Gun-Law Traps That Can Bite Your…

By Woody published on in Chronicle, Gun Rights, Legal Issues, Second Amendment

Cheaper Than Dirt! recently sat down with T. Edwin Walker, president of Texas Law Shield, LLP, a 70,000-member licensed legal services company  based in Houston. Texas Law Shield (TLS) provides legal representation to all legal gun owners and assists its members in obtaining federal approval to own and possess items regulated by the National Firearms Act. TLS’s contract lawyers have extensive civil and criminal trial experience in representing thousands of legal gun owners, including civilian, law enforcement and military personnel.walker_slider

Walker himself is a native Texan who earned his bachelor and law degrees at the University of Houston. He has been practicing law in the State of Texas since 1993 with an emphasis on criminal defense. He is a member of the State Bar of Texas, Texas Criminal Defense Lawyer’s Association and the Harris County Defense Lawyer’s Association. He frequently speaks on use of force and issues relating to the National Firearms Act for legal ownership of machine guns, suppressors and short-barreled weapons.

We caught up with him at a packed TLS member seminar in Houston on November 12 and asked him wide-ranging questions about gun laws and their enforcement. He matter-of-factly named a few areas that can catch gun owners unaware.

CTD: First, to clear up some questions: Is what TLS offers insurance?

Walker: Absolutely not. We are a Texas-licensed  legal services company dedicated to preserving all of our 2nd Amendment Rights.

CTD: Do I have to shoot someone to be covered?

Walker: No. Our program covers you if you “use” your firearm as a weapon. Our members are covered under the Texas Law Shield Firearms Program any time our member displays a firearm for the purpose of using the firearm as a weapon to stop a threat, or has to pull the trigger and discharge the firearm. If you take a gun into a prohibited place — airport secured area, sporting event, bar — this act is not a use of a firearm and is not covered under the program. Also, our programs are designed to protect you in “use of force” scenarios. An accidental discharge is not a “use” and is not covered under the program — that is, if you’re cleaning your gun and it discharges, or you have a hunting accident, to name two examples.

CTD: Are your services available only in Texas?

Walker: No, we have similar programs in Colorado, Florida, and Oklahoma. For our members who travel outside of Texas with a firearm, we offer a multi-state option in which members receive the same legal benefits that they enjoy in Texas. This includes criminal as well as civil legal defense. The covered states under the multi-state option are Alabama, Arizona, Arkansas, Colorado, Florida, Georgia, Indiana, Louisiana, Mississippi, New Mexico, Oklahoma, Pennsylvania, Tennessee, and Virginia.

CTD: Okay, what are some gun laws we should be worried about?

Walker: Well, one is pending. This summer, the White House issued a press release regarding new executive actions by Barack Obama. One item of the press release spoke about the requirements to legally obtain possession of NFA weapons by using trusts. It spoke of a so-called “loophole” that the President wishes to close. Major media outlets are reporting the topic in such a way as to imply that the executive order is already effective, and that NFA Trusts now require you to jump over bureaucratic hurdles previously only required for individual ownership, such as a Chief Law Enforcement Officer certification, finger printing, and background checks for all trustees. Currently, the rule is only proposed; but it remains a very real threat on the horizon if we, the citizenry, do not do something about it. In the meantime, for anyone who has been considering purchasing a suppressor, short-barreled weapon, machine gun, or AOW, now may be the time to do it, because it may be much more difficult with an NFA trust after December 8th. With regard to pending NFA applications, based on how the ATF has treated things in the past, it is possible that ATF will process applications normally until the new rule goes into effect, though likely at a slower rate due to a sudden increase in demand.

However, there is no definite answer as to what the ATF will choose to do regarding applications still being processed when the rule becomes effective. It is equally possible that they will be grandfathered in, or that they will be rejected on the grounds that they weren’t submitted on a new form.

CTD: One question a lot of gunowners have is whether their choice of firearm and ammunition can impact their legal defense, if it comes to that.

