First, please see the comments in the original post on this topic from back in 2011:
http://whyguncontrol.blogspot.com/2011/06/some-people-claim-that-as-chl-in-texas.html#comment-form
This is a long
read, but worth it. It concerns a recent case about a CHL
that got arrested for carrying an "illegal knife" despite the (vague)
language in Section 46.02 that seems to be exempting CHLs.
This guy just took a trip through the bowels
of the legal system and got off, but (I am assuming) at the expense of *BIG* legal bills. And because of the nature of the DA's
dismissal**, he *may* have just set a favorable legal precedent for other CHLs (At least
in Travis County).
The law:
Texas
Penal Code Sec. 46.01. DEFINITIONS
(6) "Illegal knife" means a:
(A) knife with a blade over five and one-half inches;
(A) knife with a blade over five and one-half inches;
(B) hand instrument designed to cut or stab another by being
thrown;
(C) dagger, including but not limited to a dirk, stiletto, and poniard;
(D) bowie knife;
(E) sword; or
(F) spear.
(C) dagger, including but not limited to a dirk, stiletto, and poniard;
(D) bowie knife;
(E) sword; or
(F) spear.
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 that is owned by the person or under the person's control.
(2) inside of or directly en route to a motor vehicle that is owned by the person or under the person's control.
(b) Except as provided by Subsection (c), an offense under this
section is a Class A misdemeanor.
Sec. 46.15. NONAPPLICABILITY.
(b) Section 46.02 does not apply to a person who:
(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;
Problem: There has been
some debate about whether 46.15 applied to CHLs for all "illegal
weapons" or just handguns. The essentially
law says ""unless you are a CHL carrying a handgun" But does not SPECIFICALLY say that ONLY the
handgun is exempted. Sec 46.35 b doesn't say what PART of 46.02 does not apply, just "section 46.02" inferring that none of it applies; Whereas the intent was probably only to allow handguns (and some judges may rule that way), the actual language seems to say otherwise.
** Per the defending attorney:
An "in the
interests of justice" dismissal signifies that the prosecutor
recognizes that he is dismissing the case, not merely because he can't prove
the case, but because you are in fact innocent of the offense.
Short
version:
What was done?
Walk though The Texas State Capitol with a 6.25 inch bladed knife in the spirit of demonstrating two things.
Walk though The Texas State Capitol with a 6.25 inch bladed knife in the spirit of demonstrating two things.
·
Open carry was being
argued in a public forum in front of a Texas State House committee. I was
demonstrating the lawful carry of a large knife in the open in support of open
carry of handguns.
·
Section 46.02 does not
apply to a person who: 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;
What happened?
·
An arrest and charges
for UCW were filed, I spent the night in jail and faced prosecution.
At this point we had an opportunity to change the law. Who knew where it'd go but it was THE chance to codify that 46.02 does not apply in this situation.
I could have gone to the media. Sorry folks my employer would have been in a bind at that point and I didn't want to be tried by the media. Now there was the RISK that the story could have broke and gotten in front of everyone but it didn't.
The Result.
·
ADA of Travis County
dropped the charges after my lawyer showed them the law. According
to my attorney the ADA looked over the law (46.02) and saw that the law was on
my side.
·
Ok,
we called them on it by the merit of the law and the ADA decided not to pursue
this further.
·
The
CHL license is still suspended. Asking
for it back now...
The long version (In the defendants words):
I Didn't Beat the Ride -
Illegal Knife + CHL + Concealed Handgun = Jail + Charges (dismissed)
Ok, folks here's the point where I put a chapter and verse out on
the Internet with enough information for the curious to do a virtual anal probe
of my life. Please use lube.
So Travis County, DPS were the arresting officers.
Proof this really happened is easy to obtain.
Thursday March 14th I road to the Texas State Capitol building on my motorcycle. In Austin I planed to testify in support of a handful of bills that would allow the carry of handguns on college campuses and open carry of handguns by a Concealed Handgun Licensee (CHL).
I was carrying my handgun, concealed, and pocket knife and a knife with a blade of 6.25 inches long in a sheath on my belt, open to the world.
In the Texas State Capitol building there are two lines to enter. The metal detector line and the Concealed Handgun Licensee line that lets anyone with a license bypass the metal detectors. I used the CHL line, no issues.
Texas law refers to a knife with a blade over 5.5 inches long as an "illegal knife" that you generally can't have on your person except for a few exceptions such as travelling, hunting, fishing, at my home or place of business.
The law also states it doesn't apply to a person who is carrying a concealed handgun and a valid concealed handgun license (CHL). The crux of that is that the majority LEOs don't know or, as I found out, don't choose to acknowledge the plainness of this exception. I thought I stood a good chance of successfully disputing an arrest by pointing out the law in the event I was stopped.
