The Truth About a Court Decision “Banning” AR-15s

By | Texas Laws | No Comments

You might have read some articles or seen headlines about a court upholding a ban on “assault rifles” including the AR-15. We at the law firm of Walker & Byington, PLLC have received many questions from individuals concerned that this ruling has made the AR-15 (and similar semi-automatic firearms) illegal “assault weapons” everywhere in the country. Is this the truth of the matter, or a case of media misinformation?

It is true that a federal appellate court did uphold an “assault weapon” ban; the Maryland federal appeals court, the Court of Appeals for the Fourth Circuit, upheld a Maryland law as being constitutional that banned certain semi-automatic weapons, including AR-15s. While the decision is disappointing to gun owners everywhere, the good news is that the only people affected by the ruling will be individuals living in the Fourth Circuit (Maryland and parts of North Carolina). To give North Carolina residents peace of mind, this decision upheld a Maryland law that was on the books; it does not apply the law to North Carolina.

The bad news, though, is that Marylanders just lost a little more of their Second Amendment rights. Chances are that the case will go to the U.S. Supreme Court in the next few years, so that the Court can decide whether these types of bans are unconstitutional. Until then, the people living in Maryland will not be able to own, protect themselves or protect their families with so-called “assault rifles.”

Thankfully, Texans can continue to exercise their 2nd Amendment right and carry their AR-15s. And as always, this ban is just a reminder that you visit the Northeast at your own risk!

A Long Discussion on Short-Barreled Shotguns

By | Texas Laws | No Comments

We have received numerous questions regarding the Mossberg 590 Shockwave. The firearm has a pistol grip, shoots shotgun shell ammunition, has a barrel length of 14 inches, and an overall length around 26 ½ inches. It is marketed as a non-NFA weapon which does not require a tax stamp for possession. The question is: “Is this legal, and can I have one in Texas?!”

Part One: Legal? So far so good.

It is important to note that this is a complicated area of the law, which we will see in just a moment. The claims of legality are founded on letters from the Firearms Technology Branch of the ATF. One letter confirms that the forerunner of the firearm in question is in fact not a weapon regulated under the NFA. However, there are several reservations made in the letter itself. First, the letter is in reference to a Mossberg, Model 500 “Cruiser” 12-gauge firearm with a modified barrel. The Shockwave appears to be an updated version of the Cruiser by having a shorter barrel but extending the pistol grip at a larger angle to achieve the acceptable overall length. The letter specifically states that classification is based only on this item and any other item could potentially have a different classification. It is unclear if another submission was specifically made for the Model 590 Shockwave. Second, the analysis in the ATF letter consists only of legality under federal law. State law can often differ from federal law and for this reason the letter does not claim to provide any insight into whether this firearm may be possessed in a specific state. Lastly, the letters both state that if the weapon is found actually concealed on a person, the classification could change and at that point meet the definition of an AOW. With this in mind, we can look to the arguments surrounding classification as a non-NFA weapon.

Type of Firearm (The Enigma)

  1. Shotgun

The term “shotgun” means a weapon designed or redesigned, made or remade, and intended to be fired from the shoulder and designed or redesigned and made or remade to use the energy of the explosive in a fixed shotgun shell to fire through a smooth bore either a number of projectiles (ball shot) or a single projectile for each pull of the trigger, and shall include any such weapon which may be readily restored to fire a fixed shotgun shell. 26 U.S. Code § 5845(d).

A shotgun having a barrel or barrels of less than 18 inches in length would be regulated by the NFA.

The key here is that the Shockwave is manufactured with a pistol grip and therefore is not intended to be fired from the shoulder. Due to this distinction, the firearm cannot be classified as a shotgun and therefore cannot legally be a short-barreled shotgun.

2. Weapons made from a shotgun

Another item regulated by the NFA is any weapon made from a shotgun if such weapon has an overall length of less than 26 inches or a barrel or barrels of less than 18 inches in length. 27 CFR 479.11.

Although it would seem like this should apply to all firearms that fire 12-gauge shotgun shells like the Shockwave, this section has been interpreted to only mean firearms that are “born into the world” as shotguns, and then later modified. The Shockwave is constructed by Mossberg with a pistol grip instead of a shoulder stock. If someone took a normal shotgun and made modifications to match the Shockwave, this would be a weapon made from a shotgun and would therefore be regulated under the NFA.

3. Pistol

A weapon originally designed, made, and intended to fire a projectile (bullet) from one or more barrels when held in one hand, and having (a) a chamber(s) as an integral part(s) of, or permanently aligned with, the bore(s); and (b) a short stock designed to be gripped by one hand and at an angle to and extending below the line of the bore(s). 27 CFR § 479.11.

