San Antonio Ordinance

[jmorris]

I was actually searching for something else when I came across this at http://www.municode.com/resources/gatew ... 508&sid=43. I did a quick search but didn't find any previous messages on it. As I read PC 46.035 this ordinance is invalid.

Sec. 21-157. Carrying of weapons, including concealed handguns, on city-owned premises prohibited; posting of notice.
(a) It is the intent of the city council to prohibit any person other than a commissioned security officer employed by the city and licensed peace officers from carrying or possessing weapons including concealed handguns on city-owned premises, including city-owned buildings, parking garages, lots, and other parking areas but excluding city-owned or operated public parks, streets and sidewalks.
(b) It is the intent of the city council that the term weapon shall include a firearm, handgun, club, illegal knife, knife, and any prohibited weapon listed in Texas Penal Code Section 46.05(a) and have the same meaning as said items are defined in Section 46.01, Texas Penal Code.
(c) The city council directs the city manager, or his designee to post the appropriate signs and such other notice, in accordance with Section 30.05 of the Texas Penal Code (the Criminal Trespass Law), to carry out the city council's above-stated intent.
(d) The city manager is authorized to take all steps reasonable and necessary to deny entry or continued presence on city-owned premises to all such persons possessing weapons including concealed handguns, including prosecution of such violators for the offense of criminal trespass.

[Xander]

Yup, you're right. The ordinance is contrary to state law and invalid.

[mr surveyor]

30.05?





surv

[Venus Pax]

Sounds a bit D.C.-esque to me.

[WildBill]

It appears that this ordinance was passed in 1995. I thought when people took office they swore to uphold the constitution.

[Flatland2D]

Even though it conflicts with the penal code, it is a current law and I would assume you could be justifiably arrested for an offense. Because it is invalid doesn't mean you're immune from it. An unenforceable 30.06 is different because it doesn't comply with the law, but this is the law. You'd have to argue the validity of the ordinance in your criminal defense. Just my speculation.

What do you guys think?

[boomerang]

Even though it conflicts with the penal code, it is a current law and I would assume you could be justifiably arrested for an offense. Because it is invalid doesn't mean you're immune from it. An unenforceable 30.06 is different because it doesn't comply with the law, but this is the law. You'd have to argue the validity of the ordinance in your criminal defense. Just my speculation.

What do you guys think?

I think this San Antonio law is as valid as a theoretical city ordinance prohibiting non-whites from voting in a city.

[bdickens]

Preemtion. There would be no criminal defense, as this ordinance violates State Law. One of you guys in San Antonio needs to PM Chas: he'll tell you what to do.

[Xander]

Even though it conflicts with the penal code, it is a current law and I would assume you could be justifiably arrested for an offense. Because it is invalid doesn't mean you're immune from it. An unenforceable 30.06 is different because it doesn't comply with the law, but this is the law. You'd have to argue the validity of the ordinance in your criminal defense. Just my speculation.

What do you guys think?

What BDickens meant by preemption, is that the state reserves the right to control what ordinances a municipality in Texas can create and enforce, and they control it though a whole set of statues in Chapters 51-54 of the Local Government Code. Municipalities can *not* enact and enforce any ordinance they want to, but only ordinances that meet all of the requirements of the state statutes.

One of these requirements is:

§ 51.012. ORDINANCES AND REGULATIONS. The municipality
may adopt an ordinance, act, law, or regulation, not inconsistent
with state law, that is necessary for the government, interest,
welfare, or good order of the municipality as a body politic.

Since the San Antonio "ordinance" is inconsistent with state law in at least two ways (government owned facilities are specifically prohibited from banning CHLs, and you can't ban CHLs based on 30.05) it isn't a valid or enforcible ordinance in Texas. So no, regardless of what San Antonio says, it is not law. Does this mean you couldn't be arrested? No, you're right, you can always be arrested, whether you've broken a law or not. You could be arrested for passing an invalid 30.06 sign as well. But you could *not* be justifiably arrested, because the ordinance is clearly and commonly known to violate state law. I would think the large majority of police officers would know and recognize this.

What's more, since the ordinance was passed in 1995 as Jim says, that was, I believe, before government owned facilities are specifically prohibited from banning CHLs in state law, so they may know that it's unenforceable, they may not even *try* to enforce it, and they may just be too lazy to have it stricken from the city code.

[pedalman]

IANAL, but I believe that 30.06 was put into effect to stop the shenanigans of cities trying to ban CHL holders under the authority of 30.05.

I've been to the HBG Convention Center, and happily breezed past the "No Guns" signs that cite the 30.05 authority.

I would tend to agree that this "ordinance" is a leftover, since it takes time to remove them. It is oftimes easier to leave them on the books and ignore them.

[Flatland2D]

Since the San Antonio "ordinance" is inconsistent with state law in at least two ways (government owned facilities are specifically prohibited from banning CHLs, and you can't ban CHLs based on 30.05) it isn't a valid or enforcible ordinance in Texas. So no, regardless of what San Antonio says, it is not law. Does this mean you couldn't be arrested? No, you're right, you can always be arrested, whether you've broken a law or not. You could be arrested for passing an invalid 30.06 sign as well. But you could *not* be justifiably arrested, because the ordinance is clearly and commonly known to violate state law. I would think the large majority of police officers would know and recognize this.

What's more, since the ordinance was passed in 1995 as Jim says, that was, I believe, before government owned facilities are specifically prohibited from banning CHLs in state law, so they may know that it's unenforceable, they may not even *try* to enforce it, and they may just be too lazy to have it stricken from the city code.

I guess that's more what I trying to say. You would probably be arrested but not justifiably, and it would be a sticky situation. No offense to the educated LEO's here, but I know not all of them know the difference here.

So hypothetically if you were arrested under this law, how would it go down? Would the state step in and remove the law, or would you have to defend yourself in court and challenge the law there?

[seamusTX]

OK. I am going to break one of my personal rules here.

If you are arrested on a false or unconstitutional charge, it is entirely up to you to pay a lawyer thousands of dollars to defend yourself, unless the NRA or a similar organization decides to come to your aid.

I can't figure out how the NRA chooses the cases that it gets involved in. Generally, they take cases that will make case law. Please note that case law means winning an appeal, not just getting the defendant off in the lowest court.

A legislator cannot intervene in a prosecution or trial. It is almost certainly illegal to try. I don't know that area of law, though.

- Jim

[WildBill]

So hypothetically if you were arrested under this law, how would it go down? Would the state step in and remove the law, or would you have to defend yourself in court and challenge the law there?

It's hard to predict what would happen if you were arrested, but here are a couple of possibilties. First, the "state" can not step in and remove the law. If you were arrested and really lucky and got a DA who knew the local ordinance was bogus he would not file charges and you would go home. If you were arrested and very lucky your lawyer could get the charge dismissed in short order without too much time and money spent. If you did get arrested and were not very lucky and actually had to go to trial you might get lucky and the judge would dismiss the case. By that time would have spent a good bit of your time in your lawyer's office and in court, and you would spent a great deal of money to pay your lawyer.