Update 9/16: TX State Troopers Now Lying After Unlawful Arrest for Open Carrying Black Powder Pistol (Video)Submitted by RobHino on Fri, 09/13/2013 - 16:44
It's being reported that, "The police officer who arrested Gary is now claiming that Gary pointed a weapon at him. This is a lie, the weapon was holstered and we have video and multiple witnesses to call out the cop's lie. The cop is lying to protect himself so he doesn't get in trouble."
"They are also now claiming that Gary's release for jail without charges was 'an accident.' This started after Gary called them to try to get his black powder pistol back."
The story is just developing. Stay tuned. State officials are getting involved to try to force release. The officer was confronted with the law. Watch him squirm!
Texas law specifically exempts black powder replicas from the definition of a handgun or firearm, which was indeed what the person who was arrested was open carrying...a black powder replica pistol.
UPDATE: 5:40pm CST from a friend on the scene: Will be streaming Gary Hays open carrying his black powder revolver at the state capitol in Austin in about 15 minutes (5:45ish).
Link to live feed of another open carry attempt in protest! http://www.ustream.tv/search?q=webnotions
Original video below!
UPDATE: InfoWars coverage
New Video (language warning):
Update via Rachel Malone. Props to Patterson for jumping into this. Abbott so far appears to be dodging and acting like he can't do anything. Share and call!
Update on the situation at the Capitol this morning:
I just spoke with Nestor Rizo. He, Gabe Cabrera, and Terry Holcomb Sr., admins here at TOC, went to the Capitol today to peacefully exercise their 2nd amendment rights. Other folks from Open Carry Texas were also there.
While they were still walking up the sidewalk, before they even reached the Capitol grounds, Terry was arrested by DPS for openly carrying a black powder pistol (which is not counted as a firearm under Texas law and therefore not subject to handgun carry restrictions). The pistol was secured in a holster.
Scott Liberty was also arrested for carrying a black powder pistol.
I understand that they were both arrested under Illegal Carry of a Firearm and Disorderly Conduct - although clearly, they were not in violation on either of those counts.
Jerry Patterson was notified of the situation, and he called the Capitol to tell them to release Terry and Scott immediately. They refused, so Patterson is proceeding to put pressure on Attorney General Gregg Abbott to step in and help.
Nestor and Gabe are now on their way back home. I'm sure they'll be posting more firsthand accounts and videos.
You can contact Abbott at 512-463-2100 to urge him to take action against this infringement of the 2nd Amendment. Remember, he does have power through his current office to help. If he does not use that ability now, how should we expect him to help protect 2nd amendment rights when and if he becomes governor?
Here's Texas Law 46.01 (3)(A) & (B)
(3) "Firearm" means any device designed, made, or adapted to expel a projectile through a barrel by using the energy generated by an explosion or burning substance or any device readily convertible to that use. Firearm does not include a firearm that may have, as an integral part, a folding knife blade or other characteristics of weapons made illegal by this chapter and that is:
(A) an antique or curio firearm manufactured before 1899; or
(B) a replica of an antique or curio firearm manufactured before 1899, but only if the replica does not use rim fire or center fire ammunition.
UPDATE: Pic from the LIVE re-protest of the arrest earlier today. They decided to do it again!
Here's the video from last week of the same group actually getting into the building!
Two of the men arrested first are now out on $0 and $20 bail. Gary Hays, the disabled vet in the picture above, has indicated that he is not willing to post bail. Can't blame him - no crime was committed.
UPDATE: Commentary from a friend who knows about this kind of stuff...
Several people have commented that "manner calculated to cause alarm" isn't defined, or that LEOs are choosing a definition that suits them, and we need case law. However, something Gary Hays said last night when his arrest started got me thinking and doing some research today, and I think there's a fundamental piece we've been missing here.
The cop told Gary that his pistol "was alarming" him (which is obviously different from "calculated to cause alarm", but nevermind that for now). Gary immediately replied that the cop's visible sidearm, mace, nightstick, etc. were alarming him. Something we've all thought and said before, but it got me thinking about what the code says...
As we all know, Penal Code Chapter 46 is the one dealing with weapons. 46.02 lists places a person can't carry a handgun. 46.03 lists places a person can't carry a firearm or other prohibited weapon.
The thing is, those sections apply to ALL people, including license holders AND LEOs. So why can they each carry? Because there are exceptions later in that Chapter: Sec. 46.15. NONAPPLICABILITY. 46.15(a) says both 46.02 and 46.03 do not apply to various types of peace officers, while in the commission of their duty or otherwise (different types of LEOs get different exceptions). 46.15(b)(6) carves out the exception to carry a concealed handgun if you're a CHL holder.
Obviously our guys are getting arrested and charged not under Chapter 46, but under Chapter 42, Disorderly Conduct. Specifically, 42.01 "(a) A person commits an offense if he intentionally or knowingly: (8) displays a firearm or other deadly weapon in a public place in a manner calculated to alarm;".
There is no NONAPPLICABILITY exception for LEOs I can find for 42.01, or any of Chapter 42. That should mean that if simply carrying a weapon openly counts as "manner calculated to cause alarm" for the purposes of 42.01, then every LEO that's openly carrying is also in violation. Obviously selective enforcement is no new thing, but that should make it clear in any court proceeding that using brandishing as the standard is the only reasonable way to read the law.
This shouldn't be that surprising if we consider what "disorderly conduct" is supposed to be about. There's no particular reason to think an LEO would be exempt from laws against disruptive noise, showing their genitals, etc. that the rest of Chapter 42 deals with.