second-amendment/

You know they don't teach cursive writing in school any more, so the kids won't even be able to read the constitution, they will only have school books and teachers to rely on

YumaKid
September 19, 2013, 12:16 AM
I think this incident should lead the "thinkers" amongst us to a volunteer effort to educate local LEO's in the differences between "...a replica thereof..." and a Ruger Vaquero/Blackhawk and the BATFE's rulings on the matter.

FIRST OF ALL (emphasis deliberately added); one should not adopt an attitude of "Imagonna SCHOOL these tinhorns!" You are attempting to explain some mildly esoteric differences amongst the two. Oh by the way, NOTHING should be loaded and RTF!

(Forgive me, but I see in some of the points made in this thread an attitude of "These guys are supposed to know EVERYTHING!" And the existence of a powder-and-capped Pietta-built Remington NMA in the hands of a civilian that they never met before is something that would rightfully cause "concern" amongst the LEO's in this session)

I'd produce said Remington NMA (because that's what I own) in a completely unloaded condition and compare it to some "standard modern" revolver; say an S&W 629, because that's also what I own and sometimes carry, and explain the differences thereof. Should I somehow manage to add a cartridge conversion cylinder from Taylors (gotta chase a few more spiders out of my wallet without SWMBO noticing), it would also be used in this demonstration.

The point is to make sure they understand that, while it is a "non-firearm", it can be dangerous. Maybe not in the same manner as a .45ACP S&W 625-2 loaded up with BP behind a Winchester SXT -I guess they call it "PDX" now- hollowpoint; but dangerous nonetheless. C'mon, there are many threads about using a cut-down Colt 1860 for personal defense on this page; let them know that it COULD happen.
The idea is to put EVERYTHING out there in a no-holds-barred manner, including that only "BP nuts" like us would think of this stuff; and that WE are sharing with them. If we talk to them about it, maybe invite whomever is interested to the range, they develop an idea that we aren't the typical 'critters' that they are likely to meet on the job. I've always maintained - thanks to my parents' teaching me - that by-and-large the LEO's can be (and would RATHER be) friendly.
Think about it realistically.... how many guys put on a badge just so they can wear a Glock (or whatever, our County S.O. guys are limited to a very few models of 1911A1's) and push people around? Most of the guys and ladies put on their uniforms "To Serve and Protect" in reality. The idea of such a "training" is to help them understand the laws and regulations so that they can, instead of worrying about "that guy", keep the peace for us; which is what they are paid to do.

I'd be more than happy to do this in my own County; but I really don't think it's necessary. Our present County Sheriff - a former Marine who left the Service and decided to stay in our town and take up Law Enforcement (exactly like the now-retired Sheriff before him) - has been known to shoot in SASS matches.
Consequently, I'd bet he knows the drill already, and could make sure "his people" are already informed.

Y'all can keep arguing back-and-forth about this if you want. But I'm thinking that doing something positive about the issue seems to be more useful; and can only help us in the long run.

As an aside, all I can say is that "Texas is weird"! You can carry concealed, but not open???? As long as the lead isn't already flyin;' I'd think the guys in the uniforms would like to know "Who has what and what are they gonna do with it?" just as much as anybody. Maybe it's just me.
I live in a state where my old CCW permit is no longer worth all that much; ANYBODY (as long as they can legally own a firearm) can conceal a firearm on their person and walk around like the guy taking his wife's Poodle to the veterinarian, as long as the vet hasn't posted a sign prohibiting weapons.

Arizona has "Out-Texas'd TEXAS"???? WOW! :eek:

chrisTx
September 19, 2013, 02:11 AM
I think the D.O. will stick, but it would be interesting to see the appeals court give some sort of an opinion on it. In Texas v. Johnson, symbolic free speech can be applied in cases where the activity is against the law, but carried out under the first amendment.

swathdiver
September 19, 2013, 06:43 AM
I'd produce said Remington NMA (because that's what I own) ...while it is a "non-firearm", it can be dangerous. Maybe not in the same manner as a .45ACP S&W 625-2 loaded up with BP behind a Winchester SXT -I guess they call it "PDX" now- hollowpoint; but dangerous nonetheless.

