is it legal to carry a rifle in the trunk of my car?

[TexasRedneck]

I certainly would, if it happened to me. "Just following orders" has its limits. Any well trained and responsible Officer would be aware of 229.001. My concern would be making an example of the culprits so it would never happen again.

MY concern is with the Masters of the Dog - the dog is just following orders. Now, afore you LEO's get your backs up with my phrase, realize it's to define the issue as I see it. Because if I make the issue with the cop, the city will let him bear the brunt of the issue - and it's the city who should take it, not the cop.

 

[Bithabus]

it's the city who should take it, not the cop.

I agree with you. But if it did happen, I would hedge my bets. Like I said I don't believe any respectable cop would not be aware that this ordinance is in violation of State law.

 

[M. Sage]

The arrest itself would be "lawful" - but the underlying basis would not be - which is what would open the city up for liability.

I have no intention of doing something to "get their attention" - and that's why I intend to proceed carefully, and AFTER consultation with a competent attorney. The basic concept is to drive through downtown, etc., with a rifle in the gun rack, let them pull me over and cite/arrest me without incident. Like I said - my "fight" is with the city - NOT the PD.

The PD needs to pay, too. If they don't know what they're enforcing, they shouldn't be enforcing it.

Would it not be possible to file a suit without having to be arrested under the illegal ordinance first?

Not usually. Generally, you need "standing". We could possibly get a PR campaign going to put pressure on the city council by informing them how much a lawsuit would wind up costing them.

Lawsuits like this, the city will wind up paying the injured party's legal fees and court costs along with any damages. That can run into the millions of dollars without much trouble. I'm saying "will" because I have zero doubt that the suit would be a winner.

I certainly would, if it happened to me. "Just following orders" has its limits. Any well trained and responsible Officer would be aware of 229.001. My concern would be making an example of the culprits so it would never happen again.

Ditto. As with the department, if the individual officer has no idea what he's enforcing, he shouldn't be enforcing it.

 

[TexasRedneck]

Sorry guys....havin' BTDT (many years ago), I can appreciate both the huge numbers of laws a cop is required to enforce, and the fact that he's not supposed to pick and choose which to enforce. If your employer tells you to put 10-weight oil into an engine that should have 30 weight, then you document that he told you that and do it - because ultimately it's their decision. Nothing the LEO is going to do is going to have a long-lasting detrimental effect on me, so I see no need to drag him/her into the legal consequences so long as the encounter is done professionally.

 

[Mexican_Hippie]

"Following orders" requires some judgement on the officer's part. Nazi Officers still hung for "following orders" after Nuremberg. For example...

Ticketing someone for going 70mph in a 50pmh zone and enforcing genocide like in Nazi Germany are not even in the same ballpark. That's why I picked them for this example. Assuming the officer disagrees with both orders, he/she should obviously enforce the speed limit but not the genocide.

The officer has to decide, using his judgement, where he draws the line on what he will enforce. Usually the line is pretty apparent, but not always. Therefore, he is at least partially at fault if he exhibits bad judgment.

This is equally important:
Likewise, if I was bringing a suit against the city I would try to use good judgement. If I felt it was a border-line law I'd let the officer slide. If I felt it was egregious I would name him in the suit too.

 

[Tejano Scott]

Couple of thoughts. As an attorney, I'm not sure why someone couldn't file a declaratory action against the city to determine that their local ordinance is unconstitutional. In other words, I'm not sure anyone would have to be a guineau pig per se(other than being motivated to seek out an attorney and fund the litigation). You can still recover attorneys fees in declaratory judgment action. My other thought is where is the NRA or TSRA on this subject? That's what we pay dues. Has anyone contacted them? Just a thought. I'd try that route first before some of the others mentioned.

 

[Domineaux]

Yeah that's the better route I would think, if it can be done that way.

 

[Tejano Scott]

And I want to add, I'm just assuming you guys are right that its "unconstitutional". It occured to me that municipalities regulate all sorts or activities stricter than the state does(see cigarette smoking in public, etc.). That, in and of itself, doesn't make an ordinance unconstitutional or invalid.

 

[Domineaux]

Preemption clause supposedly covers the following as per http://opencarry.org/tx.html:

Preemption:
Complete state preemption of firearms laws except localities may regulate the carrying of firearms

In public parks
At public meetings of a county, municipality or other governmental body
At a political rally, parade or official political meeting
At a nonfirearm-related school, college or professional athletic event

 

[Domineaux]

Another forum post on the same issue:
TexasCHLforum.com • View topic - Preemption Law

 

[M. Sage]

And I want to add, I'm just assuming you guys are right that its "unconstitutional". It occured to me that municipalities regulate all sorts or activities stricter than the state does(see cigarette smoking in public, etc.). That, in and of itself, doesn't make an ordinance unconstitutional or invalid.

Look higher in the thread, I posted about the preemption law in Texas. No need to rely on untested Constitutionality, this ordinance plainly violates state law.

 

[Bithabus]

And I want to add, I'm just assuming you guys are right that its "unconstitutional". It occured to me that municipalities regulate all sorts or activities stricter than the state does(see cigarette smoking in public, etc.). That, in and of itself, doesn't make an ordinance unconstitutional or invalid.

Not "unconstitutional" per se, but clearly unenforceable. In fact the ordinance should not exist.