Walker: That’s one of most frequently asked questions of our lawyers: “Does it matter what ammunition I use in my handgun from a legal perspective?” The short answer is: probably not. From Texas law’s point of view, if you have been forced to use your firearm to defend yourself, others, or property, usually the ammunition used will not be the main focus of the legal inquiry. Generally, the focus is instead on the circumstances and facts surrounding “why” you had to fire your gun in the first place; i.e., was deadly force immediately necessary to defend yourself from death, serious bodily injury, etc. Ammunition is nothing more than a means to an end of safety, merely a tool; so use the best legally available resources you can find for your situation. The only type of ammunition that in Texas is illegal to possess and use is “armor-piercing” handgun ammunition. This ammo is not sold by licensed dealers or other reputable sources.

Unfortunately, not every state can be as reasonable as Texas. Some Texas-legal ammo may or may not be legal for possession or use in other states, so be sure to check the local laws to stay on the right side of the law while staying safe.

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CTD: What about improving the trigger on my carry gun?

Walker: Most of us carry a Glock, S&W, Ruger, Taurus, Kel-Tec, Colt, Beretta, H&K, Springfield, Sig, Bersa or other flavor of commercially manufactured handgun. One of the things that most of these firearms have in common is that each came from the manufacturer with a trigger pull weight that was decided by someone other than the ultimate user. This trigger pull may be a crisp 4-pound pull, like a walk on a spring morning, or the trigger pull may be an all day long “I need a coffee break” creeping, 12-pound trigger pull. Either way, you may not like it, or it may not fit your personal plan for self-defense. If you have intentionally fired your gun, the trigger pull weight is most likely legally irrelevant. If you fired your gun like you intended, the fact that it operated with a very light trigger pull or a heavy trigger pull will likely be irrelevant to any resulting legal matters.

CTD: What if the gun went off and I did not intend to pull the trigger?

Walker: In a situation of an unintended discharge, the issue of trigger-pull weight has a greater chance of being relevant. Suppose you are confronted by an attacker with a weapon and have drawn your gun on the attacker but you have not fired.  The attacker, upon seeing the barrel of your Glock and your clear verbal warning to STOP, decides that it is not a good day to get shot and immediately surrenders, puts his hands up and gets on the ground. Just as the adrenalin is easing and you are feeling relief that you did not have to shoot this bad hombre, the relief in an instant is broken when you hear a surprise BANG and feel the recoil of your own gun in your hand. You did not mean for the gun to go off, it just did. We have an unintended discharge. That is, you did not mean to shoot.

In the situation involving an unintended discharge, the law will likely impose a negligence or recklessness standard to evaluate the conduct of the person discharging the firearm. In an unintended discharge case, the circumstances surrounding why the gun discharged will be evaluated. This could include the trigger pull weight of your gun. However, in my opinion, the inquiry in most unintentional discharges will likely be decided on a more fundamental issue than trigger pull. Before the issue of trigger pull weight ever comes into play, the first question in the legal analysis would be “why was the person’s finger on the trigger of a gun before he or she intended to discharge the weapon?” It is a fundamental cornerstone to what is considered proper firearms training that you keep your finger off the trigger until you are ready to fire.

Nevertheless, don’t do anything to your firearm that will be considered unreasonable. For example, putting a 1-pound trigger pull on your carry weapon is probably not a good idea for most people. This could lead to accidental shootings, injuring your friends, loved ones, or even yourself.

CTD: Can I legally carry my firearms in a hospital, church, amusement park, or nursing home?

Walker: A CHL holder can legally carry in these places, but must always be vigilant in looking for any proper Texas Penal Code §30.06 notice. A CHL holder cannot carry in these locations or on any other property owned or controlled by a private entity if given proper TPC §30.06 notice. Further, if the hospital is part of an educational institution, such as UTMB or Baylor College of Medicine, then the possession of all firearms including concealed handguns is prohibited by TPC § 46.03(a)(1).