Put Swiss or Olde Eynsford behind a soft lead round ball or Kaido Conical and one has a more dangerous load compared to the Winchester .45 round. :)

pohill
September 19, 2013, 07:43 AM
If anyone feels the need to protest so you can open carry your ROA but not your Blackhawk, knock yourself out - like I said, it's your right. Bring all the attention you want to your BP revolvers. As was stated, it is basically a loophole in the law that these weapons are not classified as firearm. I like that fact. Just keep in mind, if Obama Care is fully implemented, everything will change. Talk to your doctor about the questions they will ask, and the info they will report, concerning your firearms as mandated by the ACA (Affordable Care Act). I do not belong to the NRA but I must admit I am impressed at their efforts to negate that part of the ACA and I most likely will join real soon.
Keep bringing attention to your BP revolvers, and when they introduce bills to require liability insurance for your guns, see where BP revolvers fall in that law.
I am not hiding my head in the sand, I am not afraid to rock the boat - I am a realist. If Obama can block the import of old military weapons, and no one is blinking, watch out...

BullSlinger
September 19, 2013, 12:57 PM
Good points Pohill.

elhombreconnonombre
September 19, 2013, 01:09 PM
I have been researching all the questions your doctor
has to ask you under OBcare. Since I only own c&b repros and
relics I can truthfully tell my doc: no Sir I categorically
do not own a firearm, nor drink, nor smoke, nor
nor dip, nor chaw, nor sniff.
When I go to local gun shows here in Texas I always take a few
cb revolvers to sell/trade. Sometimes I stick them in holsters or in my belt or carry
them openly from the parking lot into the venue. When
I check in with LOE, they put the zip ties on them, then I reholster
them and walk right into the show to enjoy some trading. The LEO guys at the desk and those cruising
the show dont give me a second look or ask me anything, then
again I am at a GUN show. Perhaps I should carry them into the show in a laptop
bag just to be safe in the parking lot. Although I am not an open carry protester I do carry laminated card
with the pertinent Federal and Texas laws concerning cb items.
BTW, how can dealers at gunshows sell prohibited items like Bowie
Knives and tomahawks? I know a fellow was charged when a game warden found
a Bowie in his tacklebox. Just wondering.

swathdiver
September 20, 2013, 01:13 AM
Check this out, a tweet today by NRA News:

U.S. history book rewrites Second Amendment

http://rare.us/story/u-s-history-book-rewrites-second-amendment/

You know they don't teach cursive writing in school any more, so the kids won't even be able to read the constitution, they will only have school books and teachers to rely on

Maybe not in government schools but in our church's academy the kindergartner's start off writing in cursive.

Jenrick
September 20, 2013, 03:21 AM
BTW, how can dealers at gunshows sell prohibited items like Bowie
Knives and tomahawks? I know a fellow was charged when a game warden found
a Bowie in his tacklebox. Just wondering.

Short version is that 46.02 (UCW which is where illegal knives, tomahawks, etc. are discussed) doesn't apply if you're on your own premise or direct route to or from your vehicle. The dealer is obviously on their own premise, or on the premise with the express permission of the owner. The items themselves aren't illegal to own or sell, you just can't take them for a walk out in public. So depending on where said tackle box was, that might have been part of the issue.

-Jenrick

elhombreconnonombre
September 20, 2013, 09:22 AM
The tackle Box was in bed of his truck. I guess the leo was looking to see if he had drugs which he did not so he had no problem with a vehicle search. He told the officer that the knife was for cleaning fish. The leo didnt buy it nor did the judge.

Sam1911
September 20, 2013, 10:29 AM
The tackle Box was in bed of his truck. I guess the leo was looking to see if he had drugs which he did not so he had no problem with a vehicle search.

