Open Carry Case In Texas
BY Herschel Smith
11 years, 5 months ago
Walking along Goforth Road in Buda last week, two young adults carrying rifles on their backs created quite a stir. But the aftermath may be even more controversial.
Part of a group call Open Carry Texas, which, on the internet, seems to be associated with Opencarry.org, the two young adults were trying to make a statement, videotaping their interaction with police and posting it on YouTube.
What statement? That, by law, they are allowed to openly carry long guns in Texas.
The video interaction between Buda police and the weapons-carriers included lessons for all involved.
Last week, Buda Police Officer Alex Fernandez, who arrived on scene at 5:27 p.m. to investigate a call for suspicious circumstances, found himself the target of a nationwide movement to test Texas’s open carry laws. The individuals, one male, one female, videotaped the interaction with the officer and a Hays County Constable who arrived as backup.
Buda Police Chief Bo Kidd confirmed that he received a call from a concerned citizen that there were two people walking along Goforth Road with long guns strapped to their back. In addition, a call was made to the Hays County Sheriff’s 911 center about the guns.
As the scene opened up, as shown on the video, Fernandez approached the individuals and initiated the conversation by asking for their identification.
“You got a driver’s license or ID?” he asked.
The male said, “Um, I choose not to present that to you, officer.”
Fernandez replied, “Just to let you know, you have every right to do that, you also have one thing – let me tell you right now, if you fail to identify to a police officer, you can also get arrested for that, OK? Do you have a DL or ID?”
“I understand what they are promoting (2nd Amendment/Right to Bear Arms), but I think most reasonable people would disagree with the manner in which they are going about this,” Kidd said.
Kidd said he thought the manner in which the confrontation took place would have worked better as an educational experience if the protesters had simply let his office know they were going to be walking around with long guns.
One commenter wrote:
“The cop says his reasoning for detaining them is ‘suspicious activity.’ Brown v. Texas, 443 U.S. 47 (1979) ruled that suspicious activity does not satisfy the requirement to detain and demand ID. Instead the officer must suspect you of a specific crime, which he can articulate and substantiate with objective facts. The exercise of a right cannot be converted into reasonable suspicion of a crime.”
I don’t understand the notion that someone exercising a right must inform the local law enforcement. Do street preachers tell the police that they’re going to be speaking? Besides, the intent of this effort is to make it commonplace to carry long guns (and I would also observe that I have commented numerous times about the lack of open carry in Texas and South Carolina, saying that it is an artifact of Jim Crow laws). It was, after all, commonplace to carry long guns in Colonial times.
As to whether the police had a right to demand identification, the officer was wrong and the commenter is right. Texas has a stop and identify statute of sorts, but it’s very restrictive, and it must be a valid and defensible “Terry Stop” (i.e., where the person is suspected of having committed a crime) in order to constitutionally effect the detainment.
I think the police ought to get used to this happening and get their facts straight and protocol in order. Open carry advocates have the law on their side, and this isn’t the last time this is going to happen.
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On July 22, 2013 at 2:01 pm, Mark Matis said:
Do you STILL actually think that “Law Enforcement” gives a damn whether Mere Citizens “have the law on their side“? When have you EVER seen such a fact make any difference in the actions by “Law Enforcement”? And when have you ever seen “Law Enforcement” actually PAY for ignoring that fact? And judgements paid to the victims with taxpayer dollars do NOT count…
On August 4, 2013 at 10:17 am, Julie Cochrane said:
A long time ago, before Georgia lawmakers improved the language of our concealed carry law, my ex was harassed by a cop from a local elite squad because someone saw him “printing.” He showed his carry permit, and the cop made a lot of noise about how the permit did not legally allow him to carry concealed. The law was phrased awkwardly, and left room for a BS interpretation by idjits who wanted to BS. He told my then-husband that he was “lucky I don’t need to make a case today.”
I, being a bit of a busybody, called the cop’s boss and told him what happened. I declined to file a complaint with internal affairs, said I didn’t want to get the cop in trouble, I just wanted his chief to better inform him on the law. I said that if the cop had arrested my partner it would have been a hassle and an embarrassment for all involved, and I wanted to head off a potential problem for somebody else and the department before it happened.
The chief thanked me and made sure I had his name and number and said, “And you call me and let me know if your husband experiences any kind of retaliation over this.”
I thanked him and said I would.
He did run into the cop again, and the cop looked at him kind of funny, but didn’t say anything and let him alone. We also called and followed up, up the food chain, and found out where the bad interpretation was coming from–gun-hostile people in the state attorney general’s office. It wasn’t just one under-educated cop.
So we shared the information around and a bunch of people, with varying degrees of politeness, let our legislators and the governor know what was happening. The governor asked the AG for an official letter stating his office’s official interpretation of the law. Then the legislature changed the wording of the law, and kept changing it periodically until the gun-hostile folks in the bureaucracy had zero wiggle room left.
But the most important part of the story is–when the problem first happened, I was polite to the chief and the chief was reasonable and reeled his guy in.