CTD: What about a school?

Walker: It is a violation of the law for a CHL holder, along with everyone else, to take a firearm into a school building or a school activity. A concealed handgun may be carried by a CHL holder in an automobile, and onto the sidewalks, driveways, parking lots, and parking garages of a school. A non-CHL holder may carry a concealed handgun in his or her automobile, while on school parking areas, and driveways. Therefore, anyone lawful to possess a concealed firearm may carry in a motor vehicle while picking up or dropping off a child at school. A person may also leave the gun in a car during a visit to the school. Your right to carry ceases at the “door” of the school, so to speak.

CTD: What about federal crimes for school carry?

Walker: A lot of people aren’t aware of this. It is a federal crime for a person to possess a firearm which has moved through interstate commerce, which is virtually all of them, on the grounds of or within 1000 feet of a public, parochial, or private school. Basically, as surprising as it may seem, under this federal law, the mere possession of a firearm by the occupant of a motor vehicle while driving past a school or dropping off a child, is a federal crime. However, this law is rarely enforced if possession of the firearm is the only issue, and there are several broad exceptions.

CTD: Such as?

Walker: The most important exception to this law is that it does not apply to a person who has a license to carry issued by the state where the school is located. Therefore, a Texas CHL holder does not violate federal law by possessing a firearm within a thousand feet of a Texas school. Further, if the firearm is not loaded, and is in a locked container, such as a glove box or trunk, or a locked firearms rack that is on a motor vehicle, there is no violation of the federal law.

CTD: A lot of houses are within 333 yards of schools. Are such residents breaking the law if they keep guns in their houses?

Walker: No, that is also an exception. If the firearm is possessed on private property which is not part of the school grounds, it is not covered by this law. This means that people living within 1000 feet of a school can lawfully keep firearms in their houses.

CTD: How often is a federal case of possession of a firearm prosecuted?  Are there waves of armed parents being arrested?

Walker: The current version of this law has been in effect since 1997. I am unaware of any prosecutions in which the sole accusation is a person’s mere possession of a firearm in a car while traveling through a “federal gun free school zone.” Any time this law has been used by the U.S. Attorney’s Office, it has been added as a charge against someone who was already accused of committing some other crime in the gun-free school zone, such as a violent crime against another person or drug crime.

CTD: We read about road rage incidents seemingly all the time, and it’s always big news if someone involved in an automobile altercation is a CHL holder. Do guns and cars not mix?

Walker: If you keep a firearm in your automobile, you should not allow yourself the luxury of losing your temper while driving. It is our experience that if you do, you are putting yourself at a significant risk of arrest even if you have done nothing illegal.

Texas law does not allow a person to intentionally display a firearm in a manner calculated to alarm or in a manner that puts another person in fear of death or serious bodily injury. Said another way, a CHL holder can’t intentionally display a handgun to another person in a public place unless he has legal reason to do so. Therefore, brandishing a gun in response to being cut off by another car, being almost hit by another car on the freeway, or in response to provocation from another driver which does not amount to an immediate threat of death or bodily injury is not lawful. In other words, if the other driver is just being a jerk, a bad driver, or both, you cannot use a firearm in response.

Experience has taught us that often all it takes to get arrested, and charged with a crime, is the mere allegation from another driver that they believed someone might have had a firearm during a traffic altercation. There have been numerous occasions where our members have been involved in a traffic incident, from something as minor as both drivers flipping each other off to actual collisions, and the other driver calls 911. This driver then proceeds to make vague allegations and speculation, such as: “He pointed something that looked like a gun!”

As a matter of standard procedure, the police will be dispatched in a case like this. In our experience, if the police pull someone over under these circumstances and the driver does in fact have a legal firearm in their possession after an exchange of “roadway pleasantries,” they will likely be arrested with little or no evidence.

