Sudden Furor Over Texas Law

October 1, 2018

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Sudden Furor Over Texas Law

There has been a little flurry of outrage in the last two weeks over a 2014 Texas law that prohibits members of motorcycle clubs from legally carrying firearms.

The excitement is the result of an article by David “Double D” Devereaux on his website Motorcycle Profiling Project and the almost simultaneous detention and arrest of between two and four associates of the Vagos Motorcycle Club in Forth Worth a week ago. Devereaix references an El Paso case and erroneously reports “A jury in El Paso, Texas decided Friday that it is illegal for a member of the Bandidos Motorcycle Club to possess a weapon in the state.”

What the jury actually decided was that Derek Thomas Kelly was guilty of “the offense of unlawfully carrying a handgun in a vehicle as a member of a criminal street gang” which lawyers should know is Tex. Pen. Code Ann. §§ 46.02(a-1)(2)(C), 71.01(d) (West Supp. 2014).

The jury did not make any law. The law Kelly was convicted of breaking has been on the books since 2014. It appears that peace officers in Texas have recently been advised to start enforcing the law as a way to harass motorcycle club members. Besides the inconvenience of being arrested, bailing out and going to trial, Kelly had his colors seized as evidence until the conclusion of his case, he was billed $307 in fees and his gun was confiscated.

All Perfectly Legal

He was the victim of a bad law that has already been appealed at least once in Texas: To the Fourteenth Court of Appeals in Harris County in November 2015, where justices Martha Hill Jamison, Marc W. Brown and J. Brett Busby decided that the Texas law as perfectly legal. Busby wrote the tortured 21-page decision. He wrote:

“…appellant argues the statute violates the First Amendment to the United States Constitution because it is a content-based regulation of expression that fails to satisfy strict scrutiny and because it restricts freedom of association. We conclude the statute is not subject to strict scrutiny because it is justified without reference to the content of any expression and does not infringe any right of intimate or expressive association. In his second issue, appellant argues the statute is unconstitutional because the terms ‘criminal street gang’ and ‘member’ are overbroad. In his third issue, appellant argues the statute is unconstitutionally vague and provides law enforcement with unfettered discretion to arrest individuals. We conclude that appellant’s arguments rely on an incorrect construction of the statute and that the statute is neither overbroad nor vague when correctly construed.”

Busby accepts the state’s definition that a “criminal street gang” is “three or more persons having a common identifying sign or symbol or an identifiable leadership who continuously or regularly associate in the commission of criminal activities.”

“Appellant contends section 46.02(a-1)(2)(C) implicates the First Amendment because it prohibits an individual from carrying a handgun in a vehicle at any time the individual has an identifying sign or symbol,” Busby lectures. “According to appellant, the provision regulates expressive conduct based on its subject matter because a gang’s signs, symbols, and attire are intended to convey the gang’s existence and presence. Appellant argues that the statute is a content-based restriction of speech because its application depends on the identifying content of the sign or symbol displayed. Thus, the statute must satisfy strict scrutiny, which appellant contends it cannot do because there are less speech-restrictive means of achieving the State’s asserted safety interests. We conclude, however, that the statute is subject to intermediate scrutiny.”

“For these reasons, we conclude that even if the statute implicates the First Amendment, a correct construction demonstrates that the statute (1) is sufficiently clear to afford a person of ordinary intelligence a reasonable opportunity to know what is prohibited, (2) establishes determinate guidelines for law enforcement, and (3) is sufficiently definite to avoid chilling any protected expression.”

Busby and his fellow justices never question the police assertion that people join motorcycle clubs not to ride motorcycles but to “continuously or regularly associate in the commission of criminal activities.”

Federal Case Law

The law has never been contested in a civil rights lawsuit in federal court but there is a significant body of case law that suggests the Texas law would wither under federal scrutiny.

In general, federal courts have held against so-called “gang injunctions” (most recently in Los Angeles this spring) and limited restrictions on symbolic expressive content (like patches and shirts) to schools. In 1997 in a case titled Phillips v. Anderson County School the Supreme Court ruled that a school could ban the display of the Confederate flag because “based on prior incidents of racial tension and unrest it was reasonable to believe that such a symbol would cause substantial disruption of the school’s environment.”

Other than that, America remains a nation where grownups enjoy the right to dress themselves. Even deep down in the dark heart of Texas.