Now this particular classification is not even considered by any of the letters from the ATF branch. This definition mostly hinges on the idea of the weapon being fired with one hand. Although it would seem clear to most that firearms like the Shockwave need two hands to be fired due to its overall length, a determination to the contrary could be devastating. The determination as to whether or not a weapon was designed, made, and intended to be fired with one hand would be made by the jury based on expert testimony. If the jury found the idea of having to hold the pump action with the second hand to be unpersuasive (because essentially every firearm needs two hands in order to be chambered) and focused on the part of the definition dealing with the short stock to be gripped by one hand, it could be classified as a pistol… an extremely long pistol. Note that there is no maximum length for a pistol in the definition. In this possible scenario, due to the firearm’s smooth bore, it would automatically be deemed an AOW and be regulated under the NFA. (See the definition of AOW below).

4. Any Other Weapon (AOW)

The term “any other weapon” means any weapon or device capable of being concealed on the person from which a shot can be discharged through the energy of an explosive, a pistol or revolver having a barrel with a smooth bore designed or redesigned to fire a fixed shotgun shell, weapons with combination shotgun and rifle barrels 12 inches or more, less than 18 inches in length, from which only a single discharge can be made from either barrel without manual reloading, and shall include any such weapon which may be readily restored to fire. Such term shall not include a pistol or a revolver having a rifled bore, or rifled bores, or weapons designed, made, or intended to be fired from the shoulder and not capable of firing fixed ammunition. 26 U.S. Code § 5845(e).

After evading classification as a shotgun, the AOW definition is the remaining hurdle for firearms like the Shockwave. The AOW is sometimes used as a catchall for firearms that fall through the cracks between the definitions of other firearms regulated under the NFA. Mainly we are looking at firearms that can be disguised as other items or firearms capable of being concealed on the person other than pistols, rifles, and shotguns.

Here we need to find out what it means to be concealable. If you read the letters, you will see that the ATF branch advocates that 26 inches is the magic number to determine whether or not a firearm is concealable. Although it would be nice to have this hard and fast rule, it unfortunately does not appear in the statutes. The ATF branch based 26 inches by looking at what the Congressional drafters of the statute had in mind when it was written. Legislative intent can be good evidence for argument purposes, but it is still an issue when the courts will interpret the statute.

To add to the lack of clarity, one ATF letter states, “because the statute does not expressly indicate any maximum overall length, a firearm measuring greater than 26 inches in length may properly be classified as an AOW if it otherwise satisfies the definition of an AOW and there is evidence that the firearm in question was actually concealed on a person.” The second letter echoes the same idea.

5. Destructive Device

The term “destructive device” means […] any type of weapon by whatever name known which will, or which may be readily converted to, expel a projectile by the action of an explosive or other propellant, the barrel or barrels of which have a bore of more than one-half inch in diameter, except a shotgun or shotgun shell which the Secretary finds is generally recognized as particularly suitable for sporting purposes. 26 U.S. Code § 5845(f)(2).

This is another concept that is not discussed in the letters but could potentially pose problems for the Shockwave’s classification. The definition above includes weapons with a bore of more than one-half inch in diameter. Typically, there is an easy exception since shotguns are specifically excluded. However, if the crowning glory of the Shockwave is avoiding classification as a shotgun, then the Shockwave has also achieved the unintended consequence of excluding itself from exception to the destructive device definition.

At the end of the day, the letters from the ATF Firearms Technology Branch don’t seem to have any major issues with this type of firearm and casually make the claim that under federal law it should not require registration with the ATF. Each person must decide for themselves how confident they are in the letters’ guidance, and whether they’re willing to risk a felony conviction. This leaves the state law perspective to worry about.

 

Part Two: Okay in Texas? Probably not.

Unfortunately, all this analysis does not help very much when we get to the laws in Texas. As noted above, the crux of the argument in favor of the weapon being a non-NFA item is that it cannot be classified as a shotgun under federal law. Federal law looks at whether or not it is intended to be fired from the shoulder. Since the firearm isn’t a shotgun to begin with, then logically it cannot be a short-barreled shotgun.

The problem under Texas law is that “shotgun” is not a defined term in the penal code, but “short-barrel firearm” is. Texas Penal Code Section 46.01(10) defines a short-barrel firearm as a rifle with a barrel length of less than 16 inches or a shotgun with a barrel length of less than 18 inches, or any weapon made from a shotgun or rifle if, as altered, it has an overall length of less than 26 inches. At first glance, there doesn’t seem to be a difference from the way the federal law classifies these weapons, however without having a clear definition of a shotgun, we cannot determine whether or not the Shockwave is excluded from what Texas courts would consider a short-barrel firearm. In the absence of language in the Texas Penal Code similar to “intended to be fired from the shoulder,” can having a pistol grip instead of a shoulder stock automatically create a firearm that is not a shotgun?