LOL! He THOUGHT he had no problem with a vehicle search. Which perfectly illustrates why we tell people over and over, you DON'T, EVER, consent to a search. If they have probable cause, they'll search without your consent. If you consent because you're a good person with "nothing to hide," whatever they might happen to find could screw up your life in a big way.

Playing cooperative with "Officer Friendly" is never, EVER, in your best interest.

Carl N. Brown
September 20, 2013, 11:13 AM
I can have brass knuckles, bowie knife or switchblade in my home as a curio, ornament, keepsake, collectible. On the street, they become "prohibited weapons".

elhombreconnonombre
September 20, 2013, 11:21 AM
Indeed. Btw given the press the Texas open carry group has generated by their deliberate
and calculated confrontation with capital dps bike police to get the result they were looking for, I am going to take my cb items into the next
gs in a bag, have the leos inspect/zip tie them, tell them I am looking to trade or sell, and ask them if they have any problems with me holstering up or sticking them in my belt to wander through the crowd.

pohill
September 20, 2013, 11:42 AM
As a responsible knife owner, he should have known the laws. The Game Warden did.
With that in mind, would a local cop or sheriff (not a game warden) in that area even have bothered with that knife? The guy was fishing, not carrying it downtown.

Sam1911
September 20, 2013, 11:50 AM
As a responsible knife owner, he should have known the laws.Right! He was un-responsible for not knowing that detail of the law! Hang him. He deserves it!

I guess that is a good argument for letting officers search at their request. That way if you've broken the law inadvertently you can get the punishment you deserve. Sounds good to me!

pohill
September 20, 2013, 12:36 PM
I don't think hanging is one of the punishment options for that crime. And, whether he broke the law inadvertently or knowingly, he still broke the law. If you say that cops should know the laws pertaining to antique/repro revolvers, then a fisherman should know the law pertaining to knives. Maybe he should have carried a statue book in his trunk.
My point is that cops have discretion. Many times motorcyclists would ride into my state without a helmet (from a state that did not require them). I would simply point to my head and they'd get the point, pull over and don a helmet.
I don't know many, if any, cops that would have prosecuted a fisherman for the knife he had in his tackle box. Environmental Police are a different story. I was just trying to get an idea of the mindset of the local cops vs the game wardens.

elhombreconnonombre
September 20, 2013, 03:34 PM
Carl :
Interestingly enough, the Tx Leg has exempted single edged automatic knives/ switchblades via the Kniferights group, and its supporters in the Leg. Gov. Perry signed it into law and became effective Sept 1 I believe. That was the only change to prohibited
items. They still have length restrictions per state and many times
local regs.

swathdiver
September 20, 2013, 03:56 PM
LOL! He THOUGHT he had no problem with a vehicle search. Which perfectly illustrates why we tell people over and over, you DON'T, EVER, consent to a search.

Playing cooperative with "Officer Friendly" is never, EVER, in your best interest.

If an officer wants to go fishing, hand him a rod and don't give him permission to troll around your belongings or YOU will be his catch of the day!

Berkley
September 20, 2013, 06:55 PM
A Bowie knife is an "illegal knife", which is unlawful under Texas Penal Code 46.02 only if it is being carried "on or about the person".
A Bowie knife is not a "prohibited weapon" under Penal Code 46.05, which is illegal if the person intentionally or knowingly “possesses, manufactures, transports, repairs, or sells” it.
"On or about the person" has been defined by case law to mean "near by, close at hand, convenient of access, and within such distance of the party so having it as that such party could without materially changing his position get his hand on it.” Franklin v. State, 183 S.W.2d 573 (Tex. Crim. App. 1944) .
An illegal knife inside a tackle box in the bed of a truck is not on or about the person for purposes of a prosecution for "Unlawfully Carrying a Weapon" in Texas.

