Eight days ago, students at the Marjory Stoneman Douglas High School in Parkland Florida found themselves the focus of a mass-murderer who ultimately killed seventeen people. Since the shooting, these same kids have been the focus of a media and political campaign to use their horrific experience, their tragedy to promote a political end. So they have been victimized twice; once by a murderer and once by heartless political hacks dancing in their friends’ blood to achieve a political goal.
Some students around the country are taking action and are calling for change, real change, change that will save lives. Sadly, a hand full of these students and parents are using the tragedy to promote gun control that has proven to be useless time and time again.
However, not all of the students protesting and calling for change are falling for the scam promoted by dishonest politicians and anti-freedom groups. They want something done that works, that will actually save lives. They aren’t interested in symbolic gun control legislation that will not save one drop of blood. They demand real solutions and so should we all. This open letter is directed to those students who really care about saving kids’ lives.
Kids, if you really want to make a difference, if you really want to see changes made that will save lives, then I’m on your side. I’ll be your champion in Texas and I will be proud to call you my colleagues. But if all you want to do is pass more gun control laws like those that have proven to be useless at saving lives, then we have nothing to say to one another.
So what can we do together? How can we really make schools safer? We know laws against guns in school have never stopped a mass-murderer from killing students. We know that laws against murder have not stopped the shedding of innocent blood. So why would any rational intelligent person foolishly believe that yet another gun law would be obeyed by someone who is not only willing to commit murder, but actually wants to commit mass-murder? New gun laws will not save lives and don’t listen to lying political hacks that tell you otherwise. Put your youth, your enthusiasm and your energy into making a change that will make schools safer.
There is something we can do and it will work. How do we know it will work? We know it will work because it works is already working in many schools all over Texas and the nation. Every school must have armed protectors to confront and stop evil people who come to kill our kids. These protectors can be any number of people including law enforcement officers, private security guards, teachers and volunteers who have undergone proper training and background checks.
People who try to use you kids as nothing more than stage props in their political scheme will tell you that “more guns in schools are not the answer.” That’s a lie, pure and simple. In fact, guns in school carried and used by good people willing to risk their lives to save yours are the only way to protect students. Some people call for hardening schools, which is helpful, but this is both cost prohibitive for some school districts and it does not deal with a threat that is already in a classroom.
Texas law has long allowed school officials to authorize people to carry firearms in schools. This is true even if the people authorized are not law enforcement or security officers. After the Sandy Hook Elementary School murders, a few Texas schools went public with the information that they allow some or all faculty and staff to carry handguns to protect their kids. In the years since Sandy Hook, more Texas schools are following suit and some even post a sign notifying would-be mass-murders that students will be protected by armed teachers and staff.
You may be asking yourselves why a change in the law is necessary, if schools can allow people to carry guns now. The law must be changed for two primary reasons. First, there is a huge untapped pool of men and women that would be honored to serve as a volunteer and protect our school kids. These folks include military veterans and former peace officers whose training and experience make them a valuable resource. Citizens who hold a Texas License to Carry a Handgun (LTC) number approximately 1.5 million, many of whom would also be honored to serve. The Texas Dept. of Public Safety has created a School Safety Course for people who hold an LTC. With this training, these folks would increase the potential volunteer pool dramatically.
Utilizing this large pool of volunteers requires Texas law that currently applies to volunteer church security personal to apply to school safety volunteers as well. Otherwise, the law will prevent schools from using volunteer security personnel.
The second reason the law must be changed is ensure that schools utilize these life-saving volunteers, in spite of politics and personal bias by school administrators. Some school boards and/or school superintendents will refuse to use qualified volunteers simply because they don’t like guns. We cannot allow students to be put at rick because of an administrator’s personal bias.
I have drafted bill for the 2019 Texas Legislative Session that will accomplish this goal of putting armed protectors in every school in Texas. This plan will work in all states, if state legislatures and the U.S. Congress will pass the necessary laws.
