The Elephant In The Room

opencarryYesterday, three more OCT members were cited under Penal Code Section 42.01(a)(8) in Austin. This comes on the heels of three individuals in San Antonio being cited under the same offense for lawfully carrying openly according to Texas law and the Constitution.

The Penal Code reads, “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.”

I’ve highlighted several aspects of this law that law enforcement seem to be intentionally ignorant of. Chapter 6 of the Penal Code defines these words as such:

INTENTIONALLY: “A person acts intentionally, or with intent, with respect to the nature of his conduct or to a result of his conduct when it is his conscious objective or desire to engage in the conduct or cause the result.”

KNOWINGLY: “A person acts knowingly, or with knowledge, with respect to the nature of his conduct or to circumstances surrounding his conduct when he is aware of the nature of his conduct or that the circumstances exist. A person acts knowingly, or with knowledge, with respect to a result of his conduct when he is aware that his conduct is reasonably certain to cause the result.”

The open carry of rifles and shotguns is perfectly legal in Texas. There are no laws that regulate the keeping or bearing of these arms. Section 42.01(a)(8) does mention that such weapons cannot be carried in a “manner calculated to cause alarm.” So, a person has to consciously be aware that his/her conduct is “calculated” to cause alarm. The problem that law enforcement and their statist enablers in the district attorneys offices are going to have in the courts is that we are very clear that our objective is to educate, not alarm. In other words, we are only KNOWINGLY and INTENTIONALLY engaging in conduct meant to raise awareness and educate. By definition, that is our goal with all OC activities.

We’ve just proven the only thing we “knowingly” and “intentionally” do is educate. The rest of 42.01 does not say that education is considered “disorderly conduct” so there is no offense. However, some law enforcement agencies are charging us under (a)(8), so the next test is whether what we are “knowingly” and “intentionally” doing is “calculated” to induce alarm. The Penal Code does not define calculated. In such cases, the law reverts to the commonly used definition of the term. In this case, “calculated” means “made or planned to accomplish a certain purpose; deliberate” or “deliberately planned; premeditated.”

The state has three very difficult obstacles to overcome when charging someone with a 42.01(a)(8) violation with regards to open carry. So, the next place we look to is the case law.

There aren’t really many cases dealing with this particular section of the Penal Code. The legal encyclopedia Texas Jurisprudence isn’t particularly helpful either. But, there are cases that deal with displaying a weapon in a manner calculated to cause alarm.

In the Jones v. State case, George Earl Jones was charged under the Disorderly Conduct statute in that he “did then and there unlawfully intentionally and knowingly display a deadly weapon, namely, A KNIFE, in a public place and in a manner calculated to alarm.” Jones followed his ex-wife (or girlfriend) into her place of employment to talk to her, but she wouldn’t talk to him. He pulled out a knife and made a slashing gesture with his fingers across his neck. Jones argued that the State did not prove that, when he pulled out the knife, he had the culpable mental state to alarm anyone. The court responded that “a defendant’s intent may be determined from his words, actions, and conduct.” This is key because the state is trying to prove that by openly carrying a firearm we are intentionally causing alarm. However, our “words, actions and conduct” are not such that any reasonable person could infer such intent. This case is the most recent case dealing with a weapon (1999).

There is another, unrelated (or perhaps a distant family member), case called Jones v. State (130 S.W. 1001 (Tex. Crim. App. 1910)) from 1910. In this case, G.J. Jones was convicted of carrying a pistol openly onto a public road. The difference in this case and why it doesn’t apply to our open carry of rifles is that in 1910 it was illegal to openly carry a pistol. Texas was just getting over the cowboy justice days and only peace officers were permitted to openly carry a pistol. The case law doesn’t say exactly what he did – whether he had it holstered or was brandishing it. The court ruling just notes that Jones “had no right to go into the public highway upon land the fee of which rested in him and disturb the peace, either by loud and vociferous talking or displaying a weapon.” The court went on to clarify that “no person, unless he be a peace officer, not even the owner of the premises, can go into a social gathering and carry on or about his person a pistol, without violating the provisions of this article.” So, in this case, Jones was directly violating the law to have a weapon at all in public at the time. It is worth noting that all of this case is before concealed carry existed in Texas, and it was illegal in general to carry a pistol anywhere in public.