When left without a clear definition, the jury would end up looking at the firearm and deciding whether or not it met the commonly understood definition of a shotgun, which is usually a smooth bore firearm used for firing small shot at a short range. If in the eyes of the jury the Mossberg 590 Shockwave looked like a shotgun, then due to the 14-inch barrel it would be a short-barrel firearm and possession would be a third-degree felony offense under Texas Penal Code Section 46.05(a)(1). Therefore, we definitely advise caution when it comes to purchasing and possessing this firearm in Texas!

Have You Heard The News About Suppressors?

By | Texas Laws | No Comments

By now, many people are familiar with a particular piece of legislation in Congress, H.R.3799. This bill is referred to as the Hearing Protection Act of 2015. Essentially the bill was drafted to change the way federal law treats firearm suppressors or silencers. Anyone who has ever worried about hearing loss from shooting might want to lend their ears to this cause!

Currently, the manufacture, purchase, and possession of firearm silencers are regulated by the ATF and must comply with the requirements laid out in the National Firearms Act. Similar to a short-barreled rifle or shotgun, anyone who wants a firearm suppressor must first get approval from the ATF and pay the required tax. An extended waiting period comes along with the time it takes the ATF to process these requests.

The Hearing Protection Act seeks to amend the law so that firearm silencers are treated the same way as long guns. The bill would make it so that there is no longer a tax associated with the transfer of a firearm silencer, and anyone who pays a tax on a silencer after October 22, 2015 could receive a refund of such tax. Additionally, anyone who possessed a firearm silencer would be treated as meeting any registration and licensing requirements of the NFA. Lastly, the bill would preempt certain state laws that tried to impose taxes or registration requirements on firearm silencers.

The bill is currently under review in the House Subcommittee on Crime, Terrorism , Homeland Security, and Investigation. With the concern of a presidential veto decreasing in the new year, we anxiously wait to hear about the future of this bill.

Pistol Kits: Beware!

By | Texas Laws | No Comments

As the independent program attorneys of Texas Law Shield, we here at the law firm of Walker & Byington, PLLC receive all sorts of questions about modifying firearms; unfortunately, it is not uncommon for people to already be in violation of the law by the time they call us! One recent trend is the installation of a “carbine conversion kit.” Can you drop your handgun into one of these kits legally, or are you potentially violating the law? First we have to understand what exactly is regulated, and what isn’t, before learning about how the conversions work.

What’s regulated?

There are types of firearms that are regulated by the National Firearms Act; these regulations prohibit an individual from possessing certain types of firearms without first registering that item with the ATF, and paying the appropriate tax. Commonly used handguns and rifles are not governed by the NFA; short-barreled rifles, however, are regulated. In other words, short-barreled rifles require registration with the ATF and a tax to be paid, while handguns and rifles do not.  What’s the difference between a handgun, a rifle, and a short-barreled rifle?

These three firearm terms are defined under federal law in 27 CFR 478.11. A handgun is as any firearm which has a short stock and is designed to be held and fired by the use of a single hand (while many of us use a second hand for safety or additional control, this is not considered to be firing with two hands). Conversely, a rifle is defined as a weapon designed or redesigned, made or remade, and intended to be fired from the shoulder. A short-barreled rifle is any rifle, or any weapon made from a rifle, with one or more barrels less than 16 inches in length, or the overall length of the rifle is less than 26 inches. This overall length includes any collapsible or folding stocks at full extension, and is measured from the extreme ends of the rifle. The exception is if the stock is easily detachable, in which case it is measured without the stock.

So, to determine what kind of item you have, ask yourself the following questions:

  • Is it designed to be held and fired by the use of a single hand? If yes, then you have a handgun. If not, go on to question 2.
  • Is it designed or redesigned, made or remade, and intended to be fired from the shoulder? If yes, go on to question 3.
  • Does the barrel measure at least 16 inches in length? If not, you have a short-barreled rifle. If yes, go on to question 4.
  • Does the item have at least an overall length of 26 inches? If not, you have a short-barreled rifle. If yes, you have a rifle.

Converting from one to another

Now that we have those definitions out of the way, let’s look at how these conversions play out:

Rifle -> SBR

If you turn your rifle into a short-barreled rifle, you have committed a crime unless you received ATF approval and paid the appropriate tax. So, unless you’ve gotten your tax stamp from the ATF, don’t saw off your barrel or stock (if it is shortens the overall length under 26 inches)!

 

Handgun -> SBR

If you take your handgun and turn it into an item that is designed to be fired from the shoulder, and it doesn’t meet the 16 inch barrel length requirement or 26 inch overall length requirement, you have created an item that meets the definition of a short-barreled rifle. This item will need to be registered with the ATF and have a tax paid before conversion, just like the rifle to short-barreled rifle conversion.

 

Handgun -> Rifle

This is a perfectly legal transition to make, that requires no NFA compliance or registration. You are simply moving from one non-NFA firearm to another.