Kids, if you truly want to save lives, then get on board with this program and support my bill in 2019. It’s time to ask yourselves, do you want to make a difference, or merely make noise? If you want to make a difference, then you and I are on the same team and together we will win. If all you want to do is make noise, then walk on by, because your fellow students and I have a lot of work to do between now and 2019.
HB987 by Rep. Rafael Anchia (D, F-) has the full support of violent criminals.
Representative Rafael Anchia’s HB987 (2017) is a Bill that makes any thinking person shake their head in disgust. The Bill is designed to protect the most violent of criminals, at the expense of honest Texans. Why on earth would anyone file such a bill?
HB987 would repeal protections enacted in 2007 with the passage of SB378. SB378 was commonly referred to as “Texas Castle Doctrine Bill,” but that was nothing more than a title that was somewhat inaccurately attached to that much-needed Bill. In the ten years since its passage, SB378 has proven both the wisdom of the Texas Legislature and the effectiveness of the then-new law. In order to fully understand how bad Rep. Anchia’s Bill is, we need to take a trip back in time to have a look at Texas law as it existed over the years. Then we will be able to dissect HB987 with much greater clarity of its impact on law-abiding Texans and how it would help criminals.
When the Texas version of a “Castle Doctrine Bill” (SB378) passed in 2007, it addressed two areas of criminal law and one area of civil law. SB378 got its unofficial name because it dealt with the duty to retreat before using force or deadly force against a criminal. However, the so-called “retreat duty” was only one area of criminal law addressed by SB378. The other area dealt with the elements of self-defense using non-lethal force or deadly force.
If one were to carefully read every word in tens of thousands of pages of Texas criminal and civil laws, one would not see term “Castle Doctrine.” However, one could read any edition of Black’s Law Dictionary and find “Castle Doctrine” defined much like this:
A man’s home is his castle and, hence, he may use all manner of force including deadly force to protect it and its inhabitants from attack.
Black’s Law Dictionary, Fifth Edition, Pg. 197.
The feminists in the audience need not get wrapped around the axel over that definition; it applies equally to men and women alike.
There is another legal doctrine that comes into play and it is called the “True Man Doctrine.” I know, two male-chauvinist definitions in a row, but hey, those are long-recognized Doctrines that are relevant to this discussion. So feminists just pour another glass of wine and read or listen on. The “True Man Doctrine” extends the concept of the “Castle Doctrine” outside one’s home allowing an intended victim to defend themselves wherever they may be unlawfully attacked, without the need to first retreat.
Prior to about 1975, Texas was a “True Man State” meaning one could defend themselves whenever and wherever they were unlawfully attacked. They had no duty to retreat or attempt to retreat prior to using force or deadly force, so long as the legal elements of self-defense were present. (See Tex. Penal Code§9.31 & §9.32.) In either 1975 or 1977, Texas law changed and for the first time in Texas history, people had a duty to retreat before using force or deadly force, even if all of the elements of self-defense were present. Unbelievably, this duty applied even inside one’s home!
In 1995, the Texas Legislature passed HB94 by Rep. Kamel. This Bill repealed the retreat duty, but only if a person was lawfully using force or deadly force to defend himself or herself inside their own home. The duty to retreat remained everywhere else, whether one were 500 miles from home, or standing on their front porch. Therefore, Texas was technically a “Castle Doctrine” state from Sept. 1, 1995 until Sept. 1, 2007 when SB378 went into effect. This is why I say that SB378 was somewhat inaccurately called a “Castle Doctrine” bill. Yes, it dealt with the retreat duty, but only outside of one’s home.
The other area of Texas criminal law addressed by the Texas version of a “Castle Doctrine” bill dealt with the statutorily-required elements of self-defense, whether using non-lethal force or deadly force. In order to be justified in using force against another person, one must 1) have a reasonable belief; 2) that force (or deadly force) is immediately necessary; 3) to defend against another person’s use or attempted use of unlawful force (or deadly force). A person claiming self-defense must also meet the “when and to the degree” element of both Tex. Penal Code§9.31 and §9.32. There are other significant factors related to self-defense that may come into play, but a full discussion of this topic is not necessary for purposes of evaluating the impact of SB378. (It would also be far beyond the scope of this article!)
