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Thread: False arrest and gun confiscation, PD and DA clammed up with shutters closed.

  1. #1
    Regular Member stealthyeliminator's Avatar
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    False arrest and gun confiscation, PD and DA clammed up with shutters closed.

    I have refrained from posting about this story because I didn't have any article to link to, until now.

    http://www.dontcomply.com/stand-with...-its-our-turn/

    It's another one of those take the guns, take the bail money and then bar the doors scenarios.
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    Once he was booked he then found out the charges were a misdemeanor for disorderly conduct due to the display of a firearm ($2,500 bond), and a class 3 felony for a weapon in an unauthorized area ($15,000 bond). He paid $1,800 to bail out and has contacted the police department several times to get a copy of the police report with the charges listed and events of the evening. He’s been repeatedly denied a copy of the report. Joey was advised to go to the District Attorney to get a copy of the report, but the DA secretary told him they did not have to provide him with a copy since the investigation was ongoing and to call back at a later date to speak with the DA. (from link)

    The class 3 felony might be a problem ... unk w/o more details.

  3. #3
    Regular Member Fallschirmjäger's Avatar
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    The officers took cover behind their car doors, weapons drawn and pointed at them, demanding all three get face down on the ground. Joey asked if they were being detained and was answered with another demand to get face down.
    When there's multiple officers with drawn guns blocking your exit and with emergency lights flashing, there isn't much need to ask, ... but it does make it clear.
    (Remember there's a court case where the officer saying, "Come here, I want to talk to you" is merely a request that you can freely ignore.)

    There's a Texas Code for "weapon in unauthorized area"? 46.03?
    "Display of a firearm" isn't gonna fly. The Texas Code is "Display of
    Last edited by Fallschirmjäger; 01-17-2014 at 08:17 PM.

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    Regular Member Fallschirmjäger's Avatar
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    Sec. 46.03. PLACES WEAPONS PROHIBITED.
    (a) A person commits an offense if the person intentionally, knowingly, or recklessly possesses or goes with a firearm, illegal knife, club, or prohibited weapon listed in Section 46.05(a):
    (1) on the physical premises of a school or educational institution, any grounds or building on which an activity sponsored by a school or educational institution is being conducted, or a passenger transportation vehicle of a school or educational institution, whether the school or educational institution is public or private, unless pursuant to written regulations or written authorization of the institution;
    (2) on the premises of a polling place on the day of an election or while early voting is in progress;
    (3) on the premises of any government court or offices utilized by the court, unless pursuant to written regulations or written authorization of the court;
    (4) on the premises of a racetrack;
    (5) in or into a secured area of an airport; or
    (6) within 1,000 feet of premises the location of which is designated by the Texas Department of Criminal Justice as a place of execution under Article 43.19, Code of Criminal Procedure, on a day that a sentence of death is set to be imposed on the designated premises and the person received notice that:
    (A) going within 1,000 feet of the premises with a weapon listed under this subsection was prohibited; or
    (B) possessing a weapon listed under this subsection within 1,000 feet of the premises was prohibited.
    (b) It is a defense to prosecution under Subsections (a)(1)-(4) that the actor possessed a firearm while in the actual discharge of his official duties as a member of the armed forces or national guard or a guard employed by a penal institution, or an officer of the court.
    (c) In this section:
    (1) "Premises" has the meaning assigned by Section 46.035.
    (2) "Secured area" means an area of an airport terminal building to which access is controlled by the inspection of persons and property under federal law.
    (d) It is a defense to prosecution under Subsection (a)(5) that the actor possessed a firearm or club while traveling to or from the actor's place of assignment or in the actual discharge of duties as:
    (1) a member of the armed forces or national guard;
    (2) a guard employed by a penal institution; or
    (3) a security officer commissioned by the Texas Private Security Board if:
    (A) the actor is wearing a distinctive uniform; and
    (B) the firearm or club is in plain view; or
    (4) a security officer who holds a personal protection authorization under Chapter 1702, Occupations Code, provided that the officer is either:
    (A) wearing the uniform of a security officer, including any uniform or apparel described by Section 1702.323(d), Occupations Code, and carrying the officer's firearm in plain view; or
    (B) not wearing the uniform of a security officer and carrying the officer's firearm in a concealed manner.
    (e) It is a defense to prosecution under Subsection (a)(5) that the actor checked all firearms as baggage in accordance with federal or state law or regulations before entering a secured area.
    (f) It is not a defense to prosecution under this section that the actor possessed a handgun and was licensed to carry a concealed handgun under Sub-chapter H, Chapter 411, Government Code.
    (g) An offense under this section is a third degree felony.
    (h) It is a defense to prosecution under Subsection (a)(4) that the actor possessed a firearm or club while traveling to or from the actor's place of assignment or in the actual discharge of duties as a security officer commissioned by the Texas Board of Private Investigators and Private Security Agencies, if:
    (1) the actor is wearing a distinctive uniform; and
    (2) the firearm or club is in plain view.
    (i) It is an exception to the application of Subsection (a)(6) that the actor possessed a firearm or club:
    (1) while in a vehicle being driven on a public road; or
    (2) at the actor's residence or place of employment.
    Last edited by Fallschirmjäger; 01-17-2014 at 08:48 PM.