Perhaps the best case law with regards to the Disorderly Conduct charge is the Grieve v. State case in 2008.  In this case, someone called the police after seeing a man on his balcony with what appeared to be a pistol.  The police were called and responded to the apartment of the suspect.  While in the house, the officers smelled marijuana and Grieves was subsequently also charged with drug violations.  The appellant, Christopher Scott Grieves,  appealed to suppress the drug charges because the officers didn’t have probable cause to search the apartment.  The court ruled that, “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.”  This case alone is proof that merely HAVING a gun displayed legally in public does not constitute Disorderly Conduct.

Our best chance is to defeat the required mens rea. Mens rea is a latin legal term defined as “an element of criminal responsibility, a guilty mind; a guilty or wrongful purpose; a criminal intent. Guilty knowledge and wilfulness.”

As we’ve already noted, Tex. Penal Code § 42.01(a) states that: “A person commits an offense if he intentionally or knowingly…” then § (a)(8) states: “displays a firearm or other deadly weapon in a public place in a manner calculated to alarm.” That second phrase “in a manner calculated to alarm” requires that the state not only prove that you carried a rifle, but that you did so in a manner calculated to alarm. It is not automatically assumed that carrying a rifle can only be done in such a manner.

This especially seems to be backed up by the fact that Tex. Penal Code § 46.02: Unlawful Carrying of Weapons, applies only to handguns, illegal knives, or clubs. Rifles and shotguns are blatantly omitted from the statute. The question then becomes whether one actually did alarm someone, as in did someone call 911? And even if so, was that person reasonably alarmed? The burden of proof as to one’s mental state for “intentionally” or “knowingly” seems to be the key.

“If the officer use excessive force and violence upon such person, such person being where he has a right to be, he may repel force by force, and if, in the reasonable exercise of self defense, he kills such officer, he is justifiable.” Plummer v. State, 136 Ind. 306. This premise was upheld by the Supreme Court of the United States in the case: John Bad Elk v. U.S., 177 U.S. 529. The Court stated: “Where the officer is killed in the course of the disorder which naturally accompanies an attempted arrest that is resisted, the law looks with very different eyes upon the transaction, when the officer had the right to make the arrest, from what it does if the officer had no right. What may be murder in the first case might be nothing more than manslaughter in the other, or the facts might show that no offense had been committed.”

“An arrest made with a defective warrant, or one issued without affidavit, or one that fails to allege a crime is within jurisdiction, and one who is being arrested, may resist arrest and break away. lf the arresting officer is killed by one who is so resisting, the killing will be no more than an involuntary manslaughter.” Housh v. People, 75 111. 491; reaffirmed and quoted in State v. Leach, 7 Conn. 452; State v. Gleason, 32 Kan. 245; Ballard v. State, 43 Ohio 349; State v Rousseau, 241 P. 2d 447; State v. Spaulding, 34 Minn. 3621.

“When a person, being without fault, is in a place where he has a right to be, is violently assaulted, he may, without retreating, repel by force, and if, in the reasonable exercise of his right of self defense, his assailant is killed, he is justified.” Runyan v. State, 57 Ind. 80; Miller v. State, 74 Ind. 1.

“These principles apply as well to an officer attempting to make an arrest, who abuses his authority and transcends the bounds thereof by the use of unnecessary force and violence, as they do to a private individual who unlawfully uses such force and violence.”Jones v. State, 26 Tex. App. I; Beaverts v. State, 4 Tex. App. 1 75; Skidmore v. State, 43 Tex. 93, 903.

“An illegal arrest is an assault and battery. The person so attempted to be restrained of his liberty has the same right to use force in defending himself as he would in repelling any other assault and battery.” (State v. Robinson, 145 ME. 77, 72 ATL. 260).

“Each person has the right to resist an unlawful arrest. In such a case, the person attempting the arrest stands in the position of a wrongdoer and may be resisted by the use of force, as in self- defense.” (State v. Mobley, 240 N.C. 476, 83 S.E. 2d 100).

“One may come to the aid of another being unlawfully arrested, just as he may where one is being assaulted, molested, raped or kidnapped. Thus it is not an offense to liberate one from the unlawful custody of an officer, even though he may have submitted to such custody, without resistance.” (Adams v. State, 121 Ga. 16, 48 S.E. 910).

“Story affirmed the right of self-defense by persons held illegally. In his own writings, he had admitted that ‘a situation could arise in which the checks-and-balances principle ceased to work and the various branches of government concurred in a gross usurpation.’ There would be no usual remedy by changing the law or passing an amendment to the Constitution, should the oppressed party be a minority. Story concluded, ‘If there be any remedy at all … it is a remedy never provided for by human institutions.’ That was the ‘ultimate right of all human beings in extreme cases to resist oppression, and to apply force against ruinous injustice.’” (From Mutiny on the Amistad by Howard Jones, Oxford University Press, 1987, an account of the reading of the decision in the case by Justice Joseph Story of the Supreme Court.

