Thursday, October 25, 2007

It's the end of the world as we know it, and I feel fine: New gun law won't unleash new crime wave

Glenna Whitley at the Dallas Observer blames a study I authored, in part, for helping pass a new law allowing law abiding citizens to carry a gun in their car. She writes that the law passed with "hardly anyone noticing."

Hmmm. Where was she? I was interviewed about the bill by media all over the state during session, and it was even covered in the New York Times.

I know where Whitley picked up this meme, anyway. Anonymous Dallas officers in the article told her the new law forces them to let drug dealers drive around with guns and that nobody knew about the bill during the Legislative process:
"It's insane," says one Dallas officer, who asked not to be named. "They basically destroyed the concealed gun law. We're letting drug dealers with Glocks under the seat go and say have a nice day. In the past we could have charged them at least with a weapons violation and confiscated the gun. Texas is wide open now. It's a huge story. This has just gone under everyone's radar."
That's just not true. The new law specifically says drivers can be charged if they're committing any other crime besides a traffic offense. Convicted felons or others legally barred from gun ownership can still be arrested for carrying a firearm in their vehicle. Also, gang members can't carry guns under the law. If Dallas police are letting drug dealers with Glocks get away, they're not doing their job.

Though I authored the study Whitley referenced, I wasn't contacted about the story and I can't tell if she spoke to anyone who supported the new law - but the story is full of law enforcement critics complaining about having to respect the rights of legal gun owners.

The truth is, the Legislature knew exactly what they were passing with HB 1815, so much so that they essentially passed the same bill - or two different ways to get at the same result - two sessions running, in 2005 and 2007. The current Texas Legislature supports legal gun owners rights, even if law enforcement or DAs don't.

11 comments:

Matt said...

I dont't know but what citzens do DPD think are drug dealers, just beacuse they have a gun in the car. Is it because they once were arrested for possesion, they take advantge of their second amendment right. Perhaps most likely its because they fit one of the cops sterotypes. On a diffrent note, does anyone know why Hays county DA requires a court order to release a police report?

Glen Graham said...

Texas has good law abiding citizens such as businessmen and women, farmers, cowboys & native Americans, and just plain ordinary folk who should be allowed to "lawfully" have a firearm in their car as long as they are not violating the law and are not convicted felons and are not commiting a gang crime or some criminal act. I thought the new law excludes convicted felons, people on the gang register, and people committing crimes? Is this correct? I have had numerous clients in Oklahoma who have little protection under Oklahoma law because they have less protection than in Texas. Ordinary law abiding citizens who want to protect themselves against criminals who end up getting a day or two in jail because they did not have a law protecting their right to transport a gun in their car. Texas is ahead of us in Oklahoma in this regard but we have just as many cowboys and more native Americans and a better football team too.

Anonymous said...

I just heard dialog in a TV show.

"Oh! There's a man with a gun."

"Don't worry, it's not a policeman!"

Police in Dallas are paid to enforce the law. Of course they have to understand it first.

Thanks for the clarification.

Anonymous said...

Grits, will you post a response to this by giving us a cite to the Texas Penal Code provisions? Or to whatever the statute is that is at issue. Thanks

Gritsforbreakfast said...

If you click on the link that says 'the New York Time' it takes you to a Grits post with links to lots of background. The report she's referencing is here.

Gritsforbreakfast said...

Here's the bill language as it passed.

Todd said...

I have to disagree with you on this. The new law will allow criminals to carry guns without being arrested. I know that convicted felons are not allowed to carry but it is very hard for a patrol officer to receive conviction information in the field.

NCIC/TCIC information can't be transmitted over wireless networks due to concerns about security. This means the officer has to find a hard phone line to call their dispatch in order to get the information. This is not very practical when you are on a traffic stop on the highway.

Also, while gang members aren't allowed to carry, how do you identify a gang member? You are assuming that the police have some instant way of telling. There are actually strict criteria that has to be used before someone can be classified as such. Once again, this isn't something that can be done quickly.

