Ethics and the Law: Don’t Take Your Guns to Town - By Robert Pelton

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Tuesday, February 16th, 2016

If Wild Bill Hickok were walking down the streets of Houston or Abilene or any other place in Texas with his guns today, he would probably be approached by the police and arrested. Wild Bill has a concealed handgun license, but Wild Bill doesn’t carry his pistols in a holster; he carries them stuck in a sash wrapped around his waist. Too bad he didn’t understand the nuances of the new open carry law. But then, who does? Several months have passed since the law was signed, giving law enforcement time to study and prepare for a freedom not al­lowed in Texas since after the War Between the States. But there is significant controversy about the new open carry law.

Growing up in Abilene, we all watched John Wayne, Audie Murphy, Lash Larue, and other war and cowboy heroes—where the good guys fought for noble causes and always won the day. And once again we are returning to the days of wearing a holster on our hip. But it turns out carrying a gun is more dangerous than “The Duke” may have led us to believe. When real bullets fly, real lives are impacted in ways not illustrated on the silver screen.

Guns sales are at an all-time high. The murder rate has escalated in Texas and many other places. There were 283 murders in Houston in 2015, the last one in a hotel on the north side of town. Today, citizens are fearful about where our communities are headed. We all want to feel safe in our homes and when out in public. As a result, many law-abiding citizens are choosing to carry guns for protection.

All gun owners should know the power they have to do either good or harm with the weapons they carry—and the risk they take by carrying. Unless people have been in the military or worked in law enforcement, they may not be properly trained on how to defend themselves or even use a firearm. And they likely have not truly grasped the potential consequences of that act. We all want to protect our families, friends, other citizens, and ourselves from the bad guys, but before this happens you need to be prepared. Buying that new shiny pistol is exciting, but before you carry or shoot it, remember that pistol is a tool—a dangerous tool. Get the right kind of pistol. Study it, examine it, read the instructions, and practice safely with it before you start toting it around.

For your own safety, as well as others, you should understand how to care for your pistol. One of my gun-toting friends who usually carries a couple of pistols was bragging about being prepared. I asked him to let me examine the pistol he carried in his boot. It would not even work because it was so dirty. He was embarrassed. A retired Texas Ranger friend of mine who gave me his hideout gun showed me the one he now carried. He, too, was embarrassed as I pointed out to him it might shoot one time and no more because the slide was dirty. Recently in Abilene, some friends were showing off their barbecue guns, those shiny big guns they wear when having a cookout. One of them was fooling with his pistol and it accidentally went off. Luckily it did not kill one of them.

Today, the new law allows a person with a concealed handgun license to openly carry if it is in a holster. The Old West may have risen again, but the “basics” of carrying a gun will never be the same. With more freedom comes a greater responsibility to be well trained on handling and operating a weapon. It also comes with some legal risk to the carrier. The district attorney has graciously provided HCCLA an interpretation of what the law means. JoAnne Musick, as president of HCCLA, has provided us with the position of the defense bar. While they are similar in many ways, there is still some polite disagreement about what the new law means. Can a police stop you and ask to see your license? Yes! Should you show it to them? Yes! But what happens if you don’t? Well . . . It is a little unclear. This lack of legal clarification as to the law’s application is a problem, and it will be for your future clients. We will only know the answers when someone is arrested and judged on the facts of their situation. Be aware that someone will be the guinea pig on which this law is tried and those yet-to-be-determined answers are defined. That person may be your client.

As lawyers, what do we advise our gun-toting clients? Make sure that you have a good reason for openly carrying your shiny new pistol, and that you have a concealed handgun license if you intend to carry one. Be aware that you may be, and probably will be, a target for law enforcement to stop and ask you questions. When the police may ask you if you have a permit, be polite and tell them the correct answer. This is the moment where potential problems arise. Also be aware that if you are in the wrong place at the wrong time, an outlaw may try to shoot you first because you are openly carrying a pistol.

We do know that Penal Code 46.02 still remains the law and allows gun rights to those individuals who do not have a concealed handgun license. The revisions that took effect January 1, 2016, now state that a person commits an offense if the person intentionally, knowingly, or recklessly carries a handgun in a motor vehicle or watercraft that is owned or controlled by that person at any time if (1) the handgun is in plain view, unless the person is licensed to carry a handgun and the handgun is carried in a shoulder or belt holster, or (2) the person is engaged in criminal activity, or (3) the person is prohibited by law from possessing a firearm, or (4) the person is a member of a criminal street gang.

Also note that even with a license, gun owners can’t waltz into just anywhere without taking notice of the posted signs. Gun owners and business owners alike should be aware of Texas Penal Code 30.06, which details the requirements for signs businesses may display to prohibit guns on their premises. According to a “reliable and credible” law enforcement source who shall remain nameless for his own protection, many of the signs posted by business owners are not even effective as they do not comply with the code. This may save your gun-slinging client but not your gun-shy business owner. Make sure you have crossed all your t’s and dotted all your i’s before posting your sign and expecting it to be enforced.

AS WE ENTER THE NEW YEAR with the open carry law, there are several things to remember: safety first. A firearm is designed to kill. Yes, there are some people who shoot skeet or go to a gun range, but a firearm is designed to kill. If you have ever been in law enforcement as a licensed peace officer or in the military, you will know the consequences of weaponry ignorance. Firearms are not toys. They are designed to cause destruction of a target. And secondly, this new law could dramatically affect the status quo. Our clients need to understand they must make sensible decisions when choosing to carry. We know many of them will not. That is what keeps us in business. Still, we as lawyers are also in the law enforcement business. Our job is to make sure our clients are legally arrested and searched. This job is made more difficult now because no one knows for sure the details to this new law. Johnny cash sang a song, “Don’t Take Your Guns to Town”. I RECOMMEND YOU READ THE LYRICS OR LISTEN TO THE SONG before you take your guns to town. Think long and hard about the consequences.

Do you want to go away peacefully in the night or “die with your boots on”? Do you want to be judged by 12 or carried by 6?

“I have a very strict gun control policy. If there is a gun around, I want to be in control of it.”

—Clint Eastwood

“There are no dangerous weapons. There are only dangerous men.”

—Robert Heinlein

“A man’s rights rest in 3 boxes. The ballot box, the jury box, and the cartridge box.”

—Frederick Douglas

This is all very serious business, and when a shooting happens, many people may “beat the rap but not the ride.”

Ethics and the Law: Don’t Take Your Guns to Town-1