[well, she didn't quite grasp the finer points of presumptions, which is why she misstated my explanations of presumption vs. defense vs. exception, but even lawyers struggle with that sometimes. The rest of the article is pretty informative ... Shannon]

Gun law stumping officials

By Cindy V. Culp
Waco Tribune-Herald

Friday, September 16, 2005

In what seems like a bad punch line, a new law intended to clarify when Texans can legally have handguns in their vehicles has further confused the issue.

Across Texas and in McLennan County, law enforcement agencies and prosecutors are interpreting the law in different ways. At issue is a section of the penal code that dictates when people can have handguns in their vehicles without a concealed handgun license.

For years, Texans have had the right to carry handguns in their vehicles as long as they are traveling. But since neither the Legislature or the courts defined what "traveling" was, different jurisdictions enforced the law in different ways.

Some police agencies basically accepted all trips made in a private vehicle, even if it was just to the store and back. Others required people to be traveling from city to city, across county lines or even to another state.

To stop that uneven application of the law, Rep. Terry Keel, R-Austin, authored House Bill 823 this spring. It says people are presumed to be traveling as long as they are in a private vehicle, are not engaging in criminal activity other than a minor traffic violation, are not a member of a criminal street gang and are not prohibited by any other law from possessing a firearm.

Keel said he chose those terms because they are objective measures police can quickly check in the field. He said the way the law is worded gives a legal presumption in favor of citizens. That means as long as someone meets that criteria, he or she should be allowed to go on his way and not fear arrest.

The new law took effect Sept. 1.

"I don't think there is any ambiguity at all," said Keel, who has served as both the sheriff and an assistant district attorney in Travis County.

But some of Keel's colleagues in law enforcement disagree.

"Regardless of what the Legislature intended, what they wrote on paper is unclear," said Shannon Edmonds, a staff attorney for the Texas District and County Attorneys Association. "That happens a lot."

The problem, Edmonds said, is that the state cannot say something is a crime and then prohibit police from arresting people for it. What it can do, however -- and what he believes the new law does -- is create a defense to prosecution.

To illustrate the difference between the two concepts, Edmonds gave the example of a person fatally shooting someone. Although shooting someone in self-defense is legal, that doesn't mean the shooter won't be arrested at the scene of the crime for murder.

In the same way, although traveling may be legal justification for having a gun in a vehicle, that does not mean people are exempt from arrest for unlawfully carrying a weapon, Edmonds said. Put more commonly, people might beat the rap, but they won't beat the ride.

"A defense is a legal concept for the court," Edmonds said. "There is no such thing as a defense from arrest. There's just a defense from prosecution. This issue is going to have to be hammered out in the courts."

Realistically, though, it will be a year or longer before a case concerning the new law will make its way into the appellate system, Edmonds said. With the next legislative session less than two years away, lawmakers will likely take new action before the issue is settled in the legal system, he said.

"(The bill) was a compromise solution to a difficult problem and probably is not the final word on this from the Legislature because the results won't be satisfying to anyone," Edmonds said.

In the meantime, some police agencies say they are left in limbo. In Waco, for example, city attorney Art Pertile said his interpretation is similar to the Texas District and County Attorneys Association's.

The "presumed to be traveling" language refers to a part of the penal code which says prosecutors must rebut presumptions at trial, Pertile said. The fact that it references prosecutors and a trial signals an arrest has bee made, he said. Thus, he thinks the law is a defense rather than an exemption, he said.

Over at the Waco Police Department, officers aren't quite sure what to think, said spokesman Steve Anderson. On one hand, the law is fairly clear that people should not be arrested if they meet the "traveling" terms, he said.

On the other hand, the law also seems to indicate an officer can still arrest someone if he can articulate why he thinks a person is not truly traveling, Anderson said. With that leeway, each case is up to the officer's discretion, he said.

"It depends on a lot of things," Anderson said. "What time of night is it? What time of day is it? What are the circumstances? What stories are they telling you? Do they match if there is more than one person in the car? Do you know something to be a lie? ... I hate to say it this way, but sometimes it comes down to that gut punch that this is not a good thing."

For now, though, the department is waiting on clarification from the district attorney's office, Anderson said. Until it gets that, officers may be less likely to arrest someone and instead just confiscate the gun. If prosecution is deemed necessary, a warrant could later be issued for that person's arrest, he said.

McLenann County District Attorney John Segrest said he is not ready to comment on the law because he has not had time to research it.

Some local agencies don't feel clarification is necessary. In Robinson, officers won't arrest people who meet the specifications laid out in the new law, said Lt. Tracy O'Connor. In the past, they made such arrests on occasion, he said.