MedWheeler
October 7, 2013, 04:24 PM
I read the replies on pages one, two, and four, of this thread when I found it (I was steered to it by a newer, now-closed, thread on the same case.) In the first two pages, it sounds like we're hashing out the definition of a firearm per Texas law, when no actual firearms charges were listed in the original article (the charges, as I saw them, were "disorderly conduct with intent to raise alarm.") I'll reserve opinion on the actual arrests and their just cause until I've heard more about the case.
Going by page four of this thread, I would have thought, had I not read the first two, that this was a knife-arrest thread.

calaverasslim
October 7, 2013, 11:21 PM
SAM1911: Where do we stand on this case now? Is there anyway we can be updated?

Berkley
October 8, 2013, 12:00 AM
Travis County, Texas, criminal docket settings are online at http://www.co.travis.tx.us/courts/files/dockets/ . A search by defendants' names shows Terry Louis Holcomb has an announcement setting in County Court-at-Law No. 8 at 8:30 on 10/11/13; Scott Douglas Smith has a pretrial conference setting in County Court-at-Law No. 3 at the same time and date. Each is represented by a different attorney. There is no listing for a Gary Hayes.

JohnKSa
October 8, 2013, 01:41 AM
I think what some people are missing here is that it is illegal to open carry ANY loaded gun in Texas. You may carry long guns but they must be unloaded.I once did a search of the TX penal code, and as nearly as I can determine, it does not differentiate AT ALL between loaded and unloaded firearms.

There are some regulations in the Game/Hunting laws that differentiate between loaded and unloaded guns, but those shouldn't come into play unless there's something in the context of the situation that would bring the Game/Hunting laws into the mix.

There is at least one municipality (San Antonio) that regulates the carry of long guns. I am not familiar with the specific details of that law so I can't say if it differentiates between loaded/unloaded. That ordinance, if challenged, would probably be overturned due to the state pre-emption law. But so far it still stands.An illegal knife inside a tackle box in the bed of a truck is not on or about the person for purposes of a prosecution for "Unlawfully Carrying a Weapon" in Texas.It would be if the person were in or within reach of the bed of the truck. It would not be if the person were in the cab of the truck....no actual firearms charges were listed in the original article (the charges, as I saw them, were "disorderly conduct with intent to raise alarm.")...If it is upheld, it will set a precedent, assuming one isn't already in place. That will mean that it will effectively become illegal to openly carry blackpowder pistols--not because they are restricted but because now there's a precedent that carrying them openly is "disorderly conduct with intent to raise alarm".

One thing I've noticed is that people often do this sort of thing to push the boundaries without really considering all the possible outcomes. Often they seem to be intentionally and determinedly oblivious (i.e. continue to pretend it can't happen even when advised otherwise) to the possibilty that the outcome could be a permanent restriction that didn't exist before.

deadin
October 8, 2013, 09:55 AM
I agree with JohnKSa on this one. Looks to me like they were playing with semantics and found a possible loophole in the firearms code. Unfortunately they aren't being charged under the firearms laws.
I feel they may have hung their hat on the wrong peg....

Willie Sutton
October 8, 2013, 10:47 AM
^^ Being an idiot is a surefire way to make things worse for us all. Witness the fact that idiots in California "excercised their rights to open carry" in inappropriate places and now the predictable result is that open carry is illegal.... even in the remote Mojave desert.

Anyone who plays semantics and tries to make political statements with black powder arms is someone who is going to ruin BP shooting for us all. Drawing attention to the relative lack of law on the subject is a great way to get new laws passed. A stroke of a pen would be all it would take to have anything made as a replica considered a firearm. Remember that the federal definition is enshrined in a BATFE regulation, not a law, and that regulations can be changed VERY simply. In state law it can be changed with ease.


These people are most definately not friends of our hobby.


Willie

.

BullSlinger
October 8, 2013, 10:14 PM
Well said Willie.

