Three Men ‘Illegally’ Arrested for Openly Carrying ‘Black Powder’ Pistols in Texas –

Three people were reportedly arrested on Friday for openly carrying Civil War-era pistols during a pro-gun protest outside the Texas Capitol. Gun rights activists tell TheBlaze the arrests were unlawful as it is legal in Texas to openly carry a pre-1899 antique firearm.

Terry Louis Holcomb, 44, identified as a Huntsville-area pastor, and Scott Douglas Smith, 50, a military veteran from San Antonio, and Gary Hayes, a quadriplegic, were reportedly arrested by state troopers in Austin and charged with disorderly conduct, which is defined, by law, as an action with a firearm “calculated to alarm.”

However, witnesses say the men, one of which was in a wheelchair, had their “black powder” pistols holstered and weren’t causing alarm in any way. More than a dozen other gun-rights activists openly carrying rifles walked free.

Under Texas law, a gun manufactured before 1899 isn’t even considered a “firearm,” therefore not subject to open carry laws:

(3) “Firearm” means any device designed, made, or adapted to expel a projectile through a barrel by using the energy generated by an explosion or burning substance or any device readily convertible to that use. Firearm does not include a firearm that may have, as an integral part, a folding knife blade or other characteristics of weapons made illegal by this chapter and that is:
(A) an antique or curio firearm manufactured before 1899; or
(B) a replica of an antique or curio firearm manufactured before 1899, but only if the replica does not use rim fire or center fire ammunition.

All three of the arrests were reportedly caught on video and uploaded on YouTube. In the first video, an individual presses police to clarify how the pro-gun activist was carrying his pistol (holstered) in a way “calculated to alarm.”

http://www.theblaze.com/stories/201...hy-pro-gun-group-claims-arrests-were-illegal/

Lots of pictures at the link

This is some serious activism.

Nothing like police arresting a disabled veteran for exercising his constitutional rights.

Kudos to these gentlemen for taking one for the team. They will beat the rap and perhaps the ride will make a difference (even if a dent) overall.

MAC702 said:

They will beat the rap

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Don't know about beating the rap - Austin is Travis County - the bluest in Texas - don't know if the DA would not lie to the Grand Jury about this exception to the law. It might take longer than otherwise unless they've got a great attorney.

I also have a thread about this here:

http://forum.opencarry.org/forums/showthread.php?117316-Texas-Open-Carry-activist-arrested-today

I would like to know how they intend to justify what appears to be an unlawful arrest.

jordanmills said:

I would like to know how they intend to justify what appears to be an unlawful arrest.

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I suspect it will be "emphatically" LOL

Good job gentleman.

Now please seek a good constitutional rights attorney and seek redress in Federal Court file under violation of USC 42 section 1983.

Its a no brainer and your attorneys will recoup all fees from the defendants.

So what is the justification for denying a law abiding citizen his right to bear arms and not be unlawfully arrested for exercise that right? Let's see.

How about you start them at say $2,000,000

Best regards

CCJ

So what is the exact Texas law that says a handgun can't be in view?
All I can find is this law that to me clearly says it can't be in view in a vehicle.

Sec. 46.02. UNLAWFUL CARRYING WEAPONS. (a) A person commits an offense if the person intentionally, knowingly, or recklessly carries on or about his or her person a handgun, illegal knife, or club if the person is not:
(1) on the person's own premises or premises under the person's control; or
(2) inside of or directly en route to a motor vehicle or watercraft that is owned by the person or under the person's control.
(a-1) A person commits an offense if the person intentionally, knowingly, or recklessly carries on or about his or her person a handgun in a motor vehicle or watercraft that is owned by the person or under the person's control at any time in which:
(1) the handgun is in plain view; or

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(Which seems ok to me because if someone can see it out your car window you're probably doing a drive by)

Golden Eagle said:

So what is the exact Texas law that says a handgun can't be in view?
All I can find is this law that to me clearly says it can't be in view in a vehicle.



(Which seems ok to me because if someone can see it out your car window you're probably doing a drive by)

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The part that makes it illegal is the part that says "(a) A person commits an offense if the person intentionally, knowingly, or recklessly carries on or about his or her person a handgun, illegal knife, or club if the person is not:" Everything below that is just exceptions, but the rule is that it's illegal. So, it's illegal unless it's in a vehicle, but then if it's in a vehicle and in plain view it's still illegal. It's pretty convoluted.

So, it's not that it's in view, it's that he had it at all. He was intentionally and/or knowingly carrying on or about his person a handgun - except it supposedly wasn't a handgun as defined in Texas law.

Then if you have a CHL and carry concealed, you have a whole 'nother set of rules elsewhere in the law.

Golden Eagle said:

So what is the exact Texas law that says a handgun can't be in view?
All I can find is this law that to me clearly says it can't be in view in a vehicle.

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The other is 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 fails to conceal the handgun.

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And just to be clear, 46.02 only requires concealment under its limits, which is in a motor vehicle when not on a journey.

For every other instance in which it's legal to carry a handgun, the mode isn't specified. That includes on a journey, on property you own or control, or while engaged in (or en route to and from) porting activity commonly requiring use of a handgun.

KBCraig said:

...And just to be clear, 46.02 only requires concealment under its limits, which is in a motor vehicle when not on a journey....