Not all cops are bad cops. The chief was a good cop, and the cop on the ground wasn’t a bad cop, he was just a victim of a bureaucracy getting sneaky with deliberate misinterpretation of a reasonably clear law.
The chief had the sense to get his department out of the middle of the mess and let it be resolved above his pay grade.
On August 4, 2013 at 10:28 am, Julie Cochrane said:
Moral of the story: When a good citizen, doing something legal, has a problem with a cop, frequently the cop has been misinformed as to the law. Figure out where the misinformation is coming from, and deal with THEM.
On August 4, 2013 at 10:45 am, Julie Cochrane said:
On a “stop and identify,” frequently you can jump start the cop’s brain thinking back to his training if you ask him, “What’s your reasonable suspicion for stopping me?”
“Okay, walking around with a long gun strapped to my back is *legal*. So what was your *reasonable* suspicion?” And if he gives you one, go ahead and show him your ID (if you don’t have ID on you, tell him your real name). The point isn’t to withhold your ID, it’s to get him to think clearly before stopping people.
Sometimes there may really be reason to suspect you, even though you’ve done nothing wrong. You could legitimately fit a (good) description for something illegal going on near you that you don’t know about–bad luck happens.
I saw a great link once to a video montage of people declining to cooperate with catch-all roadblocks, showing their interactions with the cops. There were really good examples of talking the cop through the realization that he doesn’t actually have reasonable suspicion to stop you.
On August 4, 2013 at 11:14 am, Jim Harris said:
Good points above. A lot of the bureaucratic stupidity that occurs is not ( … necessarily … ) because bureaucrats are stupid. They just feel forced to do certain things because of poor wording of law and regulation. They are caught with having to stick their neck out if they “use common sense” because they are vulnerable themselves if they do.
Add to that the agendas of some above them — it can be lose-lose all the way around.
(Doesn’t mean that we shouldn’t challenge it though!! )
On August 5, 2013 at 2:52 pm, Federale said:
The advantage of given the locals a heads up is that when the Nellies call in, the dispatcher can calmly explain that it is legal. Therefore word gets around and fewer people call in and the behavior gets normalized.
On August 5, 2013 at 3:10 pm, Herschel Smith said:
Julie, my problem with what you’re saying is that unless I am suspected of committing a crime, the LEO has no right to my identity or other personal information. That’s why if I open carry in my home state of N.C. I will carry my CHP with me, but I will never present it voluntarily to a LEO. He has no right to it.
On February 8, 2014 at 2:33 am, thenewislamicprophet said:
http://comeandtakeitamerica.com/2013/11/29/conversation-with-buda-pd/comment-page-1/#comment-625
Talk about “People That Don’t Fucking Get It”. Officer Alex Fernandez is merely a grunt-level operative. We don’t really expect him to understand the finer points in these situations. We do however expect PAID FUCKING MANAGEMENT to have a fucking clue.
This “Kidd” dipshit obviously doesn’t have one. Who’s tax dollars are paying for this dumbass to be in charge of Fernandez, anyways? What dumbass is paying for this level of retarded incompetence? Oh yeah, that’s me. And you too. What a bunch of dumbasses we are.
Here’s his retardation:
“I understand what they are promoting (2nd Amendment/Right to Bear Arms), but I think most reasonable people would disagree with the manner in which they are going about this,” Kidd said.
Kidd said he thought the manner in which the confrontation took place would have worked better as an educational experience if the protesters had simply let his office know they were going to be walking around with long guns.
“most reasonable people” are too scared and too stupid to know or care about the degree to which the United States has devolved into a Police State, and thanks to dumbfucks like Sheriff Kidd, they just got a little more stupid. You see, he takes taxpayers money, the results of working people’s life’s labors, and he turns them into propaganda that keeps them retarded an unaware.
Let’s take a “vote” on which Constitutional Rights people do and do not have, let’s do an opinion poll on how those Rights ought to be interpreted, and then let’s let the retarded Sheriff of Bumfuck County decide how those Rights ought to be asserted.
I have a better idea, Kidd, you retarded motherfucker. How about instead of appealing to the unwashed masses in order to justify your, and your Police Officers failure to understand both the spirit and the letter of Texas Law and the US Constitution, and enforce both accordingly, how about instead you educate the public on what happens when two retards in Bumfuck County get uniforms, badges, guns and authority given to them by the American People, and the two retards decide that they OWN that power, and use it any way they please.
Here’s the “educational experience” you referred to. We fire BOTH of your retarded asses. You, the dumbfuck retard that you are, interpreting law and the constitution based on popular opinion, and that dumbfuck retard Fernandez you have out in the field, enforcing your retarded will on the people that gave you that power. We’ll take it back, dumbass, and your retirement pension too, and you can spend the rest of your life working for the NSA, tape-recording politician’s phone conversations and then blackmailing them with the information in order to get them to vote for things like Socialized Medicine, er- I mean Affordable Health Care, and the Patriot Act, etc… ad infinitum…