SA-TX
Centurion
imported post
Original URL: http://www.5thcoa.courts.state.tx.us/cgi-bin/as_web.exe?c05topin.ask+D+402639
Opinion Filed May 22, 2008
Here is the part of the case dealing with disorderly conduct:
[align=center]The State argues the officers had probable cause to believe
evidence of disorderly conduct would be found in appellant's apartment.
A person commits the offense of disorderly conduct if he displays a
firearm in a public place in a manner calculated to alarm. Tex. Penal
Code Ann. § 42.01(a)(8) (Vernon Supp. 2007). A “public place” is any
place to which the public or a substantial group of the public has
access, including common areas of apartment houses. See Tex. Penal Code
Ann. § 1.07(a)(40) (Vernon Supp. 2007). The record shows the
officers responded to a call about someone “displaying” a gun on a
balcony in a different building than appellant's apartment. Based on
“other descriptors and the conversation with the dispatcher,” the
officers determined the gun was displayed on appellant's balcony.
However, the record does not contain any facts regarding the “other
descriptors”, the conversation with the dispatcher, who saw the gun
displayed, the manner in which the gun was displayed, or whether the
balcony was in fact open to public view. Although the State maintains
the fact that someone called the police is sufficient to show the gun
was displayed in a way calculated to cause alarm, we cannot agree. The
mere fact that the police were called is not evidence of the way in
which the gun was displayed. Nor is the mere fact that a person saw a
gun “displayed” on a balcony evidence that the balcony was in a public
place. Without some evidence describing the balcony or the manner in
which the gun was displayed, we cannot conclude there were any facts or
circumstances showing the gun was displayed in a public place in a
manner calculated to alarm. [/align]
I take from this:
1) Someone simply seeing a gun and calling police isn't evidence of "manner calculated to alarm". This should stamp out any lingering fears about someone carrying a long gun in a non-threatening manner in public and being convicted of DC.
2) Their use of display in quotes ("display") might mean that a gun able to be seen isn't "display" for the purposes of the statue. Rather, it "display" may imply out of a holster being actively used, waved, drawing attention to it, etc. This would be helpful for someone openly carrying in a holster on their own property -- as I was this morning while mowing the grass -- if accused of DC.
3) "The manner in which the gun was displayed" is important. See above. Display doesn't mean visible, it means in some sort of active use.
4) Where this really gets fun is with the carry of a pre-1899 handgun. Since that is NOT proscribed by Section 46 of the Penal Code (UCW, prohibited places, tresspass by a license holder, etc.) and this opinion suggests that a DC charge would fail (assuming it was being carried in a non-threatening way) either because of the intent part or since a pre-1899 handgun ISN'T a handgun at all (though it probably still is a "deadly weapon"), is there any charge that has a chance of sticking?
I've love for any TX LEOs reading this to chime in. Is openly carrying a pre-1899 handgun illegal under any Texas statute and if you think so, please post it and your reasoning. If I'm missing something I honestly want to know about it. Also, LEOs, how would you handle a man-with-a-gun call when you discovered him to be an open carrier of a pre-1899 handgun?
Thanks to all, SA-TX
Original URL: http://www.5thcoa.courts.state.tx.us/cgi-bin/as_web.exe?c05topin.ask+D+402639
Opinion Filed May 22, 2008
Here is the part of the case dealing with disorderly conduct:
[align=center]The State argues the officers had probable cause to believe
evidence of disorderly conduct would be found in appellant's apartment.
A person commits the offense of disorderly conduct if he displays a
firearm in a public place in a manner calculated to alarm. Tex. Penal
Code Ann. § 42.01(a)(8) (Vernon Supp. 2007). A “public place” is any
place to which the public or a substantial group of the public has
access, including common areas of apartment houses. See Tex. Penal Code
Ann. § 1.07(a)(40) (Vernon Supp. 2007). The record shows the
officers responded to a call about someone “displaying” a gun on a
balcony in a different building than appellant's apartment. Based on
“other descriptors and the conversation with the dispatcher,” the
officers determined the gun was displayed on appellant's balcony.
However, the record does not contain any facts regarding the “other
descriptors”, the conversation with the dispatcher, who saw the gun
displayed, the manner in which the gun was displayed, or whether the
balcony was in fact open to public view. Although the State maintains
the fact that someone called the police is sufficient to show the gun
was displayed in a way calculated to cause alarm, we cannot agree. The
mere fact that the police were called is not evidence of the way in
which the gun was displayed. Nor is the mere fact that a person saw a
gun “displayed” on a balcony evidence that the balcony was in a public
place. Without some evidence describing the balcony or the manner in
which the gun was displayed, we cannot conclude there were any facts or
circumstances showing the gun was displayed in a public place in a
manner calculated to alarm. [/align]
I take from this:
1) Someone simply seeing a gun and calling police isn't evidence of "manner calculated to alarm". This should stamp out any lingering fears about someone carrying a long gun in a non-threatening manner in public and being convicted of DC.
2) Their use of display in quotes ("display") might mean that a gun able to be seen isn't "display" for the purposes of the statue. Rather, it "display" may imply out of a holster being actively used, waved, drawing attention to it, etc. This would be helpful for someone openly carrying in a holster on their own property -- as I was this morning while mowing the grass -- if accused of DC.
3) "The manner in which the gun was displayed" is important. See above. Display doesn't mean visible, it means in some sort of active use.
4) Where this really gets fun is with the carry of a pre-1899 handgun. Since that is NOT proscribed by Section 46 of the Penal Code (UCW, prohibited places, tresspass by a license holder, etc.) and this opinion suggests that a DC charge would fail (assuming it was being carried in a non-threatening way) either because of the intent part or since a pre-1899 handgun ISN'T a handgun at all (though it probably still is a "deadly weapon"), is there any charge that has a chance of sticking?
I've love for any TX LEOs reading this to chime in. Is openly carrying a pre-1899 handgun illegal under any Texas statute and if you think so, please post it and your reasoning. If I'm missing something I honestly want to know about it. Also, LEOs, how would you handle a man-with-a-gun call when you discovered him to be an open carrier of a pre-1899 handgun?
Thanks to all, SA-TX