RandyRay41
October 8, 2013, 10:22 PM
I second that. Well said!!!

deadin
October 10, 2013, 02:17 PM
Apparently Carrying a "Non-Gun" In Texas WILL Get You Arrested!!
I imagine so would wearing a goalie mask and carrying a chainsaw...:eek:

BobTheTomato
October 13, 2013, 06:52 PM
Ah I always love how when people start a tread about what states have the best bun laws people line up to jump up and down and scream TEXAS!!!!!!! This should be a reminder that it isn't all that great.

goon
October 14, 2013, 12:44 PM
Ah I always love how when people start a tread about what states have the best bun laws people line up to jump up and down and scream TEXAS!!!!!!! This should be a reminder that it isn't all that great.

Or at least that it is in the middle of the road at best. From what I've been reading, Vermont actually has better gun laws than Texas. Yep, Vermont... right up there in New England.

I have a friend who is a Texas native. She's fiercely pro-gun, but also points out that Texas locks up more people than any other state... too many people in her opinion (she works in the criminal justice field). In her opinion, Texas is very heavy-handed and the case with the guy who got arrested for a knife in the tackle box is a good example of that. As long as he's not swinging it at anyone or throwing it at people passing by, who cares what he's got in his tackle box? Why is that even a law?

rodwha
October 14, 2013, 01:59 PM
There's a saying here in Texas:
Show up on vacation, leave on probation.

JohnKSa
October 15, 2013, 12:50 AM
From what I've been reading, Vermont actually has better gun laws than Texas. Yep, Vermont... right up there in New England.That's probably true, but a little misleading. Surprisingly, Vermont actually has better gun laws than all but a few states. It may be located in New England, but you can't tell from its gun laws.

goon
October 15, 2013, 01:20 AM
That's probably true, but a little misleading. Surprisingly, Vermont actually has better gun laws than all but a few states. It may be located in New England, but you can't tell from its gun laws.

From what I've read, NH and ME have pretty good gun laws too.
But it's also deceptive to just assume that since it's Texas, the gun laws must be the best imaginable.
Having said that, still a site better than a great many states.

JohnKSa
October 15, 2013, 01:32 AM
But it's also deceptive to just assume that since it's Texas, the gun laws must be the best imaginable.True enough.

After the Civil War, a number of very restrictive handgun laws were passed to prevent freed slaves from carrying. As time passed, selective enforcement gradually became impossible, and the result was that the laws made it nearly impossible for anyone to legally carry handguns off one's own property.

It wasn't until 1995 that began to change.

goon
October 15, 2013, 01:43 PM
It wasn't until 1995 that began to change.

After the mass shooting at Luby's Cafe?
One thing I'll say for Texans... at least they're smart enough to know what doesn't work (like gun-free zones) and take steps to change it.

elhombreconnonombre
October 15, 2013, 04:02 PM
I didn't see anything in the local Austin print or TV news what happened at the two court hearings last Friday for the guys that were arrested at the Capital last month with their BP hand arms, but it looks like the Texas Open Carry supporters are at it gathering this weekend at the Alamo with several candidates for state office in attendance/speaking. They are telling folks that only longarms are acceptable for this gathering.

Deltaboy
October 15, 2013, 10:50 PM
Sad We been down there for Civil War events and had black powder guns and full sized Bowie knives and DPS was real nice.

JohnKSa
October 16, 2013, 02:10 AM
Texas Open Carry supporters are at it gathering this weekend at the Alamo with several candidates for state office in attendance/speaking. They are telling folks that only longarms are acceptable for this gathering.They may be in for an unpleasant surprise. San Antonio has a city ordinance that makes the open carry of longarms illegal in at least some circumstances.

I don't believe the ordinance is legal under the state pre-emption law, but it hasn't been challenged yet, as far as I know.After the mass shooting at Luby's Cafe?That was the catalyst.

Trent
October 20, 2013, 12:04 AM
Ironic perhaps, John, you posted that on the anniversary date of the Luby massacre.

