Officer Fernandez Doesn’t Know Texas Law, Buda, Texas

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And here we go again.  A stop for openly carrying a long arm in Buda, Texas, and Officer Fernandez tells the individual that he is being detained based on a number of calls, and that the individual has to identify himself or he will be arrested for Failure to Identify.

The thing is, the citizen knows the law better than the officer.

Then some fat, plainclothes deputy constable shows up and tells him that if an officer asks for identification, the citizen has to produce identification.  Of course, this is not correct in Texas.  If detained, you do not have to produce identification, you just can’t lie about your name, date of birth, or address.  Tex. Pen. Code Ann. § 38.02.

After getting out of the car, Officer Fernandez is no longer talking about arresting the citizen for failure to ID, but starts saying that if they keep getting calls, it is alarming the public and disorderly conduct.  Again, as we have noted before, it is not.  You have to have more than just phone calls, it has to be carried in a manner calculated to alarm.

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).  The above link has the other cases on this issue.

The Buda PD phone number is 512-312-1001, the Chief of Police is Bo Kidd.

 

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Another Example of Police in Texas not Knowing the Law – Corpus Christi

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Here we go again, with Texas cops not knowing the law.  This time it is out of Corpus Christi and not only one, but two lieutenants are involved.  Here are the four videos of the incident.

Here the user shows that he is videotaping from his own property and that he is openly carrying a holstered pistol.  Texas is not an open carry state, but the statute that covers this is Unlawfully Carrying a Weapon, Tex. Pen. Code Ann. § 46.02.  This law states that: “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 on the person’s own premises or premises under the person’s control….”  Tex. Pen. Code Ann. § 46.02 (Vernon).  At about 5:00 in part 1, the two officers approach and the user (Gloc361) advises them not to enter his property.  The officers then try to tell him that he can’t openly carry a pistol (at 5:26).  This is flat out incorrect.  See Johnson v. State, 269 S.W.2d 406 (Tex. Crim. App. 1954) (“Appellant had the lawful right to carry a pistol on his own premises and this right extended to every part thereof.”); Mireles v. State, 192 S.W. 241, 243 (Tex. Crim. App. 1917) (“Clearly, under the law and evidence, he was not guilty of violating the law in carrying said [weapon] on either the forty acres of tillable land that he had rented from Mr. Roberts nor in Mr. Roberts’ pasture, where he kept his team, and had the right to go to get them as a part of his rented premises….”).  A person can openly carry a handgun on his own property.

It appears that at about 1:00-05 in the second video that the officer makes a comment about notifying Child Protective Services, although the audio is not clear enough for me to be absolutely positive on this.  If she did mention that, then it is wrong on so many levels.  First, the lawful presence of firearms does not pose a danger to the child.  Second, using CPS as a threat for compliance is just vile.  At about 1:45 a third officer tries to tell him that he can wear the gun inside his house, but not outside.  Case law clearly doesn’t support that.  Mireles, 192 S.W. at 243.  In addition, “premises” is not limited to inside of a building.  See Tex. Atty. Gen. Op. No. H-185 (1973) (“The term ‘premises’ has attached to it various meanings, owing to the connection in which it is used, but, generally speaking, the term includes not only buildings, but the lot or land upon which the same are situated.”, citing Merch. & Mfgs.’ Lloyds’ Ins. Exch. et al. v. S. Trading Co. of Texas, 205 S.W. 352 (Tex. Civ. App.–Fort Worth, 1918)).

This is only 15 seconds, and really doesn’t cover much.

Here he talks to two different lieutenants.  The individual asks the lieutenant if he is violating the law.  The first lieutenant to talk to him will flat out not answer his question, but repeats what the other officer stated, that he could not be outside with a sidearm.  When pressed, the lieutenant states that it just “looks odd.”  Last time I checked, “looking odd” was not a violation of the penal statutes of the State of Texas.

At 3:52, Lt. Tim Brown walks up and states that the individual is creating a breach of the peace, causing alarm.  See Tex. Pen. Code Ann. § 46.02  Again, this is not correct according to case law in Texas.  A recent case in Dallas addressed this very issue, stating:

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.

Grieve v. State, 05-07-00156-CR, 2008 WL 2152890 (Tex. App.—Dallas May 22, 2008, no pet.).  See also Bedford v. State, 69 S.W. 158 (Tex. Crim. App. 1902) (if pistol was displayed in a threatening manner, calculated to alarm, it is an offense);Jones v. State, 01-98-00645-CR, 1999 WL 517135 (Tex. App.—Houston [1st Dist.] July 22, 1999, no pet.) (when subject grabbed victim and held her for a time, told her she was his and that she belonged to him, then pulled a knife from his pocket and opened it, he displayed it in a manner calculated to alarm); Biggerstaff v. State, 2 S.W.2d 256 (Tex. Crim. App. 1927) (speaking of the exhibition of deadly weapons or the semblance thereof in an angry and threatening manner calculated to alarm).Lt. Brown, without some evidence of a threatening display of the pistol, you can not show the elements of Disorderly Conduct.  Lt. Brown then compounds the error by demanding identification, and stating that he has the right to know who he is talking to on a police contact.  In fact, he doesn’t.  We discussed this in more depth at this post and this post, but unless he is arrested, he is under absolutely no obligation to identify himself to police.

The District is commanded by Capt. David Blackmon (DavidBl@cctexas.com) and the Chief is Chief Floyd Simpson (FloydS@cctexas.com).  Note that Corpus Christi is one of the few police departments in Texas that have a union contract, and they also have a unique rank structure of Officer, Sr. Officer, Lieutenant, Captain, Commander, Asst. Chief, and Chief.  There are no Sergeants.

 

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