Therefore, our advice to our members who carry a firearm in their car is: always do it legally and don’t let yourself get drawn into any form of a road rage incident no matter how minor. The falsity of these allegations can only be shown after an investigation, lots of grief, and involvement in the criminal justice system. These types of 911 calls can result in an arrest for what amounted to bad manners. Remember, even on the road, you can only brandish a firearm in a situation where the use of force is justified. You can only discharge your firearm if a reasonable person would believe that they were in imminent danger of death or serious bodily injury from another person.

CTD: You have seen a lot of legal problems. Is one area of the law cloudier or more confusing or more dangerous than another?

Walker: Family law should worry a lot of gun owners. Attorney Kimberly D. Levi has spoken at our seminars about The Violence Against Women Act of 1994, which began the federal regulation of firearms and ammunition in the context of divorce and other domestic relations proceedings. This collection of laws makes it illegal for a person to possess firearms (any rifle, shotgun, or handgun) or ammunition when the person is bound by certain domestic relations orders, such as those arising out of divorce or custody cases. Quite often, this results in a person who is involved in divorce having no idea that their rights have been eliminated.

CTD: Eliminated?

Walker: In Texas, there are three types of domestic relations orders that could put a Texas gun owner at risk of losing his or her right to possess firearms or ammunition. These orders are protective orders, temporary restraining orders, and temporary and/or permanent injunctions. You do not have to be found guilty of committing an act of family violence to become the subject of a protective order.

Kimberly has explained that merely placing the other family member in fear that you might commit family violence is enough to have a protective order issued by a court. In many instances, the only evidence of a threat of family violence will be the uncorroborated testimony of the accuser.

What is most important to note is that the Texas Family Code contains a standard temporary restraining order, which is issued by the courts in nearly every divorce case. This temporary restraining order is intended to do nothing more than maintain the status quo while the divorce is proceeding. It prohibits things like diverting the mail, turning off utilities to the home, and destroying or giving away community property. It also prohibits threatening or harassing behavior and committing acts of family violence, even if there has been NO ACCUSATIONS OR EVIDENCE of threats or violence.

It is simply standard and applies to everyone involved in divorce, when one party asks for it. However, be warned, this is enough to cause a person who possesses firearms and/or ammunition to be in violation of federal law. If a person is going through a divorce, he or she should be sure and have their family lawyer ask the court to remove these provisions from the standard boilerplate temporary order.

Are you a member of Texas Law Shield or other similar service? Have you needed their services? Tell about your experience in the comment section.

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The mission of Cheaper Than Dirt!'s blog, "The Shooter's Log," is to provide information-not opinions-to our customers and the shooting community. We want you, our readers, to be able to make informed decisions. The information provided here does not represent the views of Cheaper Than Dirt!

Comments (18)

  • paul

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    If you are going through a divorce and a temporary restraining order is issued, what are you supposed to do with your guns and ammo???

    Reply

  • William Injeian

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    First of all, I want to thank CTD and Mr. Walker for posting such timely and pertinent information relating to the maddeningly complex and arcane gun laws which stifle the law abiding gun owner’s rights to self protection. Having been victimized by New York’s domestic violence law myself, Mr. Walker’s candid evaluation of the anti-gun mentality permeating many state’s prosecutions should serve to reinforce our efforts to roll back the madness that has turned law abiding citizens into criminals and hapless victims of agenda driven zealots and liberal politicians.
    Just over three years ago, the N.Y.P.D. arrested me on the word of ONE uncorroborated complainant, (an ex-girlfriend with provable mental issues). This arrest was made in spite of the police officer’s failure to investigate my accuser’s criminal and psychological history, AND in spite of me being a retired law enforcement officer protesting my innocence. The accusation of the complainant trumped all reason and reasonableness. After hiring competent counsel and demanding trial for over a year, the presiding calendar judge was forced by statute to dismiss all charges against me after the Manhattan District Attorney’s Office failed to timely prosecute. The prosecutor, a young female with an obvious anti-gun and anti-male agenda kept me hanging for over a year in spite of disclosures by my attorney and me which should have impeached my accuser and vindicated me. As one who had been in very dangerous situations throughout my 20 + years of law enforcement service, I was forced to walk though the following fifteen months of legal limbo…..defenseless. Even after having the complaint against me dismissed, it took almost three additional months of legal threats against the NYPD and prosecutor for them to finally release my firearms back to me, and this was on top of getting a New York State Supreme Court Judge to issue an order demanding the NYPD and the Manhattan DA to release my property.
    Thank God I have the means to hire competent counsel and fight back, but what of all those men wrongly accused without such means? More often than not, they are forced to rely on over-worked public defenders or else “cop a plea”.
    I’m but one of THOUSANDS of law abiding MEN who have been victimized by a justice system run by bad actors. At some point, society is going to explode by all of the injustices being perpetrated on the innocent.

