Monday, January 27, 2014

Texas: Another Bogus Open Carry "Disorderly Conduct" Arrest

Michael Keoughan was exercising his right to bear arms in Texas last Wednesday (22 January).  He is part of a Texas group of second amendment supporters that demonstrate that the second amendment means something by legally carrying rifles slung across their back.   They openly state that they are educating people about their rights under the Texas and Federal Constitutions.

Before the Civil War (or War Between the States), Texas had a strong right to keep and bear arms clause in its constitution.  After the Confederacy lost the war, the reconstruction government created a new Texas constitution.  The new Texas constitution had a "soviet style" right to keep and bear arms.  That is, they listed the right, but made it irrelevant by saying that the legislature could ignore it when they thought they needed to stop crime.   The reconstruction legislature immediately made the bearing of arms illegal.

When the reconstruction government was kicked out, a new constitution was written and passed.  It reinstated the right to keep and bear arms, but failed to completely remove the legislature's ability to modify it.   They left in a phrase saying that the legislature could regulate the "wearing" of arms.  The legislature never removed the reconstruction ban on wearing pistols or large knives.

That is why the right of Texans to openly carry rifles and shotguns is protected by the constitution, but open carry of pistols and large knives is not.

Come and Take It, the second amendment group that Mr. Keoughan belongs to, aims to restore the right to openly carry pistols and other weapons to Texans.  It has held numerous open carry demonstrations around Texas, and is in the process of planning another for Andrews.    Mr. Keoughan was checking out the rout of their rally when he was arrested for openly carrying his rifle strapped to his back.   This is the second time that an Come And Take It member was arrested in Andrews for open carry.  The Police chief, Jones, was notified that the rally would be taking place, and still says that he will support it.

The ruse that the police used to arrest Mr. Keoughan was "disorderly conduct".  There is a provision in Texas law that defines disorderly conduct with a weapon as: 
“DISORDERLY CONDUCT. (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.”
The problem for the police is that Mr. Keoughan and Come and Take It adamatly state that their actions are not "calculated to alarm" but are meant to educate.    It is difficult to argue their point when the vast majority of people that they meet on the street are not alarmed.  From
"I had great interactions throughout the entire day until the police showed up," Keoughan said.
  Police Chief Jones disagrees:
"We didn't know who he was, had no clue but we started getting a mass number of phone calls," Chief Jones said. "By displaying the weapon, he caused undue alarm."
Some people were alarmed.  We do not know how many, or how alarmed, because from past experience with these events, the calls are often an inquiry asking if the open carry is legal, which is exactly the sort of education Come And Take It is attempting to achieve.

The Chief is wrong to presume that causing alarm is the same as "calculated to alarm".   If merely "causing alarm" were sufficient to arrest, then the entire constitutional guarantee of bearing arms in Texas could be voided by anyone claiming that they were "alarmed" by seeing someone bearing arms.

The quote in may be taken out of context, but he seems to imply that checking someone out is the same as arresting them:
"This is the issue that they don't want to address that we have to address," Chief Jones said. "When we get a call about a person with a gun, do we ignore it? Walking down the street? They're alluding to the fact that we don't have any right to make contact to them because they're not doing anything wrong. I beg to differ with them."
 No one is saying that the police cannot drive by someone that a citizen finds suspicious, or talk to them.   Police know that criminals almost never openly carry guns, and that those who are working to restore second amendment rights often do.   We can contrast what happened in Andrews with what recently happened in Fond du Lac Wisconsin:
“It was basically just a unique display of (the gun owners’) right to bear arms under the state’s open carry law and the U.S. Constitution,” Meyer said. “In a similar incident in Appleton, police engaged the individuals and caused additional turmoil. Our police observed them, making sure that they weren’t a threat to public safety.”
 It is difficult to square Chief Jones assurance that he supports the First, second,fourth and fifth amendments, with Mr. Keoughan's arrest:
 "I can't emphasize enough that we support their right," he said.
The police, after determining that Mr. Keoughan was exercising his rights, did not have to arrest him.   In fact, it appears that they arrested him without legal cause to do so.

The leading candidate for Governor,  Greg Abbot, has said that he supports legalizing open carry of handguns in Texas.

©2014 by Dean Weingarten: Permission to share is granted when this notice is included.
Link to Gun Watch

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