 

Rifle -> Handgun

Think this is another legal conversion? Think again! This creates a short-barreled rifle, and requires prior approval by the ATF and a tax paid. Why? Because of the pesky definition of a short-barreled rifle; it includes any weapon made from a rifle, that doesn’t meet the 26 inches overall or a 16 inch barrel length. Therefore, if you take your rifle down to handgun size, you’ve created a short-barreled rifle!

 

Handgun -> Rifle -> Handgun

We know that handgun to rifle is legal; and we just saw that taking a rifle to a handgun (which is actually an SBR) is regulated. What happens if you turn your handgun into a rifle, then back into a handgun? Nothing, it’s perfectly legal! These can seem confusing (for good reason!), but the ATF clarified why they have taken this stance. Ultimately, the weapon was born into the world as a handgun; it was then modified into a rifle, and back into a handgun. Therefore, it isn’t a weapon “made from a rifle,” but is instead was originally a handgun. Even if this doesn’t make sense, just remember that how a weapon is born into the world matters. If it’s born as a handgun, you can turn it into a rifle and then back into a handgun. If it’s born as a rifle, turning it into a handgun creates an NFA regulated item.

 

Honorable Mention: Handgun -> AOW

One final wrench to throw in the works! What happens if you add a vertical foregrip to a handgun? We know the definition of a handgun is a weapon designed to be fired with a single hand, and that a rifle is designed to be fired from the shoulder. However, this item is not designed to be fired with one hand, as it has a foregrip and is now designed to be fired with two! It isn’t a rifle, because it isn’t designed to be fired from the shoulder either. So what exactly is this Frankenfirearm? Per the ATF, it is considered an “Any Other Weapon” or AOW that must be registered with the ATF and have the appropriate tax paid.

 

Now that we are all masters on conversions, let’s look at a real-life example: the TCM Roni Pistol Shell. This conversion kit allows you to open a compartment, drop your pistol in, close the compartment, and essentially finish conversion. The overall length of the item is 22 inches with the shoulder stock extended, and the barrel is just a few inches. If you put your pistol in this kit and close the compartment, you have created an item that meets the definition of a short-barreled rifle, and are committing a crime if you haven’t previously registered the item with the ATF and paid the appropriate tax! Accordingly, there is a warning on the TCM Roni Pistol Shell purchase page that a pistol, if converted, becomes a short-barreled rifle.  Compare this with the Glock Roni Civilian Pistol Carbine conversion kit, with a 16 inch barrel and 27 inches in overall length. This would be perfectly legal!

The world of firearm conversions can become convoluted and potentially incur criminal consequences; so make sure you know what the law is before converting your firearm!

Top 3 Do’s and Don’ts of a 9-1-1 Call

By | Texas Laws | No Comments

The Do’s:

 

  1. “Victim of a Crime”

When you speak to the dispatcher, begin by telling them you have been the victim of a crime. This is a simple way to start the conversation that puts responders in the correct frame of mind. This can have a positive effect on the way you are approached and treated at the scene.

  1. Keep it Brief

The only information the dispatcher needs from you is your name, the location of the emergency, what emergency services are needed, and that you are the victim of a crime. Information about the incident itself should be given later after you speak to your attorney.

  1. Hang Up!

After you have given the dispatcher the necessary information, hang up the phone and call your Texas Law Shield Independent Program Attorney!

 

The Don’ts:

 

  1. Discuss the Facts

All 9-1-1 calls are recorded. In the chaotic, emotional moments after an emergency, you are likely still processing what has just happened. This is not the best time to recount everything on a recorded phone call. If what you say does not match the physical or material evidence at the scene, you may have a huge problem regardless of how innocent your mistake may be.

  1. “I Killed Them”

You want to avoid saying something like “I shot them,” or “I killed them.” As you know, all 9-1-1 calls are recorded and can be used at trial. Words like these have a negative connotation and can create negative feelings in the minds of the jury.

  1. Remain on the Phone

The longer you stay on the phone, the more likely you are to say something that can get you in trouble. Even if what you say is perfectly accurate, a tape played in front of a jury can be misinterpreted or taken out of context. For an example of how staying on the phone can cause you problems, just look at the Joe Horn case…

 

Keep these tips in mind if you should ever find yourself needing to make a call to 9-1-1 in an emergency situation. They might just stop you from talking yourself into a hole… or a CELL!

Accidental Discharge

Accidental Discharge? Don’t Jump the Gun!

By | Texas Laws | No Comments

Accidental or unintentional discharge of a firearm

 


 

In case of an accidental discharge, should you call 9-1-1 right away?
Over the course of representing our clients, we have noticed a very peculiar phenomenon that is leading to arrests or entanglements with the legal system. We have labeled this term “jumping the gun,” and it happens more often than you’d think!

Imagine the following accidental discharge scenario:

John lives at home, by himself, on a 11 acre plot of land. While cleaning his handgun, he accidentally discharges into his own floor. No one has been hurt; no neighbor’s property has been damaged, and in fact, other than the inconvenience of fixing the bullet-hole, there is no harm.