Once at the building I passed though security, with my CHL, and went around looking for the meeting room. I asked no fewer than 4 DPS officers around the capitol building where the room was located. My sense of direction sucks, it's easy to get turned around in that building as well.
I went into the meeting, passing a group of 3 DPS officers, found out I had to register outside the room, went out passing them again, registered, and went back in and listened to the folks testifying for and against the campus carry bills.
About an hr later, mother nature called. I found a polite time to leave, when others were also leaving and I left the room.
Outside there were several DPS officers waiting... For me.
As far as not talking to the police.
I kept my comments, as much as I could, to the point of pointing out the law. When they asked how long the knife is I said it was a good idea to measure it at that point they did.
I spent the next couple of hours showing them where the law stated I was OK, them scratching their heads and even had a lively debate among them with 2 out of 12 folks agreeing with me and the others wanting to book me and let the DA figure it out. They checked my CHL status, my DL took my knifes, gun and holsters and sheath.
They did allow me to pee. I was sweating it though for a bit.
The knife was measured and measured wrong at 7.25 inches on a paper cutter that started at one inch on the ruler.
They then printed out 46.15 (b) 1-8 that had been hand hightlited at the top
(b) Section 46.02 does not apply to a person who:
And then down to the bottom of the page was also highlited.
(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;
I was then asked if this is what I was referring to. I said yes, that's it. May I leave now?
I was then told I was ignorant of the law, the section in question only is valid for handguns.
I got arrested, booked in jail, charged with Unlawfully Carrying a Weapon (For my knife not my gun) and spent the night there till I was approved for personal bail. I got some sleep at the jail (Don't ask me how), got out at about 3:30am and then found my motorcycle and drove home.
This was a Class A Misdemeanour charge. I have been notified under section 411.187 that I may no longer carry and have turned in my CHL.
I've hired a lawyer.
In selecting a lawyer I narrowed it down to five, then sent a brief description of the charges in an email. All either emailed or called back. Only one I think really understood.
First email from him:
"Mr. [Matefrio],
Are you saying you were: (1) carrying your concealed handgun license; and (2) carrying a concealed handgun; and (3) carrying a knife with a blade over five and one-half inches?
Thank you for contacting me."
My Response: "That is correct."
Second email:
Mr. [Matefrio],
In that case you have an interesting case of statutory interpretation, one that the authors of 46.15(b)(6) probably did not anticipate, but one that appears to have merit.
He also seems to be very familiar with guns personally.
In further conversations he's stated it's really not even statutory interpretation as to have a case of that the law would need to be vague, in this case he believes it's not vague at all.
The plan now is to file a motion to suppress the arrest with the judge. Most likely the DA will appeal the motion even if the judge grants my request. In that case I hire an appeals lawyer and we go though the process again.
I've communicated to my lawyer that the desired outcome of all this is that myself and others don't get caught up in this same situation.
There are no guarantees this will forge that path. But I think I've got an opportunity to make a trail head.
The knife:
So Travis County, DPS were the arresting officers.
Proof this really happened is easy to obtain.
Thursday March 14th I road to the Texas State Capitol building on my motorcycle. In Austin I planed to testify in support of a handful of bills that would allow the carry of handguns on college campuses and open carry of handguns by a Concealed Handgun Licensee (CHL).
I was carrying my handgun, concealed, and pocket knife and a knife with a blade of 6.25 inches long in a sheath on my belt, open to the world.
In the Texas State Capitol building there are two lines to enter. The metal detector line and the Concealed Handgun Licensee line that lets anyone with a license bypass the metal detectors. I used the CHL line, no issues.
Texas law refers to a knife with a blade over 5.5 inches long as an "illegal knife" that you generally can't have on your person except for a few exceptions such as travelling, hunting, fishing, at my home or place of business.
The law also states it doesn't apply to a person who is carrying a concealed handgun and a valid concealed handgun license (CHL). The crux of that is that the majority LEOs don't know or, as I found out, don't choose to acknowledge the plainness of this exception. I thought I stood a good chance of successfully disputing an arrest by pointing out the law in the event I was stopped.
Once at the building I passed though security, with my CHL, and went around looking for the meeting room. I asked no fewer than 4 DPS officers around the capitol building where the room was located. My sense of direction sucks, it's easy to get turned around in that building as well.
I went into the meeting, passing a group of 3 DPS officers, found out I had to register outside the room, went out passing them again, registered, and went back in and listened to the folks testifying for and against the campus carry bills.
About an hr later, mother nature called. I found a polite time to leave, when others were also leaving and I left the room.
Outside there were several DPS officers waiting... For me.