"I think it's pretty self-explanatory," O'Connor said of the change.

Bellmead Police Chief Robert Harold also said he thinks the new law is fairly clear. His officers won't arrest people who have handguns concealed in their vehicles, unless they have reason to believe they are engaged in crime or about to be, he said.

At the state level, agencies seem to be divided among urban and rural lines, Edmonds said. Rural jurisdictions are more likely to view the new law as an exemption from arrest, rather than defense from prosecution, he said.

While the media wants to talk about the changes to PC 46.15, it's clear that the real issue is in PC 2.05. If you have a copy of our Legislative Update book, you'll see it discussed as well (although not as thoroughly as here).

First question: are there any other (prosecution) presumptions that include multiple factors or elements? I cannot think of any. Does that make interpretation of the statutes more difficult?

Second question: What initial burden is placed upon the defense in order to get the presumption submitted to the jury? For instance, what is the effect of the bill's use of the exact same language from prosecution presumptions saying that the judge must submit the issue to the jury "unless the court is satisfied that the evidence as a whole clearly precludes a finding beyond a reasonable doubt of the presumed fact"?

The new law is a butchered approach to writing criminal law. Creating a defensive "presumption", that is normally used to shift burdens at trial, to decide whether someone should be arrested is putting a square peg in a round hole. The whole thing needs to be repealed.

As I understand it, the author didn't want "innocent" people arrested for CAW. So, why not create a procedure where the officer has the discretion (or perhaps is encouraged, based on the presence of the listed factors in the current presumption) to seize the weapon, complete a report and not make an arrest, so long as the defendant is not a threat to public safety or flight risk. Then forward the investigative report to the prosecutor for review. That gives the prosecutor an opportunity to decide if the gun owner is "innocent." If no case is filed, the gun is returned. If a case is filed, a warrant issues.

While that idea has the appeal of being a solidly common-sense approach, I fear it would run headlong into the sentiment shared by a number of legislators that prosecutors generally cannot be trusted to do the right thing when given the opportunity.

The legislature trust of prosecutors is almost identical to this nation's judges trust of jurors. Everyone talks about how much they believe in the system, but then do everything possible to keep options and information away from them for fear that they might use it in the wrong way.

Of course, I am afraid of the guy who is having a bad day on I-10 or I-35 and has a gun in his car that he might use in the wrong way. I am even more afraid of the angry guy parked outside his recent ex's house with that gun that I am pretty sure he is about to use in the wrong way. But heaven forbid we should pursue a handgun policy that has been in place since the 19th century in Texas (when you have to believe just about everybody really did carry a gun most of the time).

I'm not sure I completely agree with the concept that PC for an arrest can exist when all the facts available to the officer show conclusively that the defendant will be acquitted.

But apart from that, I have a more practical problem with advising officers to arrest people when those arrests could open them up to 1983 suits. See Painter v. Robinson, 185 F.3d 557, 570-71 (6th Cir. 1991) (finding officer did not have qualified immunity when he arrested plaintiff for carrying a concealed weapon, knowing that plaintiff had an affirmative defense).

I know that case dealt with affirmative defenses and not presumptions -- still, I'm not sure that a subtle difference between those two concepts will be of much help to an officer-defendant in a civil rights lawsuit.

I am advising the officers in my county to go ahead and make UCW arrests as usual. There is no way that they can determine on the spot if the person is not lawfully authorized to have a weapon, much less consider the traveling defense. The person could be a parolee; there could be a protective order; etc. I have also advised them to do some more adroit questioning at the time so that the responses can be evaluated for a determination about traveling, for which we will rely on case law as best as possible. In a nutshell, absent a CHL, a person is still risking an arrest for UCW, and the case will be shaken out by a prosecutor. It is a defense presumption, not an element to be considered for establishing probable cause.

Mr. Miller says: "I am advising the officers in my county to go ahead and make UCW arrests as usual. There is no way that they can determine on the spot if the person is not lawfully authorized to have a weapon, much less consider the traveling defense. The person could be a parolee; there could be a protective order; etc." I find that to be ridiculous simply because a person's criminal history - to include protective order status - is always readily available to an officer via his radio or mobile computer terminal.

You can quickly see whether or not the person is a parolee or has a protective order against him in an instant. In fact, all of the elements for this presumption and defense can be quickly and easily established by the officer at the scene. So why Mr. Miller would subject his county and his law enforcement officers to Section 1983 liability is beyond me!

And why someone would want to waste the court's time in trying to bring forth a case that he/she darn well knows is going to lead to an acquittal is beyond me, too! It seems to me that when you do something like that, you lose credibility with the court, waste the judge's / jury's time, and waste taxpayer dollars.