Although not common, an additional problem some Texans faced when forced to defend themselves was frivolous lawsuits filed by criminals against whom force was used, or their surviving family members. Such suits were often politically-motivated and relatively rare, but statistics are irrelevant when an intended victim of a violent attack survived the attack only to find themselves paying an attorney to defend against a frivolous lawsuit.
The word “reasonable” is hardly a shining example of clarity, nor are the words “immediately” or “degree.” Yet those words make up the legal foundation of lawful self-defense. As noted earlier, a full discussion of the Texas law on self-defense is neither necessary nor possible in this article, but it would be helpful to read Tex. Penal Code§9.31 as it existed prior to the passage of SB378 in 2007. It read, in pertinent part, as follows; “Except as provided in Subsection (b), a person is justified in using force against another when and to the degree the actor reasonably believes the force is immediately necessary to protect the actor against the other's use or attempted use of unlawful force.” All Tex. Penal Code§9.32 does is add the word “deadly” in front of “force.” Essentially, in order to use deadly force, one must be in imminent danger of death or serious bodily injury.
Although the Texas Penal Code applies to all people in the State, it was applied quite differently in some counties and courtrooms. What a prosecutor, grand jury, or jury considered “reasonable” and/or “immediately necessary” in one county was often considered unreasonable or not immediately necessary in another. In theory, Texas law was the same for everyone, but its application was not.
SB378 was passed to provide equal justice for everyone and to prevent an honest person who acted in self-defense from surviving the deadly attack only be fall victim to the legal system. The protections of SB378 are narrowly crafted and contain safeguards to prevent abuse. The details of SB378 will be discussed below, but in summary SB378 1) repealed the retreat duty everywhere in Texas under specific circumstances; 2) created a presumption of “reasonable belief, if immediate necessity” in specific situations; and 3) granted immunity from civil liability when force was justified pursuant to Chapter 9 of the Texas Penal Code.
When one talks with people who have been forced to defend themselves against a violent attacker, the common thread in these discussions is the element of suddenness. The intended victim rarely has time to reflect on their circumstances and to contemplate a response. People often refer to the attack and their response as a blur, an instinctive reaction to the deadly threat. The vast majority of self-defense shooting, whether in the law enforcement community or among citizens, follow what is known as the “Rule of 3’s.” Three rounds are fired in three seconds from a distance three feet. Obviously, there are self-defense shooting that do not contain one or more of these three elements, but the element of suddenness is almost always present.
The old adage of “walking a mile in someone’s shoes” is never more appropriate then when trying to evaluate the actions of a person acting in self-defense, or when defending another innocent person. Try as one might, it is simply impossible to put oneself in the mindset of an intended victim who had only seconds, or perhaps a split second, to make a life or death decision. It is impossible and grossly unfair for anyone to spend days, weeks or even months “evaluating” the actions of someone forced to defend themselves by making a split-second decision.
To prevent the unequal application of Texas self-defense laws, and to prevent the second-guessing of such critical life or death decisions one must make under the worst imaginable circumstances, SB378 created a rebuttable legal presumption. There are safeguard built into the law to prevent its abuse.
The presumption applies to both non-lethal force and deadly force under Tex. Penal Code§9.31 and §9.32. The presumption applies only in one’s home, business or car, or when a person acts to prevent specific violent crimes. The presumption applies only when the following elements are present:
As can be seen, the presumption applies only to a narrowly defined geographic area, i.e. one’s home, business or car, or when trying to prevent specific violent crimes. So, self-defense outside one’s home, business or car does not trigger the presumption of reasonableness.
As noted, prior to 2007, Texas law did not require people to retreat before using force or deadly force inside their home. SB378 removed the retreat duty outside one’s home, so long as certain legal requirements are met. The Bill did not go so far as to return Texas to a “True Man State.”