(Was just sending a colleague a link to the wikipedia entry on it, we were debating the lack of merits of "why he probably won't carry 90% of the time" once he gets CCW license.)

http://en.wikipedia.org/wiki/Luby's_massacre

elhombreconnonombre
October 20, 2013, 02:15 AM
Despite the local SA regs, local law enforcemement did not
intervene at the rally.

JohnKSa
October 20, 2013, 02:41 AM
Ironic perhaps, John, you posted that on the anniversary date of the Luby massacre.Interesting--it was the day after his birthday. Guess he didn't have a good birthday...Despite the local SA regs, local law enforcemement did not intervene at the rally.

I'm happy to hear that and also disappointed.

Happy because it probably means that SA knows their city ordinance won't survive a challenge, disappointed because by not enforcing the ordinance at the rally, they successfully prevented it from being challenged in a context where it would almost certainly be struck down.

Lawdawg45
October 21, 2013, 05:51 AM
You do realize that cops can get in quite a bit of trouble for arresting someone who hasn't committed a crime?

Should a cop take classes and/or be expected to be knowledgeable? Only if he's going to ARREST someone for what he thinks is going on. If not, he shouldn't arrest. Or he should seek more information from his superiors.

There is something ghastly wrong with a society that will accept a "lock 'em up and sort it out later" mentality from its public servants.

I can't speak for your state, but here in Indiana the officer detains the person with a "custodial arrest" and files a Probable Cause Affidavit, then the County Prosecutor decides on filing the charge or not. People are frequently released either for a lack of evidence or a lack of spine on the Prosecutors behalf, usually not ending in litigation. It's a shame these pseudo activists believe their arrest is the only way to affect change in state law.

As to your second comment about Officers taking classes or being knowledgeable, to what extent do they need to trained? Must they know the difference between a legal 1898 firearm compared to one made 2 years later which is illegal? Must they be able to distinguish a 101 decibel noise level from one acceptable at 95 decibels? How about window tinting percentages, must they able to recognize an illegal 34% verses a legal 33%? The Supreme Court has offered numerous judicial opinions on these matters and have concluded that the Officer in most situations does not need to be an expert to make an arrest. The long and short of this scenario was that a group of activists wanted attention, and that's exactly what they got.
LD

elhombreconnonombre
October 28, 2013, 08:41 AM
Two protesters got arrested by the DPS again at the capital in Austin
yesterday for open carrying c&b revolvers. This time they were
reportedly arrested for trespass at the capital, as opposed to a different charge last month. It is not very clear what the result of the last court hearing was from the capital arrests last month.

This group does have the support if some state officials, re: their rally at the Alamo
a couple of weeks ago.

Kennydale
October 28, 2013, 10:33 AM
The person with knife in the table box was a high school student who was unlucky enough report to the school, he had forgot to remove it.

theotherwaldo
October 29, 2013, 10:08 PM
Y'all are making it tough for me. I'm in the process of applying for a job in the city of Austin.:uhoh:

elhombreconnonombre
October 31, 2013, 08:51 AM
Dont you worry about that. Come on down. Despite movie myths to the contrary, Texas has had restrictive carry laws since the 1870s. Regarding these latest protests/arrests, charges were for criminal trespass, not disorderly conduct with calculation of alarm or some such thing like the arrests in Sept.

thralldad
October 31, 2013, 01:12 PM
Odd thing is the DPS officers arrested some other guys for the same thing at the same location a few weeks prior. The D.A. dropped the charges but the BP pistols were not returned (yet).

elhombreconnonombre
October 31, 2013, 03:01 PM
I believe these were the SAME guys.

Deltaboy
November 16, 2013, 10:22 PM
@sf46

Re-enactors don't carry on the way to events, if they did they might have to answer some questions. Once at the event they are on private property where there is not a problem.

