Unusual Allies in a Legal Battle
Over Texas Drivers’ Gun Rights
By RALPH BLUMENTHAL
Published: April 5, 2007
http://www.nytimes.com/2007/04/05/us/politics/05guns.html?th&emc=th
HOUSTON, April 4 — Keith Patton was driving home one
night in February when police officers pulled over
his red Ford Explorer for a traffic stop.
His license and insurance form were in his gym bag
on the floor near the back seat. Under the bag was a
.357 Magnum.
Mr. Patton, 51, an oil-field geologist, software
tester and martial arts instructor from suburban
Katy, told the police about the gun, which he said
he had bought hours before from a co-worker for
target shooting. Moments later, he was handcuffed
and on his way to jail, facing a charge of
unlicensed carrying of a weapon.
The arrest might have been routine elsewhere, but
this is Texas, where a code rooted in the days of
the highwayman recognizes the right of travelers to
be armed, and the Legislature has repeatedly
endorsed that principle.
Defiant police officers and prosecutors, however,
saying they retain law enforcement discretion, have
continued arresting and bringing cases against
motorists like Mr. Patton found with unlicensed
handguns.
The conflict has led to a legal standoff and a new
effort by legislators to resolve the issue. It has
also inspired an unlikely alliance between the gun
lobby, which has long drawn support from the
political right, and civil liberties advocates, long
identified with the left, in defense of
pistol-packing travelers.
In a report issued in February, the Texas affiliate
of the National Rifle Association joined the
American Civil Liberties Union of Texas and the
Texas Criminal Justice Coalition “to spotlight
unlawful, unnecessary governmental encroachment on
average law-abiding citizens.”
The report, “Above the Law: How Texas prosecutors
are placing their own judgment over that of the
Legislature and the law of the land,” found that
district and county attorneys had instructed police
officers to “unnecessarily” interrogate drivers and
arrest them or take their weapons, “even if they are
legally carrying the gun.”
“It’s all the self-interest of the job,” said Scott
Henson, a civil liberties advocate and blogger who
wrote the report. Mr. Henson contends that police
officers are opposed to citizens’ carrying guns and
that prosecutors depend on gun charges to strengthen
weak cases and prompt plea bargains.
Like many other states, Texas bans the carrying of
concealed handguns without a license. Obtaining a
license requires a background check and a gun-safety
course. By long-established law, however, Texans can
cite “traveling” as a defense to possession of an
unlicensed handgun. But while traveling was widely
understood to denote a journey of some distance, it
was never defined. (Travel on planes and other
interstate conveyances banning weapons falls under
federal jurisdiction.)
In 1997, the State Legislature tried to clarify the
law by removing unlicensed carrying of a weapon as
an offense while traveling. But it left unresolved
whether traveling required making an overnight stop,
crossing county lines or other conditions.
In 2005, lawmakers sought to remove the ambiguity by
declaring that anyone in a private vehicle who was
not engaged in criminal activity or otherwise barred
from possessing a firearm was “presumed to be
traveling,” and thus exempt from restrictions on
concealed handguns.
Terry Keel, a former member of the Texas House of
Representatives who sponsored the bill, explained
its intent in a statement entered into the record:
“In plain terms, a law-abiding person should not
fear arrest if they are transporting a concealed
pistol in a motor vehicle.”
But the measure hardly ended the controversy.
Almost as soon as it became law in September 2005,
the Texas District and County Attorneys Association
signaled its displeasure by advising members that
the act did not rule out arrests of otherwise
law-abiding drivers carrying weapons. The
association said it was up to the courts to
determine whether a person was, in fact, traveling.
“Therefore,” it declared, “officers are still acting
within their lawful discretion if they arrest a
person who might qualify for the traveling defense
or the new traveling presumption.”
Or, as Charles A. Rosenthal Jr., the district
attorney of Harris County, which includes Houston,
argued, “The presumption of innocence does not make
the person innocent.”
Now, critics of the district attorneys are backing
legislation that would sidestep such issues. A bill
before the Texas House would treat personal vehicles
like homes, where people are entitled to keep
handguns without a license. It would create an
exception to the handgun ban for anyone “inside of
or directly en route to a motor vehicle” owned by
the person or under his control.
Will Harrell, the executive director of the American
Civil Liberties Union of Texas, said that even
before the current dispute, his group and the N.R.A.
had been collaborating on racial profiling issues,
particularly on what he called a “Bubba profile”
that made certain white men the focus of gun checks
by the police.
Consequently, Mr. Harrell said, the A.C.L.U. of
Texas, the Texas State Rifle Association and the
Criminal Justice Coalition filed public information
requests with more than 300 district and county
attorneys for any advisories on the vehicle handgun
law given to local law enforcement officers. Many
did not respond or said they had no guidelines, but
13 acknowledged instructions to continue arresting
drivers with unlicensed guns or to take their
weapons.
Mr. Harrell said the collaboration with the Texas
State Rifle Association came easy. “I find working
with strange bedfellows more comfortable than with
those we most often agree with,” he said. And, he
said, “the police don’t know what to think of it.”
Alice Tripp, the legislative director for the rifle
association, conceded that the groups had been seen
as an odd couple. “Everybody kind of went, ‘Oh my
God, what’s the A.C.L.U. doing here with the gun
people?’ ” Ms. Tripp said. But she said they had
found common ground on self-defense as an endangered
liberty.
Mr. Rosenthal, widely regarded as Texas’ most
influential district attorney, said a police officer
was right to continue inquiring into the travel
particulars of an armed driver without a concealed
handgun permit. “The presumption is he may be
traveling,” he said. “Whether he is is a jury
question.”
Tim Curry, the criminal district attorney in Tarrant
County, which includes Fort Worth, concurred,
according to the report, which quoted him as
advising the police, “A trip to the grocery store
with plans to return home does not constitute
traveling.”
Mr. Keel disagreed. “It’s no longer an issue of how
far you’re going,” he said. “The Legislature ended
that debate.”
That view was small comfort to Mr. Patton, who won
dismissal of his charges but spent a night in jail
and was out not only his $300 pistol but also $1,500
to his lawyer, Samuel Cammack III, and $268 for the
towing and impoundment fee for his Ford Explorer.
Almost worse was the mortification. “Everyone thinks
this is the Wild West,” Mr. Patton said. “My dad was
incredulous. He said, ‘I thought you lived in
Texas.’ ”
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