However, John has a guilty conscience; he thinks there may be an ordinance he violated by discharging his firearm. Unsure as to whether or not he’s committed a crime, he calls the police on himself. The police, who focus in on the words “shot,” “my,” and “handgun,” arrest John or write him a ticket.

So where did John go wrong?

In this example of accidental discharge (also known as a negligent discharge); John jumped the gun and called the police on himself.

Even though John can eventually beat this rap, his own guilty conscience caused the ride! This kind of idea is difficult for lawyers to understand (as we have no conscience to begin with), but we want to warn people to be very precise as to when they call 9-1-1 or contact law enforcement.

Most law enforcement officers or dispatchers are hostile towards firearm owners in general; especially so if there’s been a use of the firearm. Even if you notify them of a non-criminal activity you were engaged in with your gun; you can still get arrested, and the only way they found out is because of your phone call.

This is to say nothing of the fact that by calling 9-1-1 prematurely and jumping the gun, you’re losing a legal defense as old as time itself: the “it wasn’t me!” defense.

 

What about self-defense?

This issue can become even more confusing when dealing with self-defense situations, where in response to an attack or threat someone displays or discharges their gun.

Again, it is not uncommon for individuals to jump the gun, call 9-1-1, and report that they just shot someone, or pointed their gun at someone during a road rage. Here they’ve actively made the situation worse! By focusing on their own activities, they have now made themselves the center of this altercation.

 

So should I call 9-1-1?

call 911-walker-byington

Don’t take this the wrong way, though; if you’ve drawn your gun, or fired your gun, you should call 9-1-1.

But how do you do that without jumping the gun? By correctly reporting that you’ve been the victim of a crime. If someone has attacked you, attempted to rob you, or committed some other crime against you; your focus shouldn’t be on the fact you drew or used a gun, but instead your focus should be to report their criminal activity to the police.

After all, as a law-abiding citizen, you would only pull your gun on someone, or shoot at someone if they are doing something bad enough to earn it. Accordingly, make sure your focus is on their activity, not your own!

 

Conclusion

While many people are well acquainted with the mindset of “nobody talks, everybody walks,” sometimes it can be easy to let worry, anxiety, or plain old guilty conscience take control and end up talking to the police (thereby not walking away from the encounter without criminal charges!).

When in doubt as to whether you’ve committed a crime; your phone call should be to your attorney, not to law enforcement. If it is in your best interest to call to report the crime that has been committed against you, your attorney will tell you to do so; perhaps your best plan of action is to be quiet and sit tight, they will tell you that too.

So, if you find yourself in a situation where you have used a firearm, but you’re unsure as to whether it was illegal, call your attorney. Don’t jump the gun and call 9-1-1!


If you need help with a firearms or weapons charge don’t hesitate to contact us: Send us your questions
Or call us at: (281) 668-9957
 http://www.walkerbyington.com

Carrying on Bourbon Street

By | Outside of Texas | No Comments

On November 27, 2016, an individual opened fire in New Orleans’ popular French Quarter killing 1 and injuring 9. Visiting Texans might be wondering what the law is regarding firearm carry in the French Quarter.

First, Louisiana recognizes a Texas License to Carry. This means that a Texan can carry a firearm to the fullest extent allowed by Louisiana law. Like Texas law, Louisiana has a law prohibiting firearms on the premises of an alcoholic beverage outlet including bars and clubs. Please remember there is no signage requirement to put LTC holders on notice that possession is prohibited in Louisiana.

This is different from Texas’s 51% rule. In Louisiana, if a place sells any alcohol (with the exception of certain restaurants), it is illegal to have a firearm there! Because of the number of bars in the French Quarter, it is highly advisable that visitors do not carry their firearms. Not only because you will be prevented from entering any of the bars legally but carrying a firearm so close to a bar may make it look like you’re attempting to commit a crime, even if you never enter the premises!

Unfortunately, to avoid an arrest on your vacation in New Orleans, your best bet is to leave the firearm in the hotel if you choose to visit the French Quarter. Texans who prefer to carry may be better off visiting other destinations. As recent news has demonstrated, guns and alcohol don’t mix!

Run, Hide, Fight!

By | Uncategorized | No Comments

On November 28, 2016, a student at Ohio State University took it upon himself to violently attack his fellow students by running into them with his vehicle, and to attack other students with a butcher knife. Fortunately, this man was stopped by a single police officer before he could continue his rampage. Tragic situations like this, where the lives of innocent people are put at risk for no discernable reason, should act as a wake-up call to the rest of us. What if we were in such a situation, how should we respond? What should we do, especially if we aren’t lucky enough to have a police officer present to stop the attacker?

The rules during any active attacker situation, be they an active shooter, active stabber, or otherwise, are essentially the same: Run, Hide, Fight.