If the elements necessary to use force or deadly force we have already covered are present, then a person can use force without retreating or trying to retreat so long as the person:
The one element of Texas civil law that was addressed in the Texas version of the Castle Doctrine Bill dealt with potential civil liability to a criminal or their surviving family members. If someone uses force or deadly force that is justified under Chp. 9, Tex. Penal Code, then they are immune from civil liability. Contrary to what many folks initially believed, this does not mean that they cannot be sued. It simply means they should win. Any attempt to prevent the filing of suit would violate the open courts provision of the Texas Constitution and the law would be struck down.
Rep. Anchia’s HB987 repeals every element of SB378 that has protected Texans for almost a decade. Why would any member of the Texas Legislature file such a despicable bill? Who is he trying to protect? It certainly isn’t a criminal’s intended victim! Now for a few examples of the application of HB987.
If a woman is attacked even in her home and she defends herself by using force or deadly force, she will once again be subject to Monday morning quarterbacking by people who cannot possibly put themselves in her shoes. Yes, the duty to retreat would not apply in her home, but the presumption of reasonableness would not exist. The act of breaking into her home, without more, would not justify the woman’s use of force to defend herself, if Rep. Anchia has his way.
Let’s look at another example of the absurdity of Rep. Anchia’s goal. A 21 year old college student is heading home after an evening class. At a red light, a would-be rapist and murderer jerks her door open and starts dragging her from her car. If Rep. Anchia’s Bill passes, this would not be enough for the woman to use force in self-defense. She would have to show “more” but how much “more” would be enough to satisfy those who would spend the next weeks or months evaluating her split-second decision? Why would any decent person put this woman in such a horrendous position? The only answer is that Rep. Anchia cares more about criminals than their intended victims. This is shocking, utterly shocking. Undoubtedly he will claim otherwise, but his protestations will fall on deaf ears and the beneficiaries of HB987 are undeniable.
The damage caused by HB987 is not limited to repeal of the much-needed presumption of reasonableness. It would also reinstate the retreat duty outside one’s home. Here is another real-world example of the application of HB987. A man is walking his dog in the evening when he is attacked by a knife-wielding robber. Few if any people would argue that the elements of self-defense are not present. Even though the intended victim would have a “reasonable belief of immediate necessity,” that pesky retreat duty Rep. Anchia wants to resurrect could take a reasonable act of self-defense and turn it into a prison sentence for the victim. If people evaluating the man’s actions were to feel that he could have and should have simply run away, then he could be convicted of a felony for defending himself. Again, one must ask why on earth Rep. Anchia would return to the days when such a result could be possible?
Here is one last example of the world we could live in again, if HB987 were to pass. Convenience stores have always been prime targets for hijackers. In decades past, the robber would typically take the money and leave without hurting anyone. In recent years however, the preferred procedure for these sociopaths seems to be include killing the clerk to eliminate a witness, or simply to satisfy their lust for blood.
With this background, here is our scenario under Rep. Anchia’s vision of the future. A person with a License to Carry a Handgun (LTC) is in the back of a convenience store looking for a snack for his road trip. Suddenly, a hijacker bursts into the store and shoves a gun into the face of the female clerk demanding money and threatening to kill her. Under current Texas law, if the LTC chooses to intervene and protect the clerk, the presumption of “reasonable belief of immediate necessity” applies to his actions because he would be preventing the commission of aggravated robbery and perhaps even murder.
It would be a markedly different legal situation facing the LTC if Rep. Anchia’s HB987 were to pass. The presumption would no longer exist and the LTC would have an incentive, perhaps a strong incentive, “not to get involved.” Yes, Tex. Penal Code§9.33, allows one to come to the aid of a third person under certain circumstances. However, one of the required elements is that the “rescuer” not only reasonably believe that deadly force is immediately necessary, Tex. Penal Code§9.33(2) requires that he also believe that he must be the one to use force to defend that third person. The clerk’s family could well be deprived of a husband and father, wife and mother, son or daughter because their potential rescuer had second thoughts.
Rep. Anchia’s HB987 must not pass. Indeed, it doesn’t even deserve a hearing in committee. If HB987 appears to gain any traction, which is unlikely, then everyone should contact their Representative and ask them to oppose this terrible Bill.