As far as not talking to the police.
I kept my comments, as much as I could, to the point of pointing out the law. When they asked how long the knife is I said it was a good idea to measure it at that point they did.
I spent the next couple of hours showing them where the law stated I was OK, them scratching their heads and even had a lively debate among them with 2 out of 12 folks agreeing with me and the others wanting to book me and let the DA figure it out. They checked my CHL status, my DL took my knifes, gun and holsters and sheath.
They did allow me to pee. I was sweating it though for a bit.
The knife was measured and measured wrong at 7.25 inches on a paper cutter that started at one inch on the ruler.
They then printed out 46.15 (b) 1-8 that had been hand hightlited at the top
(b) Section 46.02 does not apply to a person who:
And then down to the bottom of the page was also highlited.
(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;
I was then asked if this is what I was referring to. I said yes, that's it. May I leave now?
I was then told I was ignorant of the law, the section in question only is valid for handguns.
I got arrested, booked in jail, charged with Unlawfully Carrying a Weapon (For my knife not my gun) and spent the night there till I was approved for personal bail. I got some sleep at the jail (Don't ask me how), got out at about 3:30am and then found my motorcycle and drove home.
This was a Class A Misdemeanour charge. I have been notified under section 411.187 that I may no longer carry and have turned in my CHL.
I've hired a lawyer.
In selecting a lawyer I narrowed it down to five, then sent a brief description of the charges in an email. All either emailed or called back. Only one I think really understood.
First email from him:
"Mr. [Matefrio],
Are you saying you were: (1) carrying your concealed handgun license; and (2) carrying a concealed handgun; and (3) carrying a knife with a blade over five and one-half inches?
Thank you for contacting me."
My Response: "That is correct."
Second email:
Mr. [Matefrio],
In that case you have an interesting case of statutory interpretation, one that the authors of 46.15(b)(6) probably did not anticipate, but one that appears to have merit.
He also seems to be very familiar with guns personally.
In further conversations he's stated it's really not even statutory interpretation as to have a case of that the law would need to be vague, in this case he believes it's not vague at all.
The plan now is to file a motion to suppress the arrest with the judge. Most likely the DA will appeal the motion even if the judge grants my request. In that case I hire an appeals lawyer and we go though the process again.
I've communicated to my lawyer that the desired outcome of all this is that myself and others don't get caught up in this same situation.
There are no guarantees this will forge that path. But I think I've got an opportunity to make a trail head.
The knife:
The
case was dismissed:
Emailed my lawyer, Here is his response.
An "in the interests of justice" dismissal signifies that the prosecutor recognizes that he is dismissing the case, not merely because he can't prove the case, but because you are in fact innocent of the offense. It's the difference between someone who is "not guilty" and someone who is actually innocent of the offense alleged. Put another way, the prosecutor's job is to do justice. The prosecutor found in this case that justice was best served by dismissing the case against you.
Other reasons for dismissal, by contrast, include "Defendant entered a plea in a different case," or "Defendant completed counseling," or "the evidence is insufficient" (i.e., we think the defendant is guilty, but we can't prove it), or "the case has been refiled" (i.e., we think the defendant is guilty, but we need to allege it differently), etc.
An "in the interests of justice" dismissal signifies that the prosecutor recognizes that he is dismissing the case, not merely because he can't prove the case, but because you are in fact innocent of the offense. It's the difference between someone who is "not guilty" and someone who is actually innocent of the offense alleged. Put another way, the prosecutor's job is to do justice. The prosecutor found in this case that justice was best served by dismissing the case against you.
Other reasons for dismissal, by contrast, include "Defendant entered a plea in a different case," or "Defendant completed counseling," or "the evidence is insufficient" (i.e., we think the defendant is guilty, but we can't prove it), or "the case has been refiled" (i.e., we think the defendant is guilty, but we need to allege it differently), etc.
They TYPE of dismissal is important. Note there
are many reasons a case is being dismissed, and I got the one that clearly
states I'd done nothing wrong.
This leaves the door wide open to pursue a case
against the Department of Public Safety for wrongful arrest or for violating my
1st Amendment right to speak to the legislative committee.
And now
he's going to sue / file civil suit against the officers:
The reason I'm going to try my best to sue
would be to act as a punitive lesson to anyone arresting a guy like me that it
doesn't come without consequences.
I'm hoping to get a lawyer that will take the risk and take this case the hopes of a positive result. Paying a lawyer to do this up front may not be in the cards and honestly I want the lawyer to have skin in the game.
I'm hoping to get a lawyer that will take the risk and take this case the hopes of a positive result. Paying a lawyer to do this up front may not be in the cards and honestly I want the lawyer to have skin in the game.
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