Monday, February 26, 2007

Report: DAs defy Legislature over carrying handguns in personal vehicles

A public policy report I authored was jointly released this morning by an unlikely liberal-moderate-conservative coalition between the ACLU of Texas, the Texas Criminal Justice Coalition and the Texas State Rifle Association.

The report follows up on subjects that first began as contemplations here on Grits: Are District and County Attorneys in Texas defying the Legislature to prosecute Texas drivers carrying otherwise legal weapons in their personal vehicles?

Longtime readers may recall that I filed open records requests last year with DAs and county attorneys across the state to find out. (I should pause to thank Lindsay Frenkel and Leah Pinney for their invaluable help sorting through and cataloguing the responses.)

We found that while many prosecutors were abiding by the new law, some were flaunting it. With the encouragement of the state DAs' association, some prosecutors advised local officers to continue to make arrests under the old case law, in defiance of the Legislature's clear intent.

See a pdf file of the full report for more. As noted below, last week Rep. Carl Isett filed new legislation to fix the law and make clear who can carry a gun in a private vehicle.

Today the ACLU of Texas, the Texas Criminal Justice Coalition and the Texas State Rifle Association jointly issued this new report on DAs reluctance to enforce the law. Here's the text of the joint press release that came out along with it:

February 26, 2007

Legal gun owners under cloud
as District Attorneys defy Texas Legislature

Law abiding handgun owners who carry their gun in their car may still face arrest or confiscation of the gun because many district attorneys have refused to implement a law passed by the legislature last session over their opposition.

“It appears that some District Attorneys, and the District Attorney’s Association, think that they are above the law,” said James Dark of the Texas State Rifle Association. “The law is now very clear that a person who is not a criminal can carry a handgun in the car, but District Attorneys have instructed police officers to ask a litany of invasive and unneeded questions, or even just make an arrest or confiscate the gun. If officers follow these instructions, they will clearly violate the rights of Texans carrying guns legally.”

An unusual coalition of gun rights, criminal justice and constitutional rights groups today released a study of the state’s implementation of HB 823, a new gun law clarifying a driver’s rights. The coalition filed hundreds of open records requests for any directives issued by District Attorneys to their local police departments.

“We launched this study because we had indications from the Texas District and County Attorneys Association itself that they were not ready to accept the passage of this new law,” said report author Scott Henson of the Texas Criminal Justice Coalition. “They want to position themselves as tough on crime, but they are willing to sacrifice the rights of law abiding citizens. We saw what they said publicly, and wanted to find out what they were actually telling police officers.”

The coalition found that some DAs are telling police departments to investigate gun owners using procedures developed before this law passed, when the status of “traveling” with a gun was unclear. One County Attorney advised police officers to arrest for "unlawful carrying" as before and let the prosecutor's office "sort out the legal niceties."

“Our study found that some officers have been instructed to ask motorists where they are coming from and where they are going and how long they’ve been on the road,” said Henson. “They have been told to look in the car for groceries or luggage. It simply doesn’t matter whether you have groceries or luggage in your car, or whether you drove a mile or 500 miles.”

“These roadside investigations of law abiding Texans are unnecessary, intrusive, and could be unconstitutional,” said Will Harrell of the ACLU of Texas. “Especially since it appears that a Texan’s freedom to drive with a gun in the car may still vary from county to county—the exact problem that this new law should have fixed.”

“We strive for the greatest clarity in the law so that law abiding citizens and police officers will both understand and abide by that law,” said Ana Yanez Correa, Executive Director, Criminal Justice Coalition. “We are happy to work with the District Attorneys to ensure that they fully understand motorist’s rights under the law and respect those rights.”

“The intent of the new law is clear,” said Dark, “but the coalition will support legislation to make it even more clear that law abiding Texans can carry a handgun in the car, if necessary. And we hope that the District Attorneys will learn that it’s not their job to enforce the laws they wish were passed by the legislature, but only the ones that are actually on the books.”

HB 1815 was filed last week to address the problem. For more information on HB 1815, contact the capitol office of Representative Carl Isett, 463-0676.


Cool, huh?


Anonymous said...

"Flaunting" the law? Come on, Scott. I thought a lawyer was supposed to be a glorified English major - but maybe not. As you must know, you flaunt your money, you flout the law - right?

fine piece of work you are doing here, otherwise. I don't get these damn cops, DA's, etc - same crap in California over medical marijuana - a law is passed, but local law enforcement often acts as if nothing has changed. Who are they working for anyhow? (don't answer that, please)

Anonymous said...

My apologies - I see you are not a lawyer - your license to mangle English language is hereby reinstated :-)

Gritsforbreakfast said...

According to, the 4th definition of "flaunt" is "to ignore or treat with disdain," which is the sense in which I was using it. Best,

Anonymous said...

The DA's need to get back to basics. They do not make laws and are not supposed to be in the Legislative process at all. Especially the one from a county just north or Austin and may be a part of Austin. He should stay at home and mind his own business.

DA's are a large part of the problem with the laws in Texas and the wield too much power. They need to be sit down and re-read their job descriptions and remember they too can be removed by the election process. Do your job and leave the job of the duly elected to do theirs.

Anonymous said...

Scott, it would have been nice if the PDF report had included the entire responses from those 13 jurisdictions, especially Houston, whose D.A. originally kicked this thing off.

Anonymous said...

but has therte been anyone actually charged?

Gritsforbreakfast said...

@ ray - With UCW? Yeah, purely second hand I've heard of at least two cases where folks were arrested and charges were dismissed under the presumption. OTOH, on the DA's web forum a south Texas LEO said his department was enforcing UCW just like before. Nobody's done a case-level analysis.

I also heard recently - also through the rumor mill, not a primary source, that a current case may become a test for the courts. To my knowledge there have been no Court of Appeals level case of first impression so far, though perhaps some atty will correct me.

It's not been widespread, just spotty and highly discretionary, when IMO the Lege intended to leave little discretion at all.

SpeakerTweaker said...

It's nice to see that there are some lawmakers in this country that still have some salt.

It's not enough to write law allowing carry in the car? Fine. We'll add on with CRYSTAL CLEAR clarification as to just what "allowing carry in the car" means.

God Bless Texas.


Anonymous said...

The DA's in Houston are definitely defying the law. In July I was arrested for carrying my handgun while traveling from Houston to Austin. The arresting officer called the DA to find out what they wanted to do since I 'appeared' to be traveling and he told the officer to arrest me and confiscate the handgun.

6 weeks and 4 court appearances later the DA had no choice but to dismiss the case or get laughed out of court in trial.

I am wondering at this point if I have the right to file a lawsuit against the city of Houston because of this.