I'm confused; were prosecutors "ignoring" the previous law, or "making it up"?

(this article didn't go on the front page under Issues in Prosecution because it contains too many inaccuracies about the new law and the old law, but I wanted to share it anyway.)

The article

New law allows guns in vehicles

By Mary Jane Farmer
Herald Democrat

A bill that becomes law Saturday allows law-abiding people to carry guns in their vehicles without a concealed handgun permit. House Bill 1815 passed unanimously in both houses of the Texas legislature, after which Governor Rick Perry signed it into law.

HB 1815 was actually passed to clarify some issues left dangling by a similarly-enacted law in 2005, according to Wendy Hopper, Texas Senator Craig Estes' executive assistant. But, the wording in it still leaves room for improvement, said Grayson County District Attorney Joe Brown.

The 2005 law specified that it was a defense to prosecution against a charge of unlawful carrying of a weapon if the person was traveling with a gun. Unsuspecting motorists who believed they were complying with the intent and spirit of the law still faced arrest and UCW charges, and then were forced to spend time and resources hiring an attorney to submit evidence that they qualified for the traveling presumption under the law.

Now, it simply isn't an offense to carry a gun in a vehicle, but with these three critical qualifiers: (1) the gun must be concealed; (2) the carrier cannot be involved in criminal activities; (3) the carrier cannot be a member of a criminal gang. The fourth rule isn't mentioned in the bill, but stands from laws on the books for a long time, and that is that no felon can carry or even be around a gun.

Hopper said the 2005 law allowed a person to "carry a gun in his car without the need of a concealed license. However," she continued, "a number of prosecutors and police departments didn�t like the new law, so they chose to ignore it and continued to arrest and charge people that were abiding by the new law with the UCW charge."

Texas State Representative Carl Isetts out of the Lubbock area authored HB 1815. His legislative director Matt Creel explained that one major problem involved with the 2005 law was that there was no solid definition of "raveling. D.A.' were making up that rule."Creel continued to say that the "efense to prosecution"was problematic with its legal hurdles.

Supporting Isetts in this legislation, Creel said, were the National Rifle Association, the Texas State Rifle Association, and the American Civil Liberties Union.

Creel mentioned many of the differences between the new law allowing people to carry guns inside their vehicles and those who have concealed handgun permits.

Without the permit, Creel said, "You can't take it (a gun) with you when you go into the grocery store or any other facility. To have a weapon on you, you must be in your home, your car, or a direct route between the two."

Grayson County Sheriff Keith Gary commented, "Our advice (on enforcing the law) is a person can go from his house to his vehicle and his pistol can be in plain sight, but once in the car, he better put it in his glove box or under the seat. If his gun is exposed, he is under violation."

Brown pointed out, "One of the stranger effects of this (law) has been that in some situations, a concealed handgun license holder is more restricted in where he can take a gun than an ordinary citizen. For example," Brown continued to say, "a license holder is prevented by Penal Code Section 46.035 from taking a gun on 'the premises of a church,' 'in an amusement park' or 'on the premises of a sporting event.' However, a non-CDL holder can take a gun in his car to the parking lots of any church, amusement park, or sporting event, as long as that person meets the three criteria of not being a gang member, not otherwise engaged in illegal activity, and keeps the weapon hidden."

There are some inconstancies in this change in the law which have puzzled prosecutors across the state, Brown said. He went to the Texas District and County Attorney's Association, the state prosecutors' trade organization, for more information. The TDCAA pointed out another disparity that may have to be addressed by a court in the future, that of traveling with an "illegal knife" or a "club," both mentioned in the law as well as handguns.

With regard to an illegal knife or club, Brown said, anyone, including gang members or people committing other crimes, may possess and do not have to conceal an illegal knife or club in their car, the way the law is written now.

"However, there are still places that such weapons cannot be taken by most people. Texas Penal Code section 46.03 makes it a third-degree crime to take a firearm, illegal knife, club, or prohibited weapon to certain places, including school grounds, polling places, courthouses, racetracks, airports, and penal institutions," Brown said.