  5. #5
    Regular Member ProGun Podcast's Avatar
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    stealthyeliminator, this arrest is the event that initiated the CATI Midland/Odessa rally that was shutdown in this thread you posted
    http://forums.opencarry.com/forums/s...eably-assemble

    I am watching this one as closely as I can seeing how it's one county away from me.
    Last edited by ProGun Podcast; 01-17-2014 at 08:29 PM.

  6. #6
    Regular Member Fallschirmjäger's Avatar
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    I'm not going to post all of 40.035
    46.035. UNLAWFUL CARRYING OF HANDGUN BY LICENSE HOLDER. (a) A license holder commits an offense if the license holder carries a handgun on or about the license holder's person under the authority of Subchapter H, Chapter 411, Government Code, and intentionally displays the handgun.

    As you'll note it says "handgun" not long arm, nor rifle. The charge won't even stick past paragraph (a)
    So... that's not happenin'

    Now, 46.03 refers to Texas Penal Code § 46.05 (a) so let's take a look at paragraph (a)...
    § 46.05. PROHIBITED WEAPONS. (a) A person commits an
    offense if he intentionally or knowingly possesses, manufactures,
    transports, repairs, or sells:
    (1) an explosive weapon;
    (2) a machine gun;
    (3) a short-barrel firearm;
    (4) a firearm silencer;
    (5) a switchblade knife;
    (6) knuckles;
    (7) armor-piercing ammunition;
    (8) a chemical dispensing device; or
    (9) a zip gun.
    So, he wasn't carrying any listed item but he did have a firearm in his possession. Was he at a prohibited location, and if so, which one?
    Last edited by Fallschirmjäger; 01-17-2014 at 08:45 PM.

  7. #7
    Regular Member ProGun Podcast's Avatar
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    Quote Originally Posted by Fallschirmjäger View Post
    I'm not going to post all of 40.035
    46.035. UNLAWFUL CARRYING OF HANDGUN BY LICENSE HOLDER. (a) A license holder commits an offense if the license holder carries a handgun on or about the license holder's person under the authority of Subchapter H, Chapter 411, Government Code, and intentionally displays the handgun.

    As you'll note it says "handgun" not long arm, nor rifle. The charge won't even stick past paragraph (a)
    I think the displaying a firearm charge is actually the Disorderly Conduct charge specifically 42.01(a)(8) which essentially is "A person commits an offense if he intentionally or knowingly: displays a firearm or other deadly weapon in a public place in a manner calculated to alarm"

    "I believe the felony will be based on the fact there is a school between Joey's house and the Dairy Queen."
    Correction, After speaking with someone else they told that they think what I thought was a school building (not used with children) is actually a former school property that is now privately owned.
    Last edited by ProGun Podcast; 01-17-2014 at 08:54 PM.

  8. #8
    Regular Member Fallschirmjäger's Avatar
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    The response by the District Attorney's office is a bit troubling. They're saying they don't have to provide him with the police report because the investigation (one assumes over whether or not to charge him) is still ongoing. But if the inquiry of whether or not to charge him is ongoing, why was he charged?

    I suspect the attorney's office is stalling, hoping to find something they can justify the charges with as even a cursory reading doesn't support the 'display of firearm' charge that doesn't exist.

    In any case, the report is subject to discovery and he has a right to see those reports as part of his preparation to defend himself against the charges.

  9. #9
    Regular Member stealthyeliminator's Avatar
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    Quote Originally Posted by ProGun Podcast View Post
    stealthyeliminator, this arrest is the event that initiated the CATI Midland/Odessa rally that was shutdown in this thread you posted
    http://forums.opencarry.com/forums/s...eably-assemble

    I am watching this one as closely as I can seeing how it's one county away from me.
    Thanks for the clarification/linkage on that. I have been trying to keep up as best as possible with everything going on.

    All this confusion about the charges - you guys aren't even getting the worst of it. When I first heard of this case, it was being said that he was being charged with discharging the firearm. There is so much misinformation surrounding this case it's hard to know what to believe.

    The weapon in unauthorized area I believe is due to the fact that he was walking behind a courthouse. He was not in the courthouse, however, I believe he was walking along the sidewalk that ran adjacent to the courthouse.

