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

[Foto Joe]

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/201...hy-pro-gun-group-claims-arrests-were-illegal/

 

[Sam1911]

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]

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]

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]

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]

See how educational the Internet can be? I never would have guessed that Texas doesn't have open carry.

 

[Jenrick]

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]

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]

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]

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]

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]

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]

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]

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]

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]

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]

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]

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]

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.

 

[pohill]

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]

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]

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]

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]

What Pohil said Plus

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]

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.