The Supreme Court has also ruled that that, in general, religious displays may be banned from government buildings and land because that would be an unconstitutional commingling of church and state.

Various municipalities have attempted to implement “gang injunctions” which restrict the display of certain symbols but various federal courts have ruled that those bans violate criminal due process as does the Texas Law forbidding carrying a firearm in a car while wearing a Bandidos, Cossacks, Kinfolk, Mongols, or Vagos belt buckle.

The Supreme Court has overruled a similar, although less offensive, Texas law before. In Texas v. Johnson the highest court ruled that flag burning constitutes a form of “symbolic speech” that is protected by the First Amendment.

Biker Symbolism

Finally, in August 2002, in a case titled Sammartano v. First Judicial District Court, in and for the County of Carson City, the U.S. Ninth Circuit Court ruled against a ban on motorcycle club insignia because they illegally prohibit freedom of expression. That appeals court reversed a ban in March and April 2001 on motorcycle club insignia worn by members of The Branded Few, His Royal Priesthood, and the Hells Angels Motorcycle Clubs. The lead appellant in that case, Franklin Sammartano, was banned from the courthouse for wearing a denim jacket bearing both a Harley-Davidson logo and a small American flag on the front next to the words “Try to burn this asshole.”

Among other things, the Carson City Courthouse had argued that “clothing, attire or colors which have symbols, markings or words indicating an affiliation with street gangs, biker or similar organizations…can be extremely disruptive and intimidating, especially when members of different groups are in the building at the same time.” The Ninth Circuit found no proof that the Carson City Courthouse’s assertion was true.

In the recent Texas cases the defendants were labeled criminals based on an assumption, not on any contestable accusation.

The Texas restrictions on members of criminal street gangs clearly violate due process. Federal courts have never ruled that any motorcycle club is an exclusively criminal, as opposed to fraternal, organization. To simply declare that any club is criminal violates due process. It also conflicts with a 2008 civil rights case titled Ramon Rivera versus Ronnie A. Carter, Acting Director, Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF); John A. Torres, Special Agent in Charge, ATF Los Angeles Field Division; and Eric H. Holder, United States Attorney General.

The reason why Texas courts continue to get away with this nonsense is because nobody yet has bothered to challenge these bad laws in federal court. Individual victims of these unconstitutional laws never have the means to hire a lawyer to pursue these cases for them. There is no sure payoff at the end so competent lawyers don’t take them on contingency. In the case above, Rivera was represented by a lawyer named David Blair-Loy of the American Civil Liberties Union of San Diego County.

Unfortunately, for all practical purposes, Texas doesn’t have an ACLU.

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34 Responses to “Sudden Furor Over Texas Law”

  1. Snow Says:

    The way I see it is your first mistake is thinking Texas is a gun friendly state, that’s bullshit and always has been. Yiu need a permit to wipe your ass if you’re carrying. Second is any ACLU getting involved to help nonsense. Third is believing anything that double D writes is true. His bullshit is 40 miles long.

  2. Thunderbird Says:

    All our natural rights are being stripped from us by administrative law; a form of law that was imposed on us without our consent in the latter half of the 20th century. It has nothing to do with constitutional law or the bill of rights.

    What you all are talking about here is administrative statutes and the rules & regulations that flow out of these statutes.

    Administrative law is now the law of the land. This law was not put into place by the consent of the people.As many can see many of these administrative laws have no common sense and seem arbitrary. That is because they are arbitrary and made up by people who think they know best how everyone should live.

    Having knowledge doesn’t mean one understands that knowledge. Only experience can verify knowledge. What is happening in our judicial system is idiots run it.

    So what are we to do during this period of mass insanity? Watch our ass and stay low. There is no changing the road we are going down.

    Those with open eyes and ears and a cool collective will do best in avoiding the hazards ahead. We are on a downhill road to mad max in this country. The professional class who should see the danger are captured in the life of luxury and that is a sad fact of our dying culture.

    Administrative law; a form of law imposed on the people without our consent, is designed to control every aspect of our life. Notice that every new law, rule or regulation is designed to control the actions and desires of people? The law has no positive function. Yet people continue to accept it. And as long as the majority are mesmerized by it the individuals in our society will continue to suffer the forced curtailment of our natural freedoms.

    The only positive is that everything passes in time. Nothing lasts forever.

