Original post, July 3, 2013.
Sergeant John Samples of the Little Elm Police Department was informed that Zach Horton was planning to do an open carry walk with a long arm in his neighborhood and decided to stop by and talk to him about it.
Unfortunately for Sgt. Samples, he doesn’t know the requirements of the law. Under Texas law, open carry of a handgun is a criminal offense, but open carry of a rifle or shotgun is not, unless it is carried in a manner “calculated to alarm.” To Sgt. Samples, this means if the police receive one single call, it has alarmed someone, and the individual has committed an offense.
This is not the case.
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.
Grieve v. State, No. 05-07-00156-CR, No. 05-07-00157-CR, 2008 Tex. App. LEXIS 3756, at *9 (Tex. App.–Dallas 2008, no pet.) (not designated for publication).
As noted above, there has to be more than just a mere call for service to meet the elements of the offense. It has to be shown that it was display in a manner calculated to alarm. It takes some form of threatening action, not merely the possession of the long arm in plain view.
This is not new, but has been the law in Texas for over 100 years. See King v. Brown, 94 S.W. 328, 330 (Tex. 1906) (“The wanton discharge of firearms in a public road was calculated to alarm the people in nearby residences.”); Jones v. State, 130 S.W. 1001 (Tex. Crim. App. 1910) (“displayed a pistol in a manner well calculated to disturb the peace of those to whom it was exhibited in a threatening manner”); Sparkman v. Peoples Nat’l Bank, 501 S.W.2d 739, 743 (Tex. Civ. App.–Tyler 1973, writ ref’d n.r.e.) (manner of carrying a shotgun was designed to alarm or frighten people present at a foreclosure sale Sparkman wanted to stop).
Sgt. Samples explained that Little Elm was a safe city, and that this was due to the fact that people do not walk around openly carrying guns. This is understandable from his perspective. Officers today are basically taught that everyone (other than police) are a potential danger, and if they have weapons it is even worse. On top of that, it is not “normal” for people to want to do this, so Sgt. Samples is likely to view Horton as a troublemaker on top of being a potential danger. Note the position of the second officer, how he is standing back – he is in an overwatch position, which is indicative of the fact that they consider Horton dangerous. Also note that the squad cars are not parked in front of the residence, another sign that they consider this to be a dangerous call.
There is also a little bit of possible racism in the discussion. Sgt. Samples uses two examples in the conversation: 1) that just because the First Amendment allows you to use the “N-word” it is not a good idea to do so, and 2) he could understand wanting to carry the long arm if Norton were in the Oak Cliff area of Dallas. The Oak Cliff area is a predominantly minority area of Dallas, which is subtly saying that is more dangerous, presumably due to the minority population.
You’ll also notice that Sgt. Samples is “troubled” that Horton doesn’t just roll over and accept what he is being told by a police officer. Again, this is due to a police mindset – I just told you what to do, I’m a police officer, you have to do what I tell you, even if I’m wrong.
Horton is prominent on the website “Don’t Comply” also known as “Come and Take It America“. This is sort of a whackjob site, with articles on the “Voluntaryist” philosophy, which is just another term for the sovereign citizen-type idiocy that seems to be growing.
On July 3, 2013 I posted on the statements of the Little Elm sergeant who misstated the law on open carry and disorderly conduct.
I identified the citizen as Zach Horton based on several issues. First, the sergeant addresses him as “Mr. Horton.” Second, although the video was posted by Murdoch Pizgatti, a comment from Zach Horton’s sister-in-law states that her brother-in-law uses the name Murdoch. Third, the video appears to be the same house listed in public records at the Denton County Appraisal District as the one owned by Zach Horton’s wife. Fourth, the wife of the subject filming the video bears a strong resemblance to Zach Horton’s wife. Fifth, another Horton identified the subject filming the video as his brother, Murdoch Pizgatti. Sixth, another source stated that Zach Horton ran the Don’t Comply website.
The previous posts have been pulled, but are saved as private drafts if needed due to allegations of defamation. Those claims have no merit, but I can’t afford to delete the posts in the event a case were to be filed. Unfortunately, I don’t have any way to move the pertinent comments from the previous posts to this one.
Normally I could care less what name is used and don’t particularly care to publicize one’s identity. When someone threatens to sue, uses vulgar language, etc., my concern for their privacy drops dramatically.
If Zach or “Murdoch” want to clear this up, they are free to contact me and let me know the actual facts.
- Another Example of Police in Texas not Knowing the Law – Corpus Christi (excoplawstudent.wordpress.com)
- Hundreds of Gunowners Show up in Temple, TX with Loaded Guns At the “Come and Take it” March (intellihub.com)