    Edit again: Also note that he was OCing his rifle AND CCing his handgun (with permit)

    Edit: Here is the problem with that...
    Sec. 46.03. PLACES WEAPONS PROHIBITED. (a) A person commits an offense if the person intentionally, knowingly, or recklessly possesses or goes with a firearm, illegal knife, club, or prohibited weapon listed in Section 46.05(a):
    ...
    (3) on the premises of any government court or offices utilized by the court, unless pursuant to written regulations or written authorization of the court;
    ...
    (c) In this section:

    (1) "Premises" has the meaning assigned by Section 46.035.
    ...

    Sec. 46.035. UNLAWFUL CARRYING OF HANDGUN BY LICENSE HOLDER. ...

    (3) "Premises" means a building or a portion of a building. The term does not include any public or private driveway, street, sidewalk or walkway, parking lot, parking garage, or other parking area.
    ...
    Last edited by stealthyeliminator; 01-17-2014 at 09:21 PM.
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  10. #10
    Regular Member ProGun Podcast's Avatar
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    Quote Originally Posted by stealthyeliminator View Post
    Thanks for the clarification/linkage on that. I have been trying to keep up as best as possible with everything going on.

    All this confusion about the charges - you guys aren't even getting the worst of it. When I first heard of this case, it was being said that he was being charged with discharging the firearm. There is so much misinformation surrounding this case it's hard to know what to believe.

    The weapon in unauthorized area I believe is due to the fact that he was walking behind a courthouse. He was not in the courthouse, however, I believe he was walking along the sidewalk that ran adjacent to the courthouse.
    If I understand correctly he lives close to the courthouse, although it is on the other side of his home from the Dairy Queen and cofee shop he visited, although I think passing by it would be the better lit (therefor safest) route to his house. After looking at google street view the building does still look like a school and still has a school zone sign and the cell phone use prohibited sign.

    The School and the Courthouse do not make complete sense under state law as being the basis for the charge. I believe the claim he fired a shot was reported by the local paper, but has not had the original source identified.

    At the rally when it was shutdown someone commented that the LEO dressed in cowboy casual was a US Marshal, I have no idea if that is true but it would support the idea of using the school zone to bust people. Federal law says 1000 feet of a school unless licensed, and the route the rally originally planned to take was the one Joey took prior to his arrest. I do not know if they took this route as I arrived a few minutes before they were shutdown. OCT does have an event scheduled for Feb 23, 2014 in Andrews and I plan to make that one so I can report on it.
    Last edited by ProGun Podcast; 01-17-2014 at 09:34 PM.

  11. #11
    Regular Member Fallschirmjäger's Avatar
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    There are some... inconsistancies... in the charges against the gentleman.
    Last edited by Fallschirmjäger; 02-07-2014 at 08:54 PM.

  12. #12
    Regular Member stealthyeliminator's Avatar
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    Quote Originally Posted by ProGun Podcast View Post
    If I understand correctly he lives close to the courthouse, although it is on the other side of his home from the Dairy Queen and cofee shop he visited, although I think passing by it would be the better lit (therefor safest) route to his house. After looking at google street view the building does still look like a school and still has a school zone sign and the cell phone use prohibited sign.

    I believe the claim he fired a shot was reported by the local paper, but has not had the original source identified.

    At the rally when it was shutdown someone commented that the LEO dressed in cowboy casual was a US Marshal, I have no idea if that is true but it would support the idea of using the school zone to bust people. Federal law says 1000 feet of a school unless licensed, and the route the rally originally planned to take was the one Joey took prior to his arrest. I do not know if they took this route as I arrived a few minutes before they were shutdown. OCT does have an event scheduled for Feb 23, 2014 in Andrews and I plan to make that one so I can report on it.
    Be sure and keep us posted here!
    Advocate freedom please

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    Quote Originally Posted by Fallschirmjäger View Post
    The response by the District Attorney's office is a bit troubling. They're saying they don't have to provide him with the police report because the investigation (one assumes over whether or not to charge him) is still ongoing. But if the inquiry of whether or not to charge him is ongoing, why was he charged?

    I suspect the attorney's office is stalling, hoping to find something they can justify the charges with as even a cursory reading doesn't support the 'display of firearm' charge that doesn't exist.

    In any case, the report is subject to discovery and he has a right to see those reports as part of his preparation to defend himself against the charges.
    The DA's viewpoint is not troubling to me .... I'm sure that they will comply with discovery. Under a FOIA request, it will be denied because the law is written so that the discovery laws are not usurped.

    Actually makes sense.

  14. #14
    Regular Member stealthyeliminator's Avatar
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    Quote Originally Posted by davidmcbeth View Post
    The DA's viewpoint is not troubling to me .... I'm sure that they will comply with discovery. Under a FOIA request, it will be denied because the law is written so that the discovery laws are not usurped.