I wore my Dragoon once when on the bike heading to an outdoor range in Livingston. When I got there the owner asked if I'd had that hog leg on my hip going down the road, I answered in the affirmative. This is when he politely informed this Wyoming boy about the open carry laws in Texas and that I was courting an interview with at the least a constable. On the other hand the 1911 fully loaded in my shoulder holster was perfectly fine.
Sorry I have carried my BP Pistol and Bowie in Butternutt Uniform and I questioned one time. The sarge got up told the rookie to set back down and eat , told me sorry an and asked where I was renacting at.
As for this case IMO the Police should have exercise their power to check it out and just walk away. This is a case made cause the Law wanted to push their power to arrest anybody for anything. I hope the Police pay for this.

elhombreconnonombre
November 16, 2013, 11:49 PM
As I recall the open carry supporters with the cb revolvers this latest incident were asked to leave the state capital grounds by the dps leos and refused, thus the arrest and charge of criminal trespass. I believe the charges were dropped for the previous open carry protest.
The trespass charges will likely be dropped as well IMHO since the capital grounds are used for free speech activities and protests all the time.

rodwha
November 17, 2013, 08:25 AM
I've yet to see anything further about this. Is it posted somewhere?

Lawdawg45
November 23, 2013, 09:08 AM
Perhaps we could pursue an intelligent way to rally change of state laws, since we have decades of failure to look upon from the college crowd and their sit in protests. Nothing, I repeat nothing was changed by their activity, and the continual arrests of these men only harms our public opinion and perception.

LD

Tcruse
November 23, 2013, 02:47 PM
My state rep responded that hearings on the subject were planed and that "review of the officers conduct" is in progress by DPS. So, generally our reps are in favor of changing TX law to allow open carry. This might be something to further that movement.

Mike1234567
November 23, 2013, 02:54 PM
My state rep responded that hearings on the subject were planed and that "review of the officers conduct" is in progress by DPS. So, generally our reps are in favor of changing TX law to allow open carry. This might be something to further that movement.
Any links??

Tcruse
November 23, 2013, 03:00 PM
"One thing I've noticed is that people often do this sort of thing to push the boundaries without really considering all the possible outcomes. Often they seem to be intentionally and determinedly oblivious (i.e. continue to pretend it can't happen even when advised otherwise) to the possibilty that the outcome could be a permanent restriction that didn't exist before. " agreed, however, unless the understanding is clear to all parties, you have an environment that is worse than a permanent restriction, allowing the law to be selectively enforced.
"A permanent restriction" may very well get enough press that the legislators would take action to change the law.

JohnKSa
November 23, 2013, 09:23 PM
So, generally our reps are in favor of changing TX law to allow open carry.I've talked with one TSRA employee and another person who does works closely with TSRA and they both indicate that there isn't much support from the membership to push for open carry and that's why they haven't pursued it.

It would surprise me to find that there's more support in the legislature than there is amongst the TSRA membership."A permanent restriction" may very well get enough press that the legislators would take action to change the law.It might, or it might not. It could rally enough support from the TSRA membership to mobilize TSRA support for the law, or it might not. Given the information I've gotten from the TSRA, I wouldn't bet on a positive outcome. From what I have gathered, there isn't much mainstream support for open carry in TX. And I'm talking mainstream gun owners, not mainstream general population.

The other bit of information I've gathered is that there is a significantly different perception of reality between the open carry supporters in TX and the rest of gun owners. The OC supporters seem to be solidly convinced that they have a lot of support from the gun community and are "doing god's work" while the more mainstream gunowners in TX tend to see them as fanatics and, in my experience, often voice the opinion that they are hurting the overall cause of gun rights.

That's why I'm not at all optimistic that pushing the issue right now would have a positive outcome.

Mike1234567
November 24, 2013, 12:11 PM
FWIW, if OC was legal in TX I wouldn't do it because I'd rather keep bad guys guessing. However, I DO want OC to be legal if I so choose. That stated, I still need to get my CHL.

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