    Reply

  • Robert L Hamilton

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    …I am from Massachusetts. Is there a similar organization in this state??? Also, if you have a news letter please sign me up. Thanks, Bob

    Reply

  • Robert Garber

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    I have a bit of advice from personal experience for my fellow Philly gun owner, Antony Schiavo. Be VERY CAREFUL what you say to Philly Finest . They will try every way possible to make you look like a “Straw Purchaser ” Philly cops don’t like Anyone who carries a gun. They feel we are all trying to be the “Punisher ” . WATCH YOUR ASS ON THIS ONE!!

    Reply

  • cj messina

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    I currently have a valid HR-218 retired law enforcement officers’s qualification card. Does the Federal firearms prohibition law for schools apply to us also?

    Reply

  • Bob Howe

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    And I thought I was a free thinking person living in a country were the term “FREEDOM” is used daily and for many different purposes.But in reality I’m not free. I’m only free as long as I do as I am told, when I am told. It doesn’t matter
    that I am civil and I am moral. It only matters that I follow the direction of which I have been told. It’s sad to see how far we all have fallen as a free thinking person and or have given up for the cause of “FREEDOM”. I wonder if our forefathers intended for us all to be enslaved for the purpose of “FREEDOM”. To do what we are told to do, when we are told to do it. Under the banner of the Civil Rule of Law. It no longer matters if it is morally right or wrong. It only matters that we follow it, with out questioning it. Because if you question it, you are branded for the rest of your days. Free thinking people are now a small band of people and “FREEDOM” seems to have faded.

    Ain’t Freedom Grand……………….NOT ANY MORE.

    Reply

  • Chamberlain

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    The stuff about no being to have firearm within X number of feet has bothered me for sometime. In the town of 500 where I live, probably a quarter of the population is clustered around the school. The only way to avoid going too close to the school is to go about 1 mile out of my way, in the opposite direction.

    The school fronts on the main highway that runs through town. There is no way to get in or out of town going one direction without passing through the school zone. This is in a town where nearly everybody seems to own, at least, one firearm and where you don’t need a permit to carry concealed in the county. (We’re unincorporated.)

    The guy who asked about ‘rights’ being denied. This is how it works, we have our 2nd amendment rights, they just regulated them to the point where it is impossible to exercise them without being a criminal. Frequently under guise of “Save the children.”

    Reply

  • Brent R.

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    It’s a violation of the Constitution for anything short of a Constitutional Amendment to violate or suspend your rights laid out in the Bill of Rights without government entities & their trustees following the course of action laid out in said Bill of Rights; specifically referring to the unfounded accusations being enough for local courts to suspend a persons 2ND Amendment right or even suspending said right as a matter of course. I know they do it but it’s unconstitutional & should be fought with every means at the disposal of the citizenry, police & military. The members of the armed forces specifically swear to uphold the Constitution & defend it from all enemies, foreign & domestic & that oath never expires; furthermore when our own government entities violate the Constitution as they have done & are doing they then become defacto domestic enemies of the Constitution.

    Reply

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