By Charles L. Cotton
Occasionally it is necessary to pass a bill not to change the law, but to clarify it so that it is not abused. This is the case with Sen. Creighton’s (R, A+) SB349 dealing with possession of certain weapons, including firearms, on school “activity grounds.” The Penal Code sections discussed below apply not only to primary and secondary schools (K through 12th grade), but to colleges and universities as well. However, the college and university prohibitions do not apply to people who hold a license to carry a handgun. Licensees are subject to the so-called campus-carry law set out in Tex. Penal Code §46.035(a-1), (a-2) & (a-3), but those sections are not relevant to SB349 or this article.
Tex. Penal Code §46.03(a)(1) makes it unlawful to carry a firearm, illegal knife, club, or prohibited weapons that are listed in Section 46.05(a) on the premises of a school, school transportation vehicles or on activity grounds when a school-sponsored activity is ongoing. “Premise” is statutorily-defined in Tex. Penal Code 46.035 (f) to be a “building or portion of a building,” so the school grounds are not off-limits for firearms, except when a school-sponsored activity is ongoing. However, pursuant to Tex. Penal Code §46.03(a)(1)(A), all schools have the authority to allow anyone to carry firearms on their campus, including in the buildings and on activity grounds when school-sponsored activities are ongoing. In short, schools have the authority to exempt anyone they wish from the prohibitions set out in Tex. Penal Code §46.03(a)(1).
In terms of school activity grounds, this Code Section has always been understood to apply only to school grounds that are located on the school’s property. Playgrounds, football, baseball and soccer fields, and athletic tracks are examples of the activity grounds at issue. Unfortunately, intellectually dishonest people have recently claimed that the scope of “activity grounds” is not limited to school property. They claim that any location in the State of Texas is an “activity ground” subject to Tex. Penal Code §46.03(a)(1), if students are present for a school-sponsored activity.
This interpretation not only ignores the express language of the Code, it would lead to absurd results. For example, if a person were having lunch at a McDonald’s and a high school bus with the school band stopped for lunch at the same location, everyone with a Texas License to Carry a Handgun (LTC) who is legally carrying a handgun would have to get up and leave the restaurant. If one were to be staying in a hotel and a school debate team checked in, LTC guests carrying self-defense handguns would not be able to eat in the hotel’s restaurant when students are present. Indeed, this strained interpretation could lead to arrest and prosecution merely for walking through the hotel lobby when a student is present. If an LTC were in a gas station refueling their car, they would have to leave or face arrest if a school bus carrying students stopped for fuel at the same location. There is virtually no end to the examples of absurd results that such an unreasonable interpretation of the phrase “school activity grounds” could bring about. SB349 clarifies existing laws to protect law-abiding Texans and to preserve legislative intent.
To understand that SB349 clarifies current Texas law rather than changing it, one need only to look at the express language in the Code. First, the entirety of Tex. Penal Code §46.03(a)(1) deals with schools, not locations off school property as are set out in Tex. Penal Code §46.03(a)(2) – (6). Further, the carrying of firearms and other weapons at off-campus school activities such as high school and collegiate sporting events and interscholastic events are prohibited by another Code Section, i.e. Tex. Penal Code §46.035(b)(2). If the overly-broad definition of “school activity grounds” were correct, then §46.035(b)(2) would be both unnecessary and redundant.
There is further proof in the Penal Code that “school activity grounds” must be located on school property in order to come within the scope of Tex. Penal Code §46.03(a)(1). This proof is found in the statutory language that grants authority to schools to allow the possession of firearms anywhere on the school campus, including activity grounds on which school-sponsored events are ongoing. (SeeTex. Penal Code §46.03(a)(1)(A).) A school would not have authority to allow people to carry firearms on property it does not own and control. For example, if a person were to allow their home and swimming pool to be used by a school baseball team for an after-season party, the school certainly would not have the legal authority to let people carry firearms into the host’s private residence. The same would be true for any private property made available by the owner for an off-campus school event.