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I'm in Texas a couple times a year. Do they define "journey?"

I don't recall there being any exception for when someone is on a journey... When I run a search for the keyword 'journey' against the penal code I get nada. Sure you weren't thinking of Arkansas?

stealthyeliminator said:

I don't recall there being any exception for when someone is on a journey... When I run a search for the keyword 'journey' against the penal code I get nada. Sure you weren't thinking of Arkansas?

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You're right, the correct word is "traveling".

MAC702 said:

I'm in Texas a couple times a year. Do they define "journey?"

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No, they don't. There is no statutory nor statewide case law defining "traveling" in Texas. That's why they added the motorist protection act, so that it doesn't matter if you're traveling so long as you're in a motor vehicle you own or control.

But, that's not the only way to travel. People travel by foot, by bicycle, and still by horse and wagon. If one is traveling, there is no requirement that it be concealed, because 46.02 doesn't apply -- exactly the same as it doesn't apply to someone carrying a concealed handgun with a license.

46.15 NONAPPLICABILITY
(b) Section 46.02 does not apply to a person who:
(2) is traveling;
(6) is carrying a concealed handgun and a valid license issued under Subchapter H, Chapter 411, Government Code, to carry a concealed handgun of the same category as the handgun the person is carrying;

KBCraig said:

You're right, the correct word is "traveling".



No, they don't. There is no statutory nor statewide case law defining "traveling" in Texas. That's why they added the motorist protection act, so that it doesn't matter if you're traveling so long as you're in a motor vehicle you own or control.

But, that's not the only way to travel. People travel by foot, by bicycle, and still by horse and wagon. If one is traveling, there is no requirement that it be concealed, because 46.02 doesn't apply -- exactly the same as it doesn't apply to someone carrying a concealed handgun with a license.

46.15 NONAPPLICABILITY
(b) Section 46.02 does not apply to a person who:
(2) is traveling;
(6) is carrying a concealed handgun and a valid license issued under Subchapter H, Chapter 411, Government Code, to carry a concealed handgun of the same category as the handgun the person is carrying;

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I don't think I ever knew that was there :O

they returned all but the black powder revolver... not sure why
https://www.youtube.com/watch?v=h0yiYO7N5fc&feature=em-uploademail

KBCraig said:

You're right, the correct word is "traveling".



No, they don't. There is no statutory nor statewide case law defining "traveling" in Texas. That's why they added the motorist protection act, so that it doesn't matter if you're traveling so long as you're in a motor vehicle you own or control.

But, that's not the only way to travel. People travel by foot, by bicycle, and still by horse and wagon. If one is traveling, there is no requirement that it be concealed, because 46.02 doesn't apply -- exactly the same as it doesn't apply to someone carrying a concealed handgun with a license.

46.15 NONAPPLICABILITY
(b) Section 46.02 does not apply to a person who:
(2) is traveling;
(6) is carrying a concealed handgun and a valid license issued under Subchapter H, Chapter 411, Government Code, to carry a concealed handgun of the same category as the handgun the person is carrying;

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So are saying that if I am travelling on foot between two cities, that I am, under 46.15, able to open carry a pistol and not be subject to 46.02?

We-the-People said:

So are saying that if I am travelling on foot between two cities, that I am, under 46.15, able to open carry a pistol and not be subject to 46.02?

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IANAL.....but.......

If I may rephrase your question slightly , I believe the answer will reveal itself.

"So you are saying that if I am ON FOOT and carrying a concealed pistol and a valid license under Subchapter H, Chapter 411, Government Code, that I am NOT SUBJECT TO the provisions of 46.02 ? "

Answer: YES [ citing 46.15(b)(6) ] IF..... the CHL exception is authenticated by the presentation of a valid CHL.

Answer to your question: YES [ citing 46.15(b)(2) ] IF..... the traveling exception is authenticated by the presentation of indices of legitimate engagement in a process readily recognizable by any reasonably minded person as constituting a journey.

Texas courts have never exhibited any interest in stretching the term "traveling" beyond legitimate engagement in a process that may readily be recognizable by any reasonably minded person as constituting a journey.

As we have seen recently even though a pre-1899 black powder revolver may very well not be a "handgun" - or even a "firearm" for that matter - under Texas law, the burden of proof seems to rest on the person carrying one to be able to present authentication of that fact.

Same "rule of thumb" logic would seem to apply to the traveling exception under 46.15(b)(2).

This is my take away from how one Texas court addressed the "traveling" exception in Moosani v Texas.

www.ptexans.com/moosani.htm

We-the-People said:

So are saying that if I am travelling on foot between two cities, that I am, under 46.15, able to open carry a pistol and not be subject to 46.02?

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It's not just my opinion. It's the law that 46.02 doesn't apply to someone who is travelling. Open or concealed dooesn't matter.

It's the exact same law that makes 46.02 not apply to someone who is carrying a concealed handgun and a valid CHL.

so is it like it is in florida for open carry going to/from or engaged in fishing? meaning, if you stop on your travel for lunch, are you allowed to carry? because in florida, consensus is that if you are not going directly to fishing or coming from fishing, you can not open carry (ie: stopping at walmart on your way to the pier is not included)