    Actually makes sense.
    You have confidence that they'll actually follow proper court procedures and rules and laws? I have no such faith. I wouldn't be surprised if they had to be "leveraged" every step of the way.
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    Quote Originally Posted by stealthyeliminator View Post
    You have confidence that they'll actually follow proper court procedures and rules and laws? I have no such faith. I wouldn't be surprised if they had to be "leveraged" every step of the way.
    I think that violating discovery rules and court orders regarding discovery has a much high level of punishment than not complying with FOIA requests.

    Do I have faith in our court system? Minimally. Although every case or trial held under criminal rules where I was a defendant I have won. I think that there should be a criminal punishment for the state when they bring unfounded criminal charges against someone.

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    Regular Member rushcreek2's Avatar
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    It looks to me like the D.A. and LE are hiding out behind a smoke screen while trying to come up with some face saving play.......as well as delay what needs to be an inevitable civil law suit. They absolutely have no case because no offense was committed. The public sidewalk is not the prohibited "premises" of a courthouse, and disorderly conduct did not occur. More Barney Fife. Sad times in Texas. Sue the daylights out of them.

  17. #17
    Regular Member Fallschirmjäger's Avatar
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    Quote Originally Posted by stealthyeliminator View Post
    You have confidence that they'll actually follow proper court procedures and rules and laws? I have no such faith. I wouldn't be surprised if they had to be "leveraged" every step of the way.
    As DM said, nor following the rules for discover is would bite them twice as much as releasing the information that the defendant has a right to.
    Federal Rules of Criminal Procedure
    Title IV Arraignment
    Rule 16 - Discovery and Inspection
    (a) Government's Disclosure.
    (1) Information Subject to Disclosure.
    (E) Documents and Objects. Upon a defendant's request, the government must permit the defendant to inspect and to copy or photograph books, papers, documents, data, photographs, tangible objects, buildings or places, or copies or portions of any of these items, if the item is within the government's possession, custody, or control and:
    (i) the item is material to preparing the defense;
    (ii) the government intends to use the item in its case-in-chief at trial; or
    (iii) the item was obtained from or belongs to the defendant.

    The amendments and explanations are longer than the code itself, so tread carefully when perusing.
    Last edited by Fallschirmjäger; 01-18-2014 at 04:50 PM.

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    Discovery is not equal ... state v federal.

    In state court discovery is more limited than in federal.

    And judges in federal court don't like litigants playing games in federal court whereas in state court its a freaking nightmare.

  19. #19
    Regular Member Fallschirmjäger's Avatar
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    Criminal Discovery in Texas—2014: The Beginning of a Brave New World of Fairness This may be of interest then as we're past January 1st.


    CODE OF CRIMINAL PROCEDURE
    TITLE 1. CODE OF CRIMINAL PROCEDURE
    CHAPTER 39. DEPOSITIONS AND DISCOVERY
    Art. 39.14. DISCOVERY. (a) Upon motion of the defendant showing good cause therefor and upon notice to the other parties, except as provided by Article 39.15, the court in which an action is pending shall order the State before or during trial of a criminal action therein pending or on trial to produce and permit the inspection and copying or photographing by or on behalf of the defendant of any designated documents, papers, written statement of the defendant, (except written statements of witnesses and except the work product of counsel in the case and their investigators and their notes or report), books, accounts, letters, photographs, objects or tangible things not privileged, which constitute or contain evidence material to any matter involved in the action and which are in the possession, custody or control of the State or any of its agencies. The order shall specify the time, place and manner of making the inspection and taking the copies and photographs of any of the aforementioned documents or tangible evidence; provided, however, that the rights herein granted shall not extend to written communications between the State or any of its agents or representatives or employees. Nothing in this Act shall authorize the removal of such evidence from the possession of the State, and any inspection shall be in the presence of a representative of the State.

    (b) On motion of a party and on notice to the other parties, the court in which an action is pending may order one or more of the other parties to disclose to the party making the motion the name and address of each person the other party may use at trial to present evidence under Rules 702, 703, and 705, Texas Rules of Evidence. The court shall specify in the order the time and manner in which the other party must make the disclosure to the moving party, but in specifying the time in which the other party shall make disclosure the court shall require the other party to make the disclosure not later than the 20th day before the date the trial begins.

  20. #20
    Regular Member Fallschirmjäger's Avatar
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    Were I the gentleman in question, I'd be filing a 42 U.S. Code § 1983 civil suit. Where 1983 lawsuits heard?
    Last edited by Fallschirmjäger; 01-18-2014 at 06:01 PM.

  21. #21
    Regular Member rushcreek2's Avatar
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    Quote Originally Posted by Fallschirmjäger View Post
    Were I the gentleman in question, I'd be filing a 42 U.S. Code § 1983 civil suit. Where 1983 lawsuits heard?
    Precisely. This is typical of LE damage control behavior. They have no case. No crime committed. Now ..how to best try to cover their blunder.

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