  3. oldskewl Says:

    All- re the CCW in Calif. Just got off the phone with my gun store rep and CCW class instructor. The prohibited areas he was explaining to me was regarding my particular choice in ammo I use.

    The permit is good anywhere in the state other than the typical restricted places in the permit.

    OS

  4. oldskewl Says:

    @ Lunchbox.

    I just went through this and because it was a repeat of my earlier class 2 years prior I was kinda sleeping at the wheel during it.
    As I remember it, if you’re passing through SF on say the 101 or hwy 80 you’re completely fine. It’s if you stop in the city and are walking around it them becomes a SF City PD rule within that city.

    I’ll get to everyone on here and clarify from my local gun shop where I take the class and buy my guns.
    I believe the same rule applied to being in LA City and walking around. I could be wrong and I want to make sure for my own knowledge so I’ll get back to everyone here.

    Last year I was in a liquor store in my little town and some trailer trash women seen I was strapped when I reached for my wallet, she walked outside and called the cops. A sheriff must of been with a one block radius because before I even left the store he was pulling into the parking lot.
    He walked up to me as I was getting in my truck and asked if I was carrying, I told him I was and asked if he wanted to see my CCW… He said “is your permit valid” and said it was and he said “ok”. He didn’t ask to see my weapon or the permit.

    I just glared at that fat bitch in her shit stained Subaru and laughed. Called her a fucking snitch too, right in front of the sheriff.
    I love my county and their attitude towards carrying. It’s just not a big deal to them, kina like Alaska, they expect it.

    Have a great day (I’ll get back to you with my definitive answer from the CCW class guy)

    OS

  5. Paladin Says:

    @ oldskewl;

    Hopefully the attached link will clear up the miss-information you have been given. https://lawcenter.giffords.org/concealed-weapons-permitting-in-california/

    Paladin

  6. Lunchbox Says:

    @oldskewl
    to follow up my previous statement. I searched the SF police department website. It seems there is three specific brands of ammo that are outlawed.
    Winchester Black Talon
    Federal Premium “Law Enforcement Ammunition Tactical”
    Hornady “TAP (Tactical Application Police) Law Enforcement Ammunition

    https://sanfranciscopolice.org/san-francisco-municipal-police-code-618-prohibited-ammunition

    and no mention anywhere that CCW is illegal. There seems to be a restriction on carrying at public protests or parades but that’s about it.

    I wear a patch and carry on a regular basis. In fact I have had a couple run ins with LE.
    1) I was pulled over for speeding on my bike. (CHP) First thing out of my mouth was Officer I have a CCW. He asked me where it was and if I had a permit. He ran my license and sent me on my way with a warning.

    2) I wrecked said motorcycle, and told the first officer on seen I have a ccw (lassen county Sheriff). Mainly the reason I let her know was because I carry it at the 430-500 o’clock position in IWB and I slid down the highway on my back for 30-40 ft so I wanted to make sure it was still there and not laying on the highway. She checked and it was there, she took it and put it on the seat in her car until CHP arrived at which point she gave it to them. Before I left with my wife to go to the hospital the CHP officer gave it back to me.

    While neither of these events were in SF, they (SF) are bound by state law and if you are legally carrying you will be fine.

    The SF police website had nothing about a complete ban on CCW because that would be illegal under state law.

  7. Lunchbox Says:

    @oldskewl
    “If I’m carrying and I cross into SF county and get caught it’s an automatic loss of my CCP, no exceptions.”
    Don’t know where you got that but its wrong. You may get harassed by SF police but they cannot take your permit. They may even take your weapon and try to charge you. Get a good lawyer and you will win it. However SF does have some wacky law about carrying hollow points, that can get you in hot water. Your permit is good statewide, and the only places you cant carry are places like a Bank, courthouse, and schools. I live in Lassen county and just went thru the process to get my permit.

  8. oldskewl Says:

    Paladin Says:
    October 2, 2018 at 1:06 pm
    @ oldskewl;

    Unless there is a specific restriction attached to your CCW, your permit is valid throughout CA, even in SF.

    I wish that were true but it’s not the case. Everyone and their brother would simply change their driver’s license to a different address (like a friends address) and apply for a permit in a gun friendly county.

    trust me, I just went for my renewal two months ago and and had to sit and listen to how each county and the rules for each one. we were also given pamphlets with each counties rules.