LOCAL GOVERNMENT CODE

TITLE 7. REGULATION OF LAND USE, STRUCTURES, BUSINESSES, AND RELATED ACTIVITIES

SUBTITLE A. MUNICIPAL REGULATORY AUTHORITY

CHAPTER 229. MISCELLANEOUS REGULATORY AUTHORITY OF MUNICIPALITIES


Sec. 229.001. FIREARMS; EXPLOSIVES. (a) A municipality may not adopt regulations relating to the transfer, private ownership, keeping, transportation, licensing, or registration of firearms, ammunition, or firearm supplies.
(b) Subsection (a) does not affect the authority a municipality has under another law to:
(1) require residents or public employees to be armed for personal or national defense, law enforcement, or another lawful purpose;
(2) regulate the discharge of firearms within the limits of the municipality;
(3) regulate the use of property, the location of a business, or uses at a business under the municipality's fire code, zoning ordinance, or land-use regulations as long as the code, ordinance, or regulations are not used to circumvent the intent of Subsection (a) or Subdivision (5) of this subsection;
(4) regulate the use of firearms in the case of an insurrection, riot, or natural disaster if the municipality finds the regulations necessary to protect public health and safety;
(5) regulate the storage or transportation of explosives to protect public health and safety, except that 25 pounds or less of black powder for each private residence and 50 pounds or less of black powder for each retail dealer are not subject to regulation; or
(6) regulate the carrying of a firearm by a person other than a person licensed to carry a concealed handgun under Subchapter H, Chapter 411, Government Code, at a:
(A) public park;
(B) public meeting of a municipality, county, or other governmental body;
(C) political rally, parade, or official political meeting; or
(D) nonfirearms-related school, college, or professional athletic event.
(c) The exception provided by Subsection (b)(6) does not apply if the firearm is in or is carried to or from an area designated for use in a lawful hunting, fishing, or other sporting event and the firearm is of the type commonly used in the activity.
(d) The exception provided by Subsection (b)(4) does not authorize the seizure or confiscation of any firearm or ammunition from an individual who is lawfully carrying or possessing the firearm or ammunition.

 

[majormadmax]

Wow, let's

even further!


I think everyone agrees that the city ordinance violates state law, but I think we all realize that it's still on the books and you cannot depend on 229.001 from keeping you from being arrested if caught with a loaded longarm within the city limits of San Antonio.

It's great that a few want to challenge this and I wish them all the best, but in the mean time some of us have to abide to the reality of the situation in that we cannot afford to be the

for such an initiative. An arrest--even an illegal one--would have serious implications on my ability to work, given my clearances and what not.

So it does pretty much lie in the lap of such organizations such as the NRA, TSRA or even better, the fledgeling Lone Star Citizens Defense League! Given the ease in which this could be addressed (the facts are pretty clear cut), it could be an easy win for that organization and one that would boost their reputation within the state. I hope they're not solely focused on open carry when there are more pressing issues they could be addressing like this. Since there are LSCDL members on this board, I am actually quite disappointed that they haven't jumped all over this! While they're at it, they could also get San Antonio to remove those illegal "no guns allowed" signs in the city parks!

The ball's in your court, LSCDL; time to show us what you're really made of!

 

[TexasRedneck]

The ball's in your court, LSCDL; time to show us what you're really made of!

Ummmm.....M2 - step away from them sugar donuts, dude......

NRA, TSRA - yeah, within their perview. LSCDL - not even. LSCDL is chartered to promote OC of handguns - and I'd not want to see them jump into this fray and expend their limited resources on something like this....

 

[Bithabus]

Wow, let's

even further!


I think everyone agrees that the city ordinance violates state law, but I think we all realize that it's still on the books and you cannot depend on 229.001 from keeping you from being arrested if caught with a loaded longarm within the city limits of San Antonio.

It's great that a few want to challenge this and I wish them all the best, but in the mean time some of us have to abide to the reality of the situation in that we cannot afford to be the

for such an initiative. An arrest--even an illegal one--would have serious implications on my ability to work, given my clearances and what not.

So it does pretty much lie in the lap of such organizations such as the NRA, TSRA or even better, the fledgeling Lone Star Citizens Defense League! Given the ease in which this could be addressed (the facts are pretty clear cut), it could be an easy win for that organization and one that would boost their reputation within the state. I hope they're not solely focused on open carry when there are more pressing issues they could be addressing like this. Since there are LSCDL members on this board, I am actually quite disappointed that they haven't jumped all over this! While they're at it, they could also get San Antonio to remove those illegal "no guns allowed" signs in the city parks!

The ball's in your court, LSCDL; time to show us what you're really made of!

They can ban guns in the parks btw. But not guns carried by CHL holders.

 

[majormadmax]

They can ban guns in the parks btw. But not guns carried by CHL holders.

There is no distinction, the park signs clearly state "no guns allowed"...

 

[majormadmax]

Ummmm.....M2 - step away from them sugar donuts, dude......

NRA, TSRA - yeah, within their perview. LSCDL - not even. LSCDL is chartered to promote OC of handguns - and I'd not want to see them jump into this fray and expend their limited resources on something like this....

Sorry, but the LSCDL website clearly states "fights for the constitutional gun rights of all Texans" so I would expect them to pick up this cause!

 

[TexasRedneck]

Sorry, but the LSCDL website clearly states "fights for the constitutional gun rights of all Texans" so I would expect them to pick up this cause!

Look....I "get it" that you don't like LSCDL - but why drag them into this?

And a sign saying "no guns allowed" is not a legal 30.06 posting anyway.

 

[Bithabus]

There is no distinction, the park signs clearly state "no guns allowed"...

I understand, but that is just a sign. Lawful enforcement cannot be against CHL holders.

And a sign saying "no guns allowed" is not a legal 30.06 posting anyway.

Yep. All that sign does is prohibit non CHL people from carrying long guns into the park.

 

[PMG2010]

That ordinance is blatantly in violation of State law. Enforcing it would be costly to the city, and possibly the Officer.

Where in state law does it forbid local or county authorities from passing their own local gun laws? I'm Not debating the accuracy or medit of your comment, I just want to know the reference for my own information.

Thanks.