Don’t Mess with Texans


A recent press release by the Texas Department of Public Safety advises applicants for License to Carry to submit fully-completed applications with all supporting documentation to avoid potential delays due to an increase in application submissions.  In the three-month period between December 2015 and February 2016, the DPS noted a 139 percent increase in applications, receiving approximately 136,000 LTC applications compared to 57,000 during the same period one year ago.  DPS has increased staffing to meet demands.

DPS has 60 days to issue an original LTC and 45 days to issue a renewal license.  However, these deadlines do not run until a fully-completed application and supporting documents are received.  According to DPS statistics, as of December 31, 2015, Texas had 937,419 active license holders.  The surge in applications over the last three months means Texas will shortly top the one million mark of licensed carry holders.SRK Shooting

Get your holsters ready.  Get to the range, and practice, practice, practice.

Because…Texas, that’s why.

19th Annual Firearms Law Seminar to be Held May 20, 2016

The 19th Annual Firearms Law Seminar will be held on May 20, 2016 in Louisville, Kentucky. This Seminar coincides with the 135th NRA Annual Meetings and Exhibits. If you are an attorney and have an interest in firearms law, this is always an interesting and entertaining seminar.  I hope you see you there!

New Supreme Court Ruling Reinforces Heller

In Caetano v. Massachusetts, the United States Supreme Court reinforced its ruling in District of Columbia v. Heller vacating in a per curiam opinion a decision by the Supreme Judicial Court of Massachusetts concluding the Second Amendment does not apply to stun guns.  The opinion was direct and rather terse, succinctly discarding handily all of the bases upon which the lower court based its decision.

In response to the lower court’s explanation that stun guns are not protected because they were not in use at the time of the enactment of the Second Amendment, the Supreme Court noted this is “inconsistent with Heller’s clear statement that the Second Amendmentextends . . . to . . . arms  . . . that were not in existence at the time of the founding.’”  As to the court’s conclusion stun guns are unusual because they are a “thoroughly modern invention” and thus within an “important limitation on the right to keep and carry arms,” the Supreme Court explained this reasoning is also inconsistent with Heller because it equated “unusual” with “in common use at the time of the Second Amendment’s enactment.”  The lower court also used a “contemporary lens” and found nothing to suggest stun guns are readily adaptable to military use.  The Supreme Court again rejected this argument on the basis Heller had rejected the notion “that only those weapons useful in warfare are protected.”  The Supreme Court went on to conclude “the explanation the Massachusetts court offered for upholding the law contradicts this Court’s precedent.”

Justice Alito, in a concurring opinion with whom Justice Thomas joined, gave background on Jaime Caetano’s interest in the matter noting she had been in an altercation with an abusive boyfriend which put her in the hospital and fearing for her life.  Multiple restraining orders proved futile.  After a friend offered her a stun gun for protection, she accepted.  Caetano’s ex-boyfriend towered over her by nearly a foot and outweighed her by nearly a 100 pounds.  One night as Caetano left work, she found her boyfriend waiting for her, and he began screaming at her.  She stood her ground, displayed the stun gun and announced she was not going to take it anymore.  The ex-boyfriend left.  When police later discovered the weapon, she was arrested, tried and convicted.  As Justice Alito noted, “Caetano’s mere possession of the stun gun that may have saved her life made her a criminal.”  Justice Alito offered biting criticism of the Massachusetts Court noting the Heller Court previously had rejected similar arguments as “bordering on the frivolous.”  He further reasoned, “[t]he reasoning of the Massachusetts court poses a grave threat to the fundamental right of self-defense.”  Perhaps his most stinging criticism is as follows:

A State’s most basic responsibility is to keep its people safe.  The Commonwealth of Massachusetts was either unable or unwilling to do what was necessary to protect Jaime Caetano, so she was forced to protect herself.  To make matters worse, the Commonwealth chose to deploy its prosecutorial resources to prosecute and convict her of a criminal offense for arming herself with a nonlethal weapon that may well have saved her life.  The Supreme Court then affirmed her conviction on the flimsiest of grounds. . . .  If the fundamental right of self-defense does not protect Caetano, then the safety of all Americans is left to the mercy of state authorities who may be more concerned about disarming people than about keeping them safe.

Don’t you just want to high-five him?  Frankly, as a woman, I find the actions of Massachusetts appalling.  Was this the case on which you wanted to take your stand—upholding the conviction of a woman for possessing a non-lethal, commonly-owned weapon who simply was trying to protect herself from an abusive ex-boyfriend?  Shame on you.  Instead of congratulating her for remaining strong, vigilant, and defending herself, you convicted her for possessing a weapon not available in the 1700’s.  Good job.  And, I say that in my most sarcastic tone of voice.