  9. Hideout Says:

    Things like this make me glad I left Texas in 1973.

  10. Freebird Says:

    Well the good thing is this turd is out of the dark and into the light…..

    Looking forward to watching the feathers fly

  11. Paladin Says:

    @ oldskewl;

    Unless there is a specific restriction attached to your CCW, your permit is valid throughout CA, even in SF.

    Long May You Ride,

    Paladin

  12. Curbside Says:

    Rebel, Mr. Devereaux appeared to have it right the first time, at least as I see it…while it is true the law has existed for quite some time, there’s another issue at hand. It was the cops who made the arrest, the prosecutor who decided to bring the case to trial, and the jury who decided to convict, who are stepping outside the bounds of what the law actually says. That is what is “new” about it, where the law was not applied correctly but the jury decided it fits.

    His follow-up article goes a bit further into detail about the issue:

    http://www.motorcycleprofilingproject.com/authorities-misapplying-texas-law-to-disarm-bikers/

  13. rocco151 Says:

    @oldskewl +1

  14. Kat Says:

    @ oldskewl…You hit the nail on the head

  15. Psycho Says:

    It would have made far more sense to say this violated the 2nd amendment than the 1st. That being said, it reminds me of a case called Cohen v. California that went to the Supreme court 30 some years ago. A guy wore a jacket into a courthouse with “fuck the draft” on his jacket. After going through all levels of appeal, it ended up with the Supreme Court deciding that it wasn’t fighting words, since it’ impossible to literally fuck the draft, and that freedom of expression or speech is separate from conduct. That’s why since this case, and US v. Obrian, (about burning draft cards), “criminal activity” is always connected by law enforcement to anything having to do with collective membership marks worn by motorcycle clubs. Our colors are protected by the 1st amendment, and our gun rights are protected by the 2nd amendment, but since “conduct” isn’t considered free speech, they feel they can infringe on our rights if they make up a criminal conspiracy, by which everyone who likes to ride motorcycles is also a criminal mastermind, hellbent on the destruction of all that is good and innocent in this world.

    Psycho

  16. oldskewl Says:

    Rebel, our state guns laws are stupid and make no sense whatsoever. In El Dorado county the sheriff wants everyone to carry, he supports damn near anyone without a felony to carry, even with past convictions of DUI’s (conviction must be 6 years old or more) and numerous misdemeanors, again, a certain time period must pass before you get the green light but it’s not a long time.

    Now, in LA, you can’t get a CCW unless your a retired cop or some sort of security guy. Each county has their own set of rules. If I’m carrying and I cross into SF county and get caught it’s an automatic loss of my CCP, no exceptions.

    I think there’s a case headed towards the SC in Calif for the right to carry in all of Calif once you’ve passed the CCW test and background check. Problem is, you gotta live in a CCW friendly county to get one.

    Have a great day,

    OS

  17. Rebel Says:

    Dear L-Frame S&W,

    There are a lot more restrictions on the right to keep and bear arms than there are on what kind of clothes you can wear. The law on free expression is quite black and white with minimal exceptions. Gun laws are different. I live in Los Angeles where there are many restrictions on gun ownership. One needs a background check to buy a box of cartridges. Virtually no one can get a concealed carry permit. And, that is all perfectly legal.

    Rebel

  18. oldskewl Says:

    @ Kenny: I think we’ve seen more punishment and bad intentions with Obama in office than Trump. But in the end, it seems the alphabet agencies work on their own without input but the president, in fact it looks as if the FBI and CIA would love to kick Trumps ass out of the WH and give it to Hillary so your comment about “Trump and his kind” seems to be out in “left” field.

    Just my opinion but globalisation works on all fronts. The USA was headed towards a Star Trek type of life where all countries participate and the people all work for the government in an collective effort.. They want the USA to follow gun laws of the UK and Australia and they’d love nothing more than to follow to hard line Australia has on bikers too.

    Trump is pro 2nd amendment right? Hillary wanted huge gun control. Why point the finger at Trump as if he’s done something to thwart your right to own or carry a firearm? Trump did ban bump stocks.. ever use one? they are worthless garbage and you can’t hit target with them but you sure can do a whole lot of damage from a hotel window aiming at 20k people in a concert.