A recent Texas Attorney General opinion (KP-0047) addressed this control and authority issue, though dealing with courts and court offices rather than schools. Tex. Penal Code §46.03(a)(3) prohibits the carrying of certain weapons “on the premises of any government court or offices utilized by the court, unless pursuant to written regulations or written authorization of the court.” As with schools, courts have the authority to allow firearms and other weapons to be carried in a location that is otherwise off-limits. This authority is granted to courts using the identical language used to authorize schools to allow weapons on activity grounds during school-sponsored events.
In 2015, SB273 passed creating Tex. Gov’t Code §411.209 that established civil fines for governmental entities and agencies that post unenforceable Tex. Penal Code §30.06 signs. On July 14th of that year, a request for an attorney general opinion was submitted asking if the prohibition on carrying handguns applied to an entire building housing courts and court offices. The Attorney General responded in the negative noting that only the areas within a building that are under the court’s control would be off-limits for handguns. The Attorney General’s opinion was based on the same authorization language found in both Tex. Penal Code §46.03(a)(1) and (3) dealing with a school’s authority, ie. “unless pursuant to written regulations or written authorization.” The AG noted that courts cannot authorize the possession of handguns outside the area of a building that they can control. The operative language in KP-0047 reads as follows:
Further,whenconsideringthestatuteasawhole,under subsection46.03(a)(3)acourtmay issue written regulations or provide authorization concerning the allowance of firearms on its premises.SeeTEX.PENALCODE§46.03(a)(3)(establishinganoffenseforcarryingaprohibited weapon"onthepremisesofanygovernmentcourtorofficesutilizedbythecourt,unlesspursuant to written regulations or authorization of the court"). A court's authority with regard to such regulations orauthorization wouldnotincludeareasofthebuildingthatarebeyondtheoperations of the court. This is some indication that the Legislature intended the prohibition in subsection 46.03(a)(3) to have a limitedreach.
KP-0047, Pg. 4 (emphasis added)
The authority of a school to allow possession of firearms in otherwise prohibited areas and the authority of a court to do likewise, is based upon the identical language. The limitation of that authority is the same for a school as for a court and the analysis used in KP-0047 is on point.
SB349 clarifies current law by adding the phrase “owned by and under the control of a school or postsecondary educational institution.” In this manner, no law-abiding Texans will be at risk of arrest and prosecution for an act that is not unlawful.
SB349 addresses another area of concern. Tex. Penal Code §46.03(a)(1) uses the undefined term “educational institution” which is also being misapplied in contravention of clear legislative intent. Those who claim a school activity ground can include property not owned and under the control of a school contend that the term “educational institution” is any location where someone can learn something. Nowhere in the Education Code or elsewhere in Texas law can this strained concept be substantiated. The Legislature clearly used the term “educational institution” to mean colleges and universities. Otherwise, carrying firearms on those campuses would not have been prohibited by Tex. Penal Code §46.03(a)(1).
SB349 clarifies legislative intent and prevents this misuse of the Code by replacing “educational institution” with “postsecondary educational institution,” then defining “postsecondary educational institution” to include public and private colleges. This is accomplished by using the statutorily-defined terms “institution of higher education” for public colleges and universities and “private or independent institution of higher education” for private colleges. (SeeTex. Ed. Code §61.003 §§(8) & (15).)
By filing SB349, Sen. Creighton has done an excellent job of preserving the intent of the Legislature regarding areas of schools that are prohibited for the possession of firearms. His Bill also prevents unsuspecting law-abiding Texans from falling into a legal trap that could lead to their arrest, prosecution and the expenditure of thousands of dollars defending against bogus criminal charges. Well done Sen. Creighton, well done indeed!
Democrat State Senator Royce West has filed a bill that can only be described as both unnecessary and a trap for law-abiding Texans. SB206 would create new offenses for conduct that is already unlawful under Texas law, but in so doing, it sets a trap by deferring to ambiguous and ever-changing federal case law. In order to fully understand just how bad SB206 is, one must consider it in light of current Texas and federal law, as well as a shocking 2014 U.S. Supreme Court case dealing with firearms.