This decision is important for several reasons.  First, it reaffirms Heller.  This is the law of the land folks, and even Massachusetts must follow it.  Second, while the Supreme Court stopped short of holding stun guns are protected as “arms” by the Second Amendment, it implies it.  Third, there were no dissents in the opinion, meaning even the more liberal justices endorsed the opinion.  How could they not?  The Caetano facts were not the ones to draw the line in the sand.  How could any other holding be anything but anti-woman or anti-equality?  You deprive a woman the right to protect herself from a known abuser with a non-lethal weapon?  If it were not before the Supreme Court, it would be hard to believe the highest Court of any state could affirm and endorse such a bone-headed, unsympathetic, egregious law and prosecution.

Fourth, I believe the also indicates it will be very difficult to overcome Heller, despite the current concerns with the placement of a new Justice on the Supreme Court.  While I do not believe for one second this will deter the anti-gun lobby from continuing to push for gun control, I believe their fight will be more difficult, and precedence will carry much weight in the future decisions of the Court, regardless of the political ideology of its Justices.

Bystander Claims for SWAT Response under Section 1983

I recently ran across an interesting Fifth Circuit Court of Appeals case while doing some research in a section 1983[1] claim. I found its analysis interesting and its potential applications in future cases in which a bystander may claim a deprivation of right against law enforcement officials intriguing.  As most law enforcement officers are aware, persons (or municipalities and local government entities) acting under color of state law may be liable for some deprivation of a recognized right. The law surrounding section 1983 litigation is enormous. The courts have ruled various types conduct or failures amount to “deliberate indifference.” Section 1983 liability is not limited to claims by those in custody. It will apply to any citizen of or person present in the United States who is subjected to a deprivation of protected right.

In Salas v. Carpenter[2], a county court clerk had complained to the Tarrant County District Attorney her estranged husband had sexually molested her two daughters from a previous marriage. Her estranged husband later entered offices at the courthouse with two guns, holding the clerk hostage. The Tarrant County Sheriff’s Department and Fort Worth Police Department both responded. Fort Worth PD dispatched its SWAT and hostage negotiation teams to the scene. In a heated discussion, the Tarrant County Sheriff demanded Fort Worth PD officers leave claiming courthouse security was within the exclusive jurisdiction of the Sheriff’s Department. The Sheriff’s Department did not have a SWAT team at that time. After failed negotiations and with no SWAT team with weapons and training for a dynamic entry for rescue, the estranged husband killed the clerk and himself. The clerk’s Estate brought suit under section 1983 and state tort law. The Estate claimed the sheriff acted with deliberate indifference in multiple regards as to the clerk’s life.

Ultimately, the Court of Appeals concluded the Estate had failed to allege a deprivation of right protected by the Fourteenth Amendment[3] (and thereby section 1983). Contrary to the Estate’s allegations, the Sheriff did not prevent a rescue, he exercised his authority to replace one rescue effort with another. The Court also distinguished this case from others where the actions of police failed to take action to alleviate a danger they created or aggravated. The Sheriff did not create the hostage situation or abandon the hostage. The Court noted while some may argue the Sheriff acted negligently, it did not give rise to a civil rights violation.

The discussion in Salas is instructive.  At the time of the decision—1992—the court noted the Fourteenth Amendment did not require training and equipping the Sheriff’s Department with special SWAT or hostage negotiation duties or provide a right to protective services such as ambulance service or fire-fighting equipment. Because there is no constitutional duty to provide these services, the failure to provide them does not deprive due process. Moreover, the Estate attempted to use the Sheriff’s public statements to the media after the event as evidence of deliberate indifference, but the Court concluded this only aided in establishing the Sheriff’s qualified immunity as he did not believe a SWAT team had been necessary. Notably, the Court stated: “We do not say that this crisis was properly handled or that Sheriff Carpenter made no mistakes. We say only that there was no denial of Juanita Hermisillo’s constitutional rights.”

Salas also is important because the Court concluded there is not constitutional duty to provide SWAT capability or specialized law enforcement units. However, Salas was decided in 1992. Since then, numerous law enforcement departments have begun utilizing SWAT teams.  It is possible depending on the nature of the case and facts involved as well as development of standards in the industry essentially dictating the use of SWAT teams, a later court could find a duty exists.