One final thought that no one has mentioned here is that most prosecutors like to have the public impression that they never lose a case and that they are very effective because they don't lose cases. But when you start to file these bogus UCW cases and they all get thrown out of court, what is the public perception going to be? That their prosecutor is ineffective because he loses a lot of cases and that he wastes taxpayer money filing bogus cases.

Computerized criminal histories are notoriously incomplete. Certain counties, for example, have ridiculously low rates of entering arrests and dispositions of criminal cases into the CJIS database. A recent Dallas Morning News article exposed this gap in computer entry.

So, I think Mr. Miller is correct in declining to have an officer rely on the preliminary results of a computerized background check done at the point of a traffic stop. For those of us who have actually prosecuted criminal cases, we all have stories of the discovery of substantial criminal histories that were not evidence even at the point of grand jury presentation.

In addition, the rule of law works best when we do what the law says to do. Whatever intentions the Legislature had in trying to prevent the arrest of "good" people for carrying a weapon, this new law simply doesn't do a very good job of helping the officer on the street make a decision.

Quick question.
How do you prove or What exactly is needed to prove the "Gang Banger" part of the law? I would imagine that if they are registered in some city as a known gang member, then fine, but What if they are decked out in the baby blue or Red and have tats all over? Is the officer way out of line in assuming that the person is likely a gang member? How about the stereotyping argument? (perhaps the clothes color restriction needs to be added?)

As long as we are looking for categories of people to exclude from the traveling defense, how about:

registered sex offenders;
anyone with a family violence finding;
anyone with a deadly weapon finding;
anyone born in a leap year;
left-handed people;
men with mohawk haircuts;
surfers;
thumbsuckers;
and, of course,
all cats.

It is already legal to carry a handgun in a recreational vehicle. The legislature has attempted to apply the same rule to all types of vehicles. I believe their attempt, though clumsy, succeeded.

Is my personally owned pickup truck a public vehicle if I take my neighbor to the store up the street? What about if I'm driving alone in the same truck and stop and pick up a stranded motorist?

I would think that a "public vehicle" would be a vehicle that a substantial amount of the general public has access to, like a bus or taxi, but I'm not real sure.

I strongly disagree that an officer's speculation that an armed person's CCH might be incomplete can justify an arrest. By that logic, a game warden could arrest every hunter he encounters because he "might" have a protective order or a conviction for a felony or family violence. The officer should rely on known facts and reasonable inferences drawn from those facts, not speculation.

The officer isn't relying on the speculation to make an arrest. He's relying on the fact that the defendant was carrying a weapon to make an arrest. The rest of the facts deal with the new "defense" to arrest.

This is an interesting issue, if only because so few courts have written anything about it. Again, Ohio federal courts seem to be the only ones who care:

"The test for probable cause is not whether facts and circumstances within the officer's knowledge are sufficient to warrant a prudent person, or one of reasonable caution, in believing, in the circumstances shown, that the suspect is committing an act that would be a criminal offense but for the fact that the actor has a valid affirmative defense. The test is whether the officer is reasonable in believing that the actor is in fact committing a criminal offense. Since the arresting officers had actual knowledge that the Dietrichs had a valid affirmative defense to the crime of carrying concealed weapons, the facts and circumstances did not warrant a belief that the Dietrichs were committing a criminal offense. Therefore, there was no probable cause for arrest."

Dietrich v. Burrows, 976 F.Supp. 1099, 1103 (N.D. Ohio 1997), aff'd, 167 F.3d 1007. (emph in original)

Okay, this isn't exactly iron-clad precedent, but I think this is a reasonable view -- if an officer has knowledge that would indicate no crime has been committed, it's hard to justify an arrest based on probable cause.

The application of that concept to HB 823 is a little tougher, of course, and has already been touched on. Can a patrol unit criminal history search on a suspect be definitive enough to constitute "knowledge" of the circumstances? How about whether he's a member of street gang? At what point is the absence of evidence evidence of absence? Even Dietrich (above) distinguished a case where the arresting officer did not have to take the suspect's word (that his affirmative defense to the crime was true). So, at least, an officer's knowledge of the affirmative defense would probably have to be conclusive.

So, given all this ambiguity, why not just tell people they need to get a Concealed Weapon License if they want to travel with a gun?

Easier solution. Just make it legal to have a gun in the car (it is, after all, an extension of one's home, no?).

adding to John B's list: shouldn't anyone with the name "Wayne" especially a middle name, be covered by the statute. Although, I guess you could make an argument that having the middle name Wayne probably gives the officer probable cause anyway!