A letter to "Texans for Gun Safety"

[Liko81]

This is a letter I sent to the president of the organization regarding a quote by one of their spokemen being spread through the media. The article can be read at http://www.txcn.com/sharedcontent/dws/t ... 369a1.html Emphasis is mine for this post and was not included in the e-mail:

Dear Ms. Siemers,

I wish to comment on a quote in an article published by Texas Cable News (txcn.com), in which a Mr. Richard Leal, affiliated with your group, was quoted regarding open carry of a firearm as saying, “I don’t need to be intimidated by it. That’s not your purpose to intimidate me. But regardless of what your purpose is, it’s how I react to the situation (that counts)�. This statement is quite categorically wrong. The applicable law in Texas is Section 42.01(a)(8), stating that disorderly conduct is committed if a person “displays a firearm or other deadly weapon in a public place in a manner calculated to alarm�. Whether anyone was in fact alarmed by the sight of a weapon is immaterial; the test is that the actor intended his action to cause alarm.

Mr. Leal himself concedes that it is not the carrier’s purpose to intimidate, thus contradicting his next claim. Further refutation of Mr. Leal’s statement comes from Florida v. J.L., 529 U.S. 266 (2000), where the Supreme Court specifically states in unanimous opinion that a report of a gun is not, and cannot be, reasonable articulable suspicion that a crime has been or is about to occur. Further, the Texas 5th Circuit Court of Appeals recently ruled in Grieve v. State of Texas, regarding a weapon “displayed� on an apartment balcony, “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�. Both the Supreme Court and Texas 5th Circuit CoA thus hold that Mr. Leal is wrong; the fact that someone was alarmed enough to inform police about the carry of a weapon, even if such carry would be illegal and even if the report is true, does not constitute reasonable suspicion of any crime, disorderly conduct included.

Mr. Leal’s statements can be reduced to “seeing a gun carried by another person scares me, therefore I declare the carry of a gun to be wrong�. Mr. Leal is quite mistaken if he believes he has the power to make and enforce that declaration overriding a recognized human right to self-defense and to free expression. Such a view is selfish in the extreme, far more so than any perceived slight Mr. Leal may infer from the lawful carry of a weapon. I would advise him, and you as his superior in this organization, to correct his views regarding this topic, and to refrain from making such obviously fallacious statements to the press in future.

I just had to make that last jab; I am, very politely and respectfully, telling them to shut up as pretty much everything they say is wrong.

[Rokyudai]

Well written and well done!


Rok

[KBCraig]

Good job, Liko!

[HerbM]

Very nice job.

[The Annoyed Man]

Very nice job.

+1

[lrb111]

Well, done. That's the kind of rebuttal we need more of.

[E10]

The sad thing is that we have a lot of people in our society who go about seeking out ways to be offended or intimidated. Then they think the rest of us need to change our behavior, when what needs to change is their attitude.

[LedJedi]

wow, am i impressed. way to go :) I wish more folks would make such a stand.

[BigBlueDodge]

Nice job Liko. I love reading your posts because I learn something everytime.

I have one question.... do you write resumes? With your command of the language, and familiarity with the law, I'm pretty sure you convince my future employer to pay me 2-3 times what I'm worth :)

[KD5NRH]

Texas 5th Circuit Court of Appeals recently ruled in Grieve v. State of Texas,

Do you happen to have a link to this one?

[Liko81]

Texas 5th Circuit Court of Appeals recently ruled in Grieve v. State of Texas,

Do you happen to have a link to this one?

http://5thcoa.courts.state.tx.us/cgi-bi ... +D+8562327

It may or may not work; if it does not, go to http://5thcoa.courts.state.tx.us and use the search function to look up Scott Christopher Grieve in the text of opinions.

In summary, police were called to an apartment complex because of reports that a man was brandishing a gun. No specifics were given over the phone and the police did not see any crime being committed when they arrived. They were able to establish that the weapon was displayed from the balcony of an apartment. They knocked on Grieve's door, who answered, and when asked about the gun responded that it was an airgun. He asked his roommate, who owned it, to bring it up so the police could see it. At that point the officers barged in, detained both roommates, and searched the apartment, discovering a marijuana plant and methamphetamines in Grieve's room.

He successfully overturned his conviction on appeal by arguing that the State failed to establish reasonable suspicion of a crime to warrant an interview, because no information about the mode of carry, or the description of the balcony as to whether it would be considered a public or private place, was given, and thus a simple MWAG call is not by itself probable cause for a search.

[KD5NRH]

Texas 5th Circuit Court of Appeals recently ruled in Grieve v. State of Texas,

Do you happen to have a link to this one?

http://5thcoa.courts.state.tx.us/cgi-bi ... +D+8562327

Interesting; in addition to what appears (to my non-lawyer reading) to be a very slapdash job by an overconfident prosecutor, this makes for a good precedent.

He successfully overturned his conviction on appeal by arguing that the State failed to establish reasonable suspicion of a crime to warrant an interview, because no information about the mode of carry, or the description of the balcony as to whether it would be considered a public or private place, was given, and thus a simple MWAG call is not by itself probable cause for a search.

It's interesting in that the question, rather than "Is MWAG sufficient evidence of DOC?" appears to be, "In this specific case, was there enough evidence to enter without consent?" By not presenting a significant portion of the evidence available to the officers at the time of the entry (the opinion seems to indicate that the dispatch recordings were not presented at the preceding trials, either) in order to establish the latter, (which the recordings may or may not have, but listening to dispatchers often enough, including on calls that I've made, gives me the distinct impression that it is not uncommon for an issue to be somewhat embellished by the dispatcher during this process) the prosecution pretty well earned themselves a precedent on the former question that I'm sure wasn't anything they wanted.

The decision also notes that McCurry was a UTD officer, but not whether this incident occurred on UTD property or off-campus housing; either would likely include in the student housing agreements some provision allowing for entry by university staff under circumstances which might apply here.

[sylus27]

Well put, Liko. Nice to see a letter that says more than, "you're wrong" or "you're stupid for thinking that". That brings us all a little higher in the reader's opinion - we're not all "clinging to guns" cause we're scared.