The facts of Salas obviously were tragic. Unfortunately, law enforcement officers often are criticized by the public and the media after the fact for judgment decisions made with only seconds to consider. Fortunately, the Salas case recognized the judgment and discretion necessary for law enforcement departments to do their jobs. Qualified immunity is to prevent litigation where it will:

unduly inhibit officials in the discharge of their duties. Second-guessing the decision of law enforcement officers regarding the choice of police personnel in a crisis would undermine that policy. Lawsuits alleging that police should have acted one way or another in response to a hostage situation ‘pose[ ] a no-win situation for the police and do[ ] nothing to encourage law enforcement or respect for constitutional rights.’

In the meantime, I hope none of my law enforcement friends finds themselves in a situation like this. Stay safe out there!

[1] 42 U.S.C. § 1983 (“Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer’s judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia.”)

[2] 980 F.2d 299 (5th Cir. 1992).

[3] All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Texas Independence Day

Happy Texas Independence Day!

Today is one of my favorite days of the year.  I love Texas.  It is more than just my home.  It is a land of great tradition and pride.  Texas has a history rivaling some of the greatest stories of all time.  Texans are proud and strong people, full of grit and a bull-headed mentality which gets the job done.  Perhaps Texas is best described by John Steinbeck:

Texas is a state of mind.
Texas is an obsession.
Above all, Texas is a nation in every sense of the word.

I am a native Texan, and the pride of my heritage runs deep.  Texas is as diverse and unique as any other.  My ancestors include Germans, Native Americans, tenant farmers, and pardoned bootleggers.  Texas has its own food and its own dialect, and there are even different dialects within this one Texas dialect.  Texas may be southern, but not all Southerners are Texans.  We have coastlines, mountains, deserts, and canyons.  We have lakes, rivers, and bayous.  Texas is the largest state in the contiguous United States.  If it were a country, it would be the 40th largest country in the world.  If Texas were a country, it would rank as the 12th largest in the world by Gross Domestic Product.  On Interstate 10, from the border of Texas and Louisiana to the border of Texas and New Mexico, you would have to travel over 880 miles to make it across this great State.  When we say things are bigger in Texas, we mean it.

You may wonder how Texas Independence Day is relevant to a firearms and law enforcement legal blog.  Texans are not strangers to the fight against Battle of Gonzalestyranny and the preservation of the basic right to defend yourself with a weapon.  When General Santa Anna assumed a military dictatorship of Mexico, he intended to reduce his militia and disarm the remainder of the inhabitants.  The Texas colonists in Gonzales had been given a cannon to defend themselves, and when Colonel Domingo de Ugartechea demanded return of the cannon, the people refused.  He sent forces to retrieve the cannon, yet those soldiers were forced to withdraw when the resistance of the Texans proved too difficult.  The Battle of Gonzales is considered the start of the Texas Revolution.  In a symbol of defiance, the Texans created a flag with the phrase “come and take it” with an image of the cannon.

The right to bear arms not only is important to Texans, it is a part of their history.  The Texans later declared their independence from Mexico on March 2, 1836.  This history and heritage inspires a certain amount of passion and pride in Texans.  I know of no other state embracing and celebrating the fortitude and determination of its founders as a mantra for their lives and existence.

A born Texan has instilled in his system a mind-set of no retreat or no surrender.  I wish everyone the world over had the dominating spirit that motivates Texans.
~ Billy Clayton, Former Texas Speaker of the House

If you are not a Texan, I am sure this strength and pride comes across as arrogance or bravado.  But, beneath that pride and bravado is a sustaining force of will pushing us ever forward yet maintaining our innate desire to be free and unbound by the reigns of tyranny.

I have said that Texas is a state of mind, but I think it is more than that. It is a mystique closely approximating a religion. And this is true to the extent that people either passionately love Texas or passionately hate it and, as in other religions, few people dare to inspect it for fear of losing their bearings in mystery or paradox. But I think there will be little quarrel with my feeling that Texas is one thing. For all its enormous range of space, climate, and physical appearance, and for all the internal squabbles, contentions, and strivings, Texas has a tight cohesiveness perhaps stronger than any other section of America. Rich, poor, Panhandle, Gulf, city, country, Texas is the obsession, the proper study and the passionate possession of all Texans.”
~ John Steinbeck

Happy Texas Independence Day!  I hope you never are required to fight against oppression or tyranny but answer the call if ever called to do so.


Shooting as My Olympic Sport

I don’t know about you, but I am very excited about the Olympics this summer, in particular the shooting events. USA Shooting announced a campaign to the entire shooting community to become Fans of the US Olympic Shooting Team going to Rio this summer. Take a look and cheer them on!