Federal law sets out specific requirements for the sale and purchase of firearms from federally-licensed dealers (“FFLs”). Some of these requirements are clear, but some are ambiguous as will be seen in the analysis of a recent U.S. Supreme Court case. Federal law also identifies certain persons to whom it is unlawful for non-FFLs to provide firearms regardless of the manner of transfer (sale, loan, give, etc.) Prohibited persons are set out in 18 U.S.C. 922(g), (n) & (x).
An individual who is not an FFL making a lawful transfer of a firearm to another person is not required by federal law to create or maintain any documentation of the transfer. A minority of states do require documentation, while Texas joins the majority of states that do not.
When obtaining a firearm from an FFL, the purchaser must fill out a BATFEForm 4473. This form asks several questions to determine whether or not the FFL can legally transfer the firearm to that person. One of the questions asks whether the person obtaining the firearm(s) is the actual buyer or transferee. However, the question also contains an explanation or warning that is not based upon federal prohibitions. The question is 11(a) and reads as follows:
“Are you the actual transferee/buyer of the firearm(s) listed on this form? Warning: You are not the actual buyer if you are acquiring the firearm(s) on behalf of another person. If you are not the actual buyer, the dealer cannot transfer the firearm(s) to you. (See Instructions for Question 11a.)
Form 4473 (emphasis in the original).
The Form 4473 instructions for Question 11a. contains a statement that “You are also the actual buyer/transferee if you are legitimately purchasing the firearm(s) as a gift for a third party.” While federal law prohibits transferring a firearm to a prohibited person (See18 U.S.C. 922(g), (n) or (x)), no federal law prohibits the transfer of a firearm to a someone who is not a prohibited person. The erroneous BATFE instruction resulted in differing opinions among the federal appellate court circuits, until the U.S. Supreme Court issued the shocking decision in Abramski v. United States, 134 S. Ct. 2259 (2014).
Until the Supreme Court’s Abramski decision, the term “straw purchase” was widely held to apply when a person purchased a firearm from an FFL in order to provide it to another person who was prohibited from possessing firearms. This offense was essentially a conspiracy to violate 18 U.S.C. 922(g), (n) or (x)), but the federal charge is falsifying the Form 4473. Abramski changed everything and the decision is worrisome for a number of reasons, not the least of which is the unfounded scope of the term “straw purchase.”
Bruce Abramski is a former police officer in Virginia who was convicted of making a false statement on the BATFE Form 4473. The conviction was based upon his answer of “yes” to Question 11a on Form 4473. His conviction was upheld by the U.S. 4th Circuit Court of Appeals. The U.S. Supreme Court accepted the case to resolve a conflict among the federal circuit courts of appeal. The Supreme Court affirmed the conviction on a five to four vote, with Justice Scalia issuing a scathing dissent that was joined by Chief Justice Roberts and Justices Thomas and Alito.
Mr. Abramski’s uncle wanted to purchase a Glock 19 handgun. Mr. Abramski offered to make the purchase for him because he could get a discount from a firearms dealer in Virginia. The Uncle sent a check to Mr. Abramski for $400 and the handgun was purchased. Part of the process required Mr. Abramski to fill out BATFE Form 4473. He answered “yes” to Question 11a. The gun was then sent to an FFL in Pennsylvania, the Uncle’s state of residence, where the Uncle filled out a Form 4473 and took possession of the handgun.
Mr. Abramski was erroneously identified as a suspect in a bank robbery and officers searched his home pursuant to a search warrant. A receipt for the purchase of the Glock 19 was found. There was no evidence he had robbed a bank, so those charges were dropped. However, based upon the receipt for the handgun, he was charged with and convicted of falsifying the Form 4473. His conviction was upheld by the 4th Circuit Court of Appeals and by the U.S. Supreme Court.