Run, Hide, Fight

  1. Run

Even though action movies have trained us to think that the order should be “Fight, Hide, Run,” experts in active attacker situations state that the first thing you should try to do is run. Why? Because fewer targets mean less potential for casualties. Your first thought should be “How do I escape?” This begins with having a plan of action. Whether you are at the office, sitting in class, or enjoying your favorite restaurant, have a plan of how you would react if an active attacker started shooting or stabbing. Make a mental note of exits and where those exits lead. Be sure to communicate this plan to those in your company. For instance, if you sit down at a restaurant, point out the exit you intend on using if the unthinkable happens. Similarly, when you run, you must run with a purpose. So make sure to know where you are going and most importantly, that you are not running towards the threat! Stop running only when you are out of harm’s way.

  1. Hide

Many times, due to environmental or physiological reasons, running may not be an option. If this is the case, hide. Hide under a desk, behind a door, flip over a table to conceal yourself. If you can find cover, even better! What’s the difference between cover and concealment? Cover means hiding behind something that will protect you from a bullet.  For instance, a concrete column or a car’s engine block will stop a bullet. Concealment means you are out of plain sight from the bad guy. Both can save your life, but one is a lot better than the other!

  1. Fight

When left with no other option, fight. For many of us, this is why we carry a handgun; for situations when there is no other option to protect ourselves, our family, or our community. However, mass attackers are not stupid; they pick targets that are “soft,” or will provide minimal resistance. What if you are in a “gun free zone?” Everyday items may be used as a weapon such as a fire extinguisher, a letter opener, or even a chair. When the threat presents itself, consider attacking the weapon used by the bad guy. If he chose to wreak havoc with a long gun, charge the bad guy and put all of your weight on the barrel of the gun. He may be able to get one round off, but it’s unlikely he will be able to withstand your body weight on one arm which will prevent him from continuously pulling the trigger.

Get Trained

Consider attending a seminar sponsored by Texas & US Law Shield where these topics will be discussed at length with law enforcement professionals and attorneys. Check out www.gunseminar.com for a seminar near you. If you choose to carry a handgun, attend a tactical class! Moving and shooting with a little bit of adrenaline is a completely different ball game than standing still shooting at a motionless target. (Also, they are loads of fun!).

Statistics to Consider

Could an attacker like this one have been stopped by a licensed handgun owner who was allowed to carry on campus? What are the facts when it comes to safety on a college campus? Unfortunately, there have been very few studies on these topics. Here are the statistics about mass casualty attacks that we do have:

The presence of concealed handgun license holders in a State reduce the incidents of Multiple Victim Public Shootings (“MVPS”)

  • States with permissive “shall issue” handgun licensing laws see fewer MVPS than states with restrictive “may issue” laws. “Shall issue” handgun licensing laws drop the number of MVPS in a state by an average of 6.5% per year. Hence, the mere presence of firearms in the general public discourages multiple victim public attacks.
  • In a study of 100 MVPS (narrowed to 32 to remove targeted/familial shoots and shooter suicide before LEO intervention) between 1949 and 2012, those stopped by the police resulted in an average of 14.29 deaths. MVPS stopped by proactive unarmed civilians ended in an average of 2.6 deaths. MVPS stopped by armed civilians ended in an average of 1.8 deaths. Licensed carriers can, and do, stop attackers! Arming yourself is statistically proven to save lives in these awful situations.

Do more guns on campus lead to more mass shootings?

Though Ohio State attack did not involve a shooter, the anti-gun crowd is quick to capitalize on any tragedy in order to advance their agenda. There is no reason to think that the presence of weapons on campus increases violent acts. In fact, the statistics cited above suggest the exact opposite! There are nine states that allow some form of campus carry. These states are: Arkansas, Colorado, Idaho, Kansas, Mississippi, Oregon, Texas, Utah and Wisconsin. There is no higher incidence in campus shootings in these states due to the existence of campus carry laws.

Putting it all together

With all of these facts in hand, we now have a better idea of what we should do about mass casualty or active attacker situations. First, we need to talk to our legislature to allow campus carry if they do not already! The statistics show that attacks stopped by civilians have a lower casualty rate than those stopped by law enforcement, and the casualty rate drops in half again if the civilian is armed!

If you are legally allowed to carry, you need to get training. Having a firearm with you that you don’t know how to use, or are not proficient with in a high stress situation, can be as bad as not having one at all!

Finally, if you’re in a mass casualty or active attacker situation, Run, Hide, and then Fight. Following these steps will maximize your ability to survive one of these situations and make it home safe to your family.

Castle doctrine - walker-byington

Castle (Doctrine) Under Siege

By | Texas Laws | One Comment

The Castle Doctrine is one of our most treasured protections here in the Lone Star State. What happens when the government fails to respect our Castle Doctrine privilege? Here is a real client story from 2016 to illustrate how your Castle Doctrine rights can come under attack from the State.

(Names and identifying information have been changed to protect the privacy of those involved.)