As for grounds for arrest: “The carrying of arms in a quiet, peaceable, and orderly manner, concealed on or about the person, is not a breach of the peace. Nor does such an act of itself, lead to a breach of the peace.” (Wharton’s Criminal and Civil Procedure, 12th Ed., Vol.2: Judy v. Lashley, 5 W. Va. 628, 41 S.E. 197).

Disclaimer: This post is not designed or intended to be used as legal advice. We are not attorneys and make no guarantees about our interpretation of case law and Texas Penal Code. This post in intended to be used purely for informational purposes.


8 thoughts on “The Elephant In The Room

  1. ProGunGuy

    Wilson v. State[16] discusses Plummer, depicting it as saying that it applies to the situation where the arresting officer is using excessive force such that unless the arrestee defends himself or flees, he is likely to suffer great bodily harm or death.[17] The Wilson court was careful to note that a person may not resist an unlawful arrest where the officer does not use unlawful force.[18] Other cases citing Plummer likewise noted that while a person may defend himself against an officer’s unlawful use of force, they may not resist an unlawful arrest being made peaceably and without excessive force. In 1995, the Seventh Circuit Court cited Plummer, noting that the privilege exists “not because its use is necessary to protect him from an unlawful arrest, but because it is the only way in which he can protect himself from death or serious bodily harm.”[19]

    Internet meme[edit source | editbeta]
    This case is widely cited on the Internet in blogs and discussion groups.[20] The most commonly quoted version is:

    “ “Citizens may resist unlawful arrest to the point of taking an arresting officer’s life if necessary.” Plummer v. State, 136 Ind. 306 [sic]. This premise was upheld by the Supreme Court of the United States in the case: John Bad Elk v. U.S., 177 U.S. 529. The Court stated: “Where the officer is killed in the course of the disorder which naturally accompanies an attempted arrest that is resisted, the law looks with very different eyes upon the transaction, when the officer had the right to make the arrest, from what it does if the officer had no right. What may be murder in the first case might be nothing more than manslaughter in the other, or the facts might show that no offense had been committed.”[21] ”

    The quote is a fabrication. There are no known examples of the above quotation being accompanied by a reference giving the year, the court, the state, or a link to the exact wording. The quoted text is not found in the text of Plummer or in any other known ruling by any court. In fact, the opposite is true—all of the cases that cite Plummer discuss the issue as defense against unlawful force, and most also note that a person may not use force to resist an unlawful arrest.[22]

  2. John Doe

    So if you white folks wake up and there is a young black kid standing on the sidewalk in front of your house with an AR strapped to his back then it is OK. He is just practicing his open carry and if you go out to confront him and a fight breaks out he can just use deadly force against you. Since the sidewalk is not your private property. So, instead you call the police and they refuse to respond sine he is just hanging out and not showing his weapon in an alarming manner. You might want to reconsider your stance on this subject since the issue is much bigger than you think.

    1. OCTexas Post author

      Young white kid, black kid, Asian kid, Hispanic kid….what does it matter? If he’s a kid, he probably shouldn’t be carrying a weapon without an adult, which means he’s breaking the law. But, for the sake of your racist argument, let’s assume you really meant twenty-something black kid. Guess what, hater? We have young black people in our organization. Don’t bring your race hate in here. We won’t bite. If we see someone, regardless of race, color, creed, peacefully carrying a rifle we have no problem with that. Seems the person that needs to reconsider their stance – on more than just the open carry issue – is you, Mr. John Doe. Take off your white hood and get in the present.

      1. guyw/question

        why does it have to be a rifle? per title 10 sec. 46.15.b says section 46.02 does not apply to a person who is traveling or is engaging in lawful hunting, fishing, or other sporting activity. so if you understand the difference between “driving” and traveling, then you can open carry a handgun too.

  3. Peter Figliozzi

    Great article, I just wanted to caution that in Texas it is *not* legal to resist an unlawful arrest. Please read Texas Penal Code 38.03 directly; it’s very clear:

    It is my understanding that in Texas it is legal to resist police use of *unlawful force*. However I can’t imagine any circumstance where it would be wise to do so, other than saving your own life.

    Here is a recent case from Texas where a woman is seeking $1 million in damages from false arrest and excessive force:


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