    For all California is not and for all the BS we put up with here, they are implementing an anti profiling law for bikers. We get pulled over for patches constantly, no need for any law breaking, just having the patch is enough to get pulled over for. And yes, I have a CCW and wear a patch but I make sure when I’m carrying I’m doing so within the law because I’m not about to bring down heat on the club.

    When it comes to firearms, Texas has always been the “anything goes” state but that’s changing, so are the people who live there. I’d venture to say Texas gets a hundred thousand California transplants per year and that’s an issue. Austin is a liberal city just like Berkeley or Portland.

    I’ll stick with whoever protects my rights to carry and wear what I choose. It doesn’t always have to be a republican or democrat.

    Have a good day,

    OS

  19. Kenny Says:

    This is more of what Trump and his kind want. They are lining up clubs as the new terrorist.Any real 1%er knows we expect this treatment. They have systematicly inprisioned our leaders. Using RICO and Conspiracy laws. Yes joining a club paying dues is legal. Yet they would craft laws to make being free anything but free.Why u think any gov agency cares about our rights is a running joke. BFG…

  20. 31st Says:

    Bones glass, right because the wise Latina and the old jewbagsee ginsburg have done so much to protect 2nd amendment rights, you fucking idiot.

  21. freebird Says:

    @ Bones_glass_1973

    Yep…….

    Constitution……. what constitution

  22. L-Frame S&W Says:

    Perhaps a better strategy would be to pursue this as a violation of the 2nd amendment, rather than the first. Make the state show just cause for violating Mr. Kelley’s constitutional right to carry a firearm.

    L-Frame S&W

  23. Willie Says:

    5
    Therefore, law enforcement cannot “decide arbitrarily which members of the public” will be subject to the statute. Id. at 58, 119 S.Ct. 1849 (plurality op.).
    Someone help educate me if I am wrong.

  24. Willie Says:

    4
    Moreover, law enforcement MAY NOT arrest a person under this section merely because they recognize gang signs or symbols. Instead, law enforcement MUST ALSO DETERMINE whether the person is carrying a handgun in a vehicle AND whether he or she continuously or regularly associates in the commission of criminal activity.

  25. Willie Says:

    3
    —–It decided in part
    “Id. at 508 (footnotes omitted). For similar reasons, we conclude that section 46.02(a-l)(2)(C) DOES NOT provide law enforcement with unfettered discretion to arrest individuals or otherwise authorize and encourage arbitrary and discriminatory enforcement.

  26. Willie Says:

    2
    I also read in this decision, knowing I am not a lawyer but seems to have more than what is cited. I read
    —–It decided in part
    “Id. at 508 (footnotes omitted). For similar reasons, we conclude that
    .

  27. Willie Says:

    Case name is “Ex parte Flores” Court of Appeals of Texas, Houston (14th Dist) opinion filed November 10, 2015. The legal citation to look it up is 483 S.W. 3d 632.

  28. Bones_glass_1973 Says:

    As soon as kavanaugh gets on the bench this type of shit goes 5-4,as the japs say sy-a-nar-ah motherfuckers

  29. Curbside Says:

    Every patch-holder in Texas kinda got fucked by this one. His public pretender didn’t bring up the constitutional issues at trial, so if/when he files his appeal, it will have to be filed on grounds of ineffective counsel.

    Before that even happens, the appeals court has to send it back for retrial. The DA has to decide to either retry the case, or dismiss it…which will only cost them the amount of the fine and return of the firearm. Only *IF* the case is re-tried, and *IF* his new lawyer raises the issues in court, and *IF* he’s convicted again, is he eligible to bring those constitutional issues up in an appeal.

    That’s a whole lot of time and money that likely won’t be spent.

  30. Paladin Says:

    The government and law enforcement are going have a much harder time if clubs decide to stop wearing obvious identifiers.

    Paladin

  31. 31st Says:

    TexASS

  32. Coffee Addict Says:

    motorcycle police fit this definition.

  33. Freebird Says:

    If my research is correct a person who holds a CHL in Tx can ride over the border into New Mexico and not have to worry about criminal street gang bullshit.

    Having passed a Federal background check required to get a CHL should trump any state sucker punch law

  34. Phuquehed Says:

    The stars don’t seem to be shining too bright into the heart of Texas the past decade. More like the darkness from its ass – i.e. the corrupt pigs, judges, courts, justice system there – is covering up what Texas folk *used* to think was the greatest state in the Union for freedoms and such. What a fucking farce that turned into.

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