On a Friday night, 70-year-old Pearl goes out to a casual dinner with her daughter, Debra, and son-in-law Edward. Pearl’s husband, James, cannot join them due to a terminal illness that has rendered him bed ridden. Debra and Edward pick Pearl up from her home, and off they go to dinner. Unbeknownst to Pearl, Edward has been drinking heavily all day. He continues to drink at dinner, until he is loud, out-of-control, and verbally aggressive. Debra and Pearl must cut the night short to get Edward home and in to bed.

On the ride home, Edward begins to direct his aggression towards Pearl. He begins to verbally assault her, using foul and abusive language. He is incredibly drunk, more drunk than Pearl or Debra have ever seen before.

Debra, Pearl, and Edward arrive back at Pearl’s house. Pearl uses a walker to move around, so Debra gets out of the car to assist her mother in retrieving the walker and making her way into the house. Both women instruct Edward to stay in the car, and that he is not welcome inside the home due to his abusive behavior and his drunkenness.

Debra helps Pearl into the home and back into her bedroom. While back in the bedroom, the women hear the front door open violently and loud footsteps in the house. Debra leaves the bedroom first to check the front door. Pearl grabs her Smith & Wesson Shield from the dresser drawer and follows a few moments behind her daughter.

When Pearl looks out into the living room, she sees that Edward has entered her home. She watches as he grabs his wife by the shoulders and tosses her to the side. He then quickly advances on Pearl. Terrified, Pearl fires one shot, hitting Edward in the stomach.

First things first—What is the Castle Doctrine?

The Castle Doctrine is the legal theory that every man and woman in the king or queen of their own castle. As such, certain rights are extended. We all have three castles: 1) The dwelling; 2) the vehicle; and 3) the place of business. When someone forcefully and unlawfully enters, attempts to enter, remove the occupant, or attempts to remove the occupant, of an occupied castle this law kicks into gear. Forcefully means that the bad guy used some amount of force in order to gain entry into the castle. This force could be something as little as turning the door knob to an unlocked door. Unlawfully simply means that the intruder is a trespasser—someone with no right to be on the property in question.

When triggered, what does the Castle Doctrine do?

The Castle Doctrine provides two very important legal benefits. First, if you must use force or deadly force to protect your occupied castle you have the absolute right to Stand Your Ground while doing so. Second, your use of force or deadly force in protection of your castle is given the legal presumption of reasonableness. This presumption is meant to eliminate Monday morning quarterbacking and prosecutorial second-guessing of your actions. The law is, essentially, extending to you the benefit of the doubt that you did the right thing when defending your castle.

What can go wrong?

The government can, on rare occasions, attempt to overcome the Castle Doctrine presumption of reasonableness by arguing that your actions were unreasonable beyond a reasonable doubt. This is meant for rare “one-off” scenarios. For example-

The local girl scout troop is woefully low on cookie sales this season. A girl from Troop 26241, determined to make a sale, walks up to the front door of Michele’s house. She hears movement inside, and instead of knocking, opens the door and barges on in with a cookie box in her hand. Michele immediately sees the intruder is a small child in a girl scout uniform, but is on a very strict diet and wants no part of the cookie sales program. Michele pulls her Glock 43 from its holster and fires a shot directly into Caramel Delights.

In this example, the girl scout has made a forceful and unlawful entry into Michele’s home! (Remember: opening an unlocked door is enough to constitute force.) However, it is clearly unreasonable for Michele to use deadly force in this situation. We can expect that the State of Texas would arrest and charge Michele for aggravated assault with a deadly weapon—alleging she was unreasonable beyond a reasonable doubt—and therefore not protected by the Castle Doctrine.

Now, let’s take a look back at Pearl’s case.

Did Edward commit a forceful and unlawful entry into Pearl’s castle? Yes! He was told explicitly that he had no right to be inside. He barged in anyway, opening an unlocked door to do so. What happened to Pearl? She was arrested, and charged with the crime of aggravated assault with a deadly weapon!

Remember, Pearl is 70 years old. She uses a walker to move around, and the only other occupant of the house is not in good enough health to provide any protection. The State of Texas went after her anyway, alleging that she was unreasonable beyond a reasonable doubt when she used deadly force to defend her castle.

Outraged? We were too. After months of appearing in court and waiting for news, the State finally scheduled Pearl’s case to go before the Grand Jury for indictment. Her team of lawyers at Walker & Byington prepared a Grand Jury defense outlining the factual situation that night and the applicable Castle Doctrine law. Luckily, the prosecutor read through these defense materials and eventually decided that they would respect the Castle Doctrine, and dismiss the case without Grand Jury involvement.

All is not well for Pearl quite yet though—the government refuses to release her pistol back to her until the statute of limitations has run! This means that they can keep her property for a maximum three years after the shooting. When asked why they were refusing to return her property before this three-year period, the prosecutor only replied “Because she shot someone!” Being justified in defending your castle may keep you safe from prosecution, but does not guarantee the government won’t make your life as difficult as possible.