Sherman Police Sgt. Bruce Dawsey and Van Alstyne Police Lt. Tim Barnes talked about the law's possible effect on officer safety during traffic stops. Barnes said that officers are trained to approach every vehicle as if the driver might be armed, and to that end, they will continue with that procedure.

Dawsey expressed concern that a motorist might be concealing his handgun in some place or manner that may even put his own safety in danger, should a police officer stop him. The ideal response for a pistol-packing motorist who has been stopped is to tell the officer he has a gun in, for instance, his glove box. With that information, the officer can proceed in a manner to keep everybody safe. Without it, and the driver reaches into the glove box to get his insurance card, the officer sees the gun and acts or reacts accordingly.

Both officers Dawsey and Barnes expressed concern that road rage incidents might escalate into more violence with guns in the immediate reach of drivers.

Gary agreed. He pointed out that since the adoption years ago of the law regarding concealed handgun licenses, there has only been one case of a licensed gun carrier getting into a road rage situation. "It's my considered opinion that you may be getting a different breed of cat who might be influenced when it comes to road rage."

Gary said the Sheriff's Office is "going to do the best we can to enforce the new laws, protect the 2nd amendment rights of law-abiding citizens, and prosecute criminals. There is no doubt that this change will put more guns on the street.

"There will undoubtedly be some decisions coming out of the courts which will give us some guidance. I know that the intent of the legislature is to allow law-abiding citizens the ability to have the ability to defend themselves, while trying to keep weapons out of the hands of bad guys. That is a hard line to draw."

Gary said HB 1815 "doesn't seem to have been well thought out in the writing of a bill. I'm hoping that the legislature will go back and clean the wording up again, to make better sense of it."

Barnes said that it's up to the public to keep the law from being repealed. "If it becomes a problem, the law can be taken back. It's up to the public to determine if they want to keep this law by using their common sense."

So, Shannon, you are now part of a "trade organization"? I think some were ignoring and some were making up, and all were doing their best to give the old law a rational interpretation. Looks like the "to and from" question has been answered (by one legislator).

Could we barter for some accuracy? Maybe one issue of The Onion in exchange for a correction?

Well, I think the article ends correctly. When people mess up, the Leg will be quick to step in and change the law. The Leg is very good at "fixing" things with bills. Right?

quote:

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Originally posted by Martin Peterson:
Looks like the "to and from" question has been answered (by one legislator).

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Not to me. It looks to me like a staffer assumes the law says what his boss wanted it to say but probably isn't even aware of what the bill actually said on that issue. Which is regrettable, b/c now it'll probably have to be litigated somewhere down the line, which will be a waste.

OK, I admit, the "answer" probably doesn't count for much. If we have a couple of road rage incidents, does that mean the whole idea will be scrapped? Is the "traveling gun" merely a holdover from the "Old West" or a newly discovered modern-day necessity (convenience)?

I have another question--what about passengers? The revised Penal Code 46.02(a) and (a-1) specifically refer to a vehicle owned by the person or under the person's control. So if a passenger is carrying a handgun, illegal knife, or club on or about his person in a vehicle that he doesn't own or control, is he violating 18.02? I've already had one officer ask about his apparently anomaly.

Janette A

Under 46.02(a), a passenger with a hangun, club, or illegal knife in a vehicle is still UCW unless the passenger is "inside of ... a motor vehicle that is owned by the [passenger] or under the [passenger]'s control."

If the passenger does own the vehicle ("control" is undefined, but I take it to mean driving, which therefore excludes passengers), he may still be UCW under 46.02(a-1), but only if the handgun is in plain view or the passenger is a bad dude (see 46.02(a-1)(B)-(D)). Note that (a-1) is limited to handguns only, so a person can have an illegal knife or club in any vehicle they own or control, even if it is in plain view and they are the biggest gangbanger in town.

Be sure to tell your troopers "Good luck with that," Janette.