I think that requiring a permit to carry around a gun is reasonable. The person has to pass a background check and there is more time to determine their status.

This new law just makes things more dangerous out there.

W. W Woodward said...

Well, here I go again,

The offense of Unlawfully Carrying Weapons TCP § 46.02 (UCW) remained the same for decades and read as follows up until the 80th Leg Session 0f 2007.

Texas Penal Code

§ 46.02. UNLAWFUL CARRYING WEAPONS.

(a) A person commits an offense if he intentionally, knowingly, or recklessly carries on
or about his person a handgun, illegal knife, or club.

+++++++++++++++++++
Subsections (b) & (c) dealt with the degree of the offense, depending upon the location where the offense occurred.

Up until the 79th Leg Session of 2005 § 46.15 stated that the offense of UCW did not apply to a person who was traveling. The penal code never defined “traveling”. Several county and district courts determined over the years that “traveling” could be varying distances. Generally, the latest court definitions required that the distance should be at least far enough to require an overnight stay before returning home. When a trip away from home was made by horseback or mule drawn wagon a trip of 20 miles would probably be considered “traveling”. One could “travel” and never leave his home county. Today, a 20 mile trip may be made in 30 minutes, or less, and would probably not be considered by anyone as “traveling”.
+++++++++++++++++++++

§ 46.15. NONAPPLICABILITY.

(b) Section 46.02 does not apply to a person who:

(3) is traveling;

[Additions made by the 79th Leg. to be effective 1 Sep 2005]

The 79th Leg. attempted to define “traveling” by creating the 46.15 (i) presumption.

(i) For purposes of Subsection (b)(3), a person is presumed to be traveling if the person is:

(1) in a private motor vehicle;

(2) not otherwise engaged in criminal activity, other than a Class C misdemeanor that is a violation of a law or ordinance regulating traffic;

(3) not otherwise prohibited by law from possessing a firearm;

(4) not a member of a criminal street gang, as defined by Section 71.01; and

(5) not carrying a handgun in plain view.

+++++++++++++++++++
Even though it was pretty obvious that the 79th Leg. Intended, by creating the 46.15 (i) presumption, to define “traveling” some of our Texas District Attorneys decided to nit-pick with the wording of the amendment and directed the peace officers in their districts to go ahead and arrest “travelers” and confiscate their weapons because the wording of the legislation said “presumption” rather than actually establishing a “definition” for traveling. This action would require the “Traveler” to raise the presumption in a criminal trial. The arrest will necessitate making bond, hiring an attorney, possibly never seeing the confiscated weapon again, and having the police establish a criminal arrest record for the traveler. “He might beat the rap but he won’t beat the ride.”

Guess what happens the next time the innocent traveler gets stopped by the police? The officer runs a record check and a weapons charge shows up. Guess who’s gonna be looking down the barrel of an officer’s Glock. Guess whose car is gonna be searched? Guess whose vacation trip is gonna be put on hold for as long as it takes for the officer to be satisfied it’s okay to allow the traveler to continue on down the road? Guess who may just end up in jail again charged with UCW if the traveler has a weapon in his car?
++++++++++++++++++++

In an attempt to clarify the 79th legislature’s intent, and pacify the lawyers, the 80th Legislature passed House Bill 1815, which repealed § 46.15. (i) [the presumption of traveling] and changed the wording of:

§ 46.02. (a) UNLAWFUL CARRYING WEAPONS - to read as follows:

(a) A person commits an offense if the person intentionally, knowingly, or recklessly carries on or about his or her person a handgun, illegal knife, or club if the person is not:

(1) on the person's own premises or premises under the person's control; or

(2) inside of or directly en route to a motor vehicle that is owned by the person or under the person's control.