Conclusion

Ultimately, why did the government decide to attack the Castle Doctrine and go after Pearl for this shooting? Why do they insist on retaining her property for as long as they are legally allowed? We’re not sure. But it is an important reminder that anyone can become entangled in the legal system. Stay vigilant—protect yourself, your family, and your property. We’ll protect your rights.

 

Emily Taylor is a former prosecutor and an attorney at the law firm of Walker & Byington, PLLC.
If you need help with firearms or weapons charges don’t hesitate to contact us here: Send us your questions
Or visit us at: http://www.walkerbyington.com

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Erasing Your Criminal History: Part 1

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“I ran into some trouble about 20 years ago or so, and my attorney just told me to plead guilty and eventually it would come off my record; how do I go about getting that expunged?”

“I didn’t have the money for a lawyer so I plead guilty to a felony; how do I buy a gun again?”

“I had a deferred adjudication; when can I get my license to carry?”

These are just a few examples of the thousands of questions we have been asked about people’s records, and that just scratches the surface. It’s a fact that the legal system is a confusing mess when it comes to how criminal histories are handled, how things on your record can impact your rights, and how things can be taken off your record.

Gordon Cooper, an attorney at the law firm of Walker & Byington, is a lawyer who has a strong focus on clearing people’s criminal histories, and helping people understand how to work around (or in some unfortunate cases, live with) their records. “It’s not uncommon for good, otherwise law-abiding individuals to have a ding on their record,” Gordon says. “Maybe it was from way back when they were a kid that didn’t know any better, maybe they couldn’t afford an attorney, or even worse, maybe the attorney they were paying didn’t explain what was going on. Regardless of how it got there, though, this is something you’ll have to deal with one way or another.”

He said there are essentially three main topics that need to be addressed in any conversation about criminal histories: what different types of courtroom outcomes mean to your criminal history, how those outcomes impact your rights, and finally the methods for cleaning up a record, if it’s possible at all. Today’s focus is on types of crimes in Texas and how they can potentially resolve.

What are the types of crimes in Texas?

Gordon said that, “In Texas, there are two categories of crimes: felonies and misdemeanors.”  He went on to say that, for the purposes of a person’s gun rights, including their right to get or keep a concealed handgun license, both can have a devastating effect.

While there are different classes of felonies, all felony convictions are treated the same for purposes of determining what firearms rights a person does or does not have. However, the different classes of misdemeanors in Texas can impact a person’s firearms rights in different ways. These misdemeanors can be Class A, B, or C misdemeanors. Additionally, a finding of family violence on a misdemeanor is fundamentally different than other types of misdemeanors.

Gordon stated that while this can all get pretty confusing; the end-of-the-day list of categories of crimes that can affect your rights are:

  • felonies,
  • misdemeanors with a finding of family violence,
  • Class A, Class B, or
  • Class C misdemeanors.

 What are the different outcomes in Texas?

Gordon outlined the following list which contains the most probable outcomes of a criminal charge:

Dismissal of the charge because it is dropped by the D.A. This can happen at any point before the rendering of a verdict at the D.A.’s discretion. If the case is dismissed before the jury is sworn in, the case may be refiled and prosecuted if it is before the statute of limitations ends.

Pre-trial diversion or intervention, sometimes also known as deferred prosecution. This is a program that is sometimes available as part of a negotiation agreement with the D.A. that results in a dismissal if the terms of the agreement are completed successfully. If a person violates the agreement, the D.A. can continue to prosecute the case against them.

Deferred adjudication where a person pleads guilty to the crime but the judge withholds accepting the plea. Instead the court will set forth certain requirements of court supervision for a certain number of years, months, or days, which could include community service, fines, education, counseling, etc.  If a person completes the court’s requirements, the case will be dismissed and no conviction will result from their guilty plea.  If they violate the court’s orders, their guilty plea will be entered and they will be convicted.

–  Guilty or “No Contest” pleas will have the same impact on a person’s criminal history, a conviction and sentencing. However, a no contest or “Nolo Contendre” plea cannot be considered an admission of guilt and used against them in a civil suit based on the act for which they were criminally prosecuted. You can also receive a guilty verdict after a trial that ends in a conviction.

Acquittal, or a Not Guilty verdict, can come after trial and will restore a person’s freedom from court entanglements for that criminal charge.

Now that we know the four categories of crimes (felonies, misdemeanors with a finding of family violence, Class A or B misdemeanors, and Class C misdemeanors) and the five different outcomes (Dismissal, Pretrial Diversion, Deferred Adjudication, Guilty, or Acquittal), we can look at how these mix and match to affect your rights in Part Two of this three-part series.

Gordon Cooper is an Attorney at the law firm of Walker & Byington. If you have questions about your record, he can be reached by phone at 832-930-5944 or by e-mail at gcooper@walkerbyington.com