The Supreme Court upheld Mr. Abranski’s conviction in a clear result-oriented opinion. It ignored the federal Gun Control Act of 1968, as well as requirements for a federal agency (the BATFE) to promulgate a rule. (The rule upon which Question 11a is based was not legally adopted because it was not made available for public and congressional comment prior to adoption.) The Court ignored the long history of applying the “straw purchase” doctrine only in cases were the ultimate recipient of a firearm was a prohibited person. It held that a “straw purchase” occurred anytime the ultimate recipient of the firearm was someone other than the person standing in the presence of the FFL.
A major part of the Court’s decision was based upon a claim that the Form 4473 is valuable in investigating crimes, presumably by “tracing” the firearm to the purchaser identified on the 4473. However, this theory fails for at least two reasons. First, there is no federal requirement for recordkeeping if the original purchaser from an FFL later sells or otherwise transfers the firearm to someone else. Secondly, the Form 4473 Instructions for Question 11a expressly state that it is lawful for a someone to answer “yes” to Question 11a, if they are buying the firearm as a gift for a third person who is not a prohibited person. Therefore, it appears that it could be argued that the Abramski decision renders the BATFE’s position on gifting a firearm incorrect. The very instructions issued by the BATFE could result in an innocent person being convicted of a federal felony simply because they trusted and relied upon the BATFE.
With this background, we will now discuss Texas law concerning firearm purchases and prohibited persons. It is clear that Sen. West’s SB206 combined with the Abramski decision sets a trap for honest law-abiding Texans.
Texas law identifies people who are prohibited from possessing handguns or firearms in general, but there are no laws dealing with the act of purchasing firearms. The Legislature has long held that there is no reason to duplicate federal law and it is preferable to focus on the people who are prohibited from possessing firearms. In light of the Abramski decision, there is even more reason for Texas not to change current law.
Since the focus of Sen. West’s SB206 is on obtaining a firearm in order to provide it to another person, we will focus only on current Texas law on this issue. Tex. Penal Code§46.06 is captioned “Unlawful Transfer of Certain Weapons” and it identifies certain persons to whom a handgun, or sometimes firearms in general, cannot be provided. These persons include people who:
It is clear that current Texas and federal law already prohibit the possession of firearms by persons who are legally prohibited from doing so. It is equally clear that Texas and federal law make it unlawful for a person to provide firearms to prohibited persons. As set out below, passing SB206 is not only unnecessary, it would set a trap for unsuspecting Texans.
SB206 would create an offense if one purchased or attempted to purchase a firearm with intent to deliver it to a prohibited person. This duplicates federal law and is unnecessary, but the problem gets worse. SB206 would also adopt federal law that the Abramski decision renders dangerously vague and ambiguous. The language at issue would create an offense for violating federal law and reads as follows:
(3) knowingly makes a materially false or misleading statement in providing information to a person for purposes of complying with the national instant criminal background check system in the manner required by 18 U.S.C. Section 922.
In the event the BATFE or any federal court takes the Abramski decision at face value, then it would be unlawful to purchase a firearm as a gift to a family member, friend, business partner or any other non-prohibited person. (This is based upon the Abramski Court’s holding that the person dealing with the FFL must be the person who will ultimately possess the firearm.) So an honest Texan following the express instructions on the BATFE Form 4473 for Question 11a could buy a firearm as a gift, only find himself or herself unwittingly committing not only a federal felony, but a state felony as well.
It is likely that Sen. West and other anti-gun people and organizations will claim that SB206 is needed in order to prosecute a person who purchases or tries to purchase a firearm, even before firearm is provided to a prohibited person. While it could be argued that, in this regard, SB206 would require a significant level of clairvoyance, it must be noted that conspiracy to violate Texas law is already a crime. SB206 is not necessary to investigate and prosecute criminal conspiracies.
Current Texas law already makes it unlawful to provide a firearm to a prohibited person or to conspire to do so. Therefore, SB206 is unnecessary. SB206 would also create a legal quagmire that has the potential to trap law-abiding Texans who find themselves relying upon BATFE instructions, only to be prosecuted under Texas law when the U.S. Attorney refuses to be a willing party to the atrocity of an Abramski-type prosecution.
SB206 does not even warrant a committee hearing.