(a-1) A person commits an offense if the person intentionally, knowingly, or recklessly carries on or about his or her person a handgun in a motor vehicle that is owned by the person or under the person's control at any time in which:

(1) the handgun is in plain view; or

(2) the person is:

(A) engaged in criminal activity, other than a Class C misdemeanor that is a violation of a law or ordinance regulating traffic;

(B) prohibited by law from possessing a firearm; or

(C) a member of a criminal street gang, as defined by Section 71.01.
+++++++++++++++++
Questions- See (a) (1) & (2)

(1) Is some flannel mouthed lawyer gonna file a criminal case against a friend of mine if he wants to show off his new pistol and brings it to my home rather than calling me to his home?

(2) If Cletus and I decide to take our handguns to a Dallas gun show will this allow some super rookie to file a criminal case against me if I elect to save gasoline money and ride with Cletus in his car?

Now, maybe I’m overly paranoid, but Lawyers use words to screw over people and even though it was pretty obvious what the members of the 79th legislature intended when they amended § 46.02 back in 2005, a few nit picking lawyers managed to cause enough problems for it to become necessary for the 80th legislature to go back and re-lick their calf.

Oh yeah, the traveling exception remains in § 46.15. But, again there is no definition (or presumption) for “Traveling”.

+++++++++++++++

It never fails to amaze (or amuse) me that people who should keep up with the legislation and regulations that apply to their professions, don’t. A County or District Attorney or a Texas Peace Officer who allows a law to be passed by the legislature without being aware of it and its implications isn’t handling business very well. Statements like, “It came in under the radar” or “we haven’t received any word from our legal section on that” are positive indicators of incompetence on the individual level. With the preponderance of home computers and information on the internet there is no excuse for a professional not being aware of laws and regulations that influence his business.

+++++++++++++++
Todd,

I just talked with my county sheriff’s dispatch office. I was informed that if an officer makes a stop and runs a CCH he will receive information as to TCIC/NCIC arrest and conviction information on the individual he has detained. The law merely acknowledges the rights the citizens of the State of Texas have under the constitutions of both the United States as well as of the sovereign state of Texas. Government should fear its people, the people should not have to fear the government. Dangerous ? Dangerous to whom?

Gritsforbreakfast said...

Todd, most counties stopped making these arrests in 2005. It was just a few recalcitrant DAs - a dozen or so - who insisted on still prosecuting UCW cases against law abiding citizens.

My understanding, as WWW said, is that TCIC and criminal street gang database info are in fact transmitted to the officers at traffic stops. E.g., often an officer learning of a driver's criminal history can result in a Terry frisk, which happens pretty routinely.

I don't think this will make things more dangerous. All told, in fact, I think it will make it safer, e.g., for small businesspeople who want to carry a gun to make a bank deposit and other law abiding citizens who want to carry a weapon in their vehicle for their own protection.

Doran Williams said...

Let's not lose sight of a very important aspect of the changes made by the Lege, vis a vis H.B. 1815. This Act restores some semblance of a right to privacy in one's automobile. That right was the victim of the war on the Fourth Amendment, uhh, war on drugs, and an opinion by the SCOTUS in which the Supremes opined that people did not have a reasonable expectation of privacy in their automobiles, so, ipso facto, the fourth amendment did not apply to automobile searches. This opinion was confabulated with confused reasoning about searches incident to a lawful arrest, thus driving a second nail into the Fourth Amendment' coffin as applied to auto searches, just to make sure.

It has always amazed me that a majority of the SCOTUS could flail around and magically come up with "facts" about what a majority of the people of the United States thought about their rights to privacy in automobiles.

It is ironic that this semblance of a right to privacy in automobiles, perhaps I should be saying vehicles, instead, was brought about by a concern for carrying deadly weapons, rather than rarely, if ever, joints.

Anonymous said...

Todd:

How will this allow criminals to carry? If they're felons or committing a crime, they're breaking yet another law b carrying. Otherwise (and even then, really), they're innocent until proven guilty, just like you.

I trust the average Joe with a gun long before some redneck cop who just took the job because it lets him carry a gun or push people around.

Doran:

This isn't so much a right to privacy as a recognition of the right of self defense.

But I agree, it's good to see some common sense creeping back into issues such as this.