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Re: Calculated to alarm
Posted: Wed Jan 29, 2014 3:54 pm
by b322da
A-R,
Do I read correctly that it is your opinion that the display of a firearm could be "calculated to alarm" if its display is done unintentionally or unknowingly?
Perhaps we are getting rather deep here and inventing undue complications. I have already expressed my honest opinion here that the readers and commentators probably all know just exactly what the statute means, but some will not admit it, and grasp at straws to make it unnecessarily complicated. I would think that the readers might be better served by simplifying the understanding of a criminal statute rather than by making it more difficult to understand.
Once again I will avoid getting into a 2d Amendment debate, but, if I step back a post or two or three before yours, A-R, I must suggest that to take the position that the 2d permits a person to display a firearm in a manner calculated to alarm a person or persons, that is, so as to cause her or them to fear for her or their safety, or that of innocent bystanders, might be well-calculated to provide ammunition to those, including certain Texas legislators, opposing the open carry of firearms altogether. Reserving my own position on the question, don't those favoring open carry have enough problems already without being assisted by members of this forum, of all places?
Jim
Re: Calculated to alarm
Posted: Wed Jan 29, 2014 4:53 pm
by cb1000rider
Jim, you've presented a good post and it's valid.
The issue with that statute is that we have no protection from arrest. It's pretty easy for a LEO to say "you knew better" as a basis. Take most juries and I'd wager that the sight of any firearm in our current climate is enough to cause alarm. The "calculated" part is a bit tricky, but that's on the prosecution side. I wouldn't want to be sitting in front of a jury on it. And getting it in front of a judge (via an arrest) is punitive enough.
I won't argue for a second that taking a locked and loaded AR into *any* public space is a good idea. However, based on a few of the suburban LEO encounters (Texas) that I've seen on the internet, the mere act of having a long gun - any long gun - where it isn't readily expected is going to get you in trouble in many cases. I'd wager that marching a 30.06 on a sling with the bolt removed and the rifle unloaded gets you in a heap of trouble in many parts of this state.
It bothers me that we are legally allowed to possess long guns in public, but because today's climate doesn't accept firearms, we're all subject to arrest and significant expense. And to take a side on it - you're either a "crazy" open carry person (agitator) or you're an evil gun control liberal if you suggest bringing our laws in line with society's expectations.
Note, there are states that explicitly protect people from arrest on "alarm" issues like this, but Texas isn't one of them. \
Re: Calculated to alarm
Posted: Wed Jan 29, 2014 4:55 pm
by Beiruty
As a defense lawyer,
I would ask the arresting officer:
1) In your best judgement, what does "in manner calculated to alarm" mean to you?
2) what does NOT "in a manner calculated to alarm" mean to you?
3) When you carry your long rifle/shotgun do you carry it in a "manner calculated to alarm"?, if not, describe how do you carry it.
Re: Calculated to alarm
Posted: Wed Jan 29, 2014 5:26 pm
by cb1000rider
Beiruty,
Those are all very valid questions.. and good ones.
The problem, for me, is that you get arrested at all...
If we don't like the fact that people can 30.06 or AR-15s through a public area, we should outlaw it. The inverse is protecting those people from arrest, if we are a country that really has a 2nd amendment.
I don't like leaving it up to LEOs, not because they're bad, but because they will solve the problem at hand and move on to more important things.
For most people who aren't inclined to do such things, it's a non-issue. That includes myself... I can tell you that the climate of today make me think twice when I unload a cased rifle out of a vehicle in a public place.
Re: Calculated to alarm
Posted: Wed Jan 29, 2014 6:24 pm
by 03Lightningrocks
Not that it means much, but to me, "calculated to alarm" would mean that a person was trying to get a rise out of people. This would include amongst other things, carrying the rifle for the purpose of protest. We can play word games all we want but we all know the intent of this thread is to address the issue of OC proponents carrying their long arms into places as a form of protest. It isn't very hard to prove a persons intentions when they have posted them all over the internet. Most of these folks know darned good and well they are going to alarm people when they demonstrate in this manner. They brag about it on their web sites and FB pages. They even have discussions where they acknowledge some people are scared at the very sight of a gun. They hurl this kind of stuff around as if they think they are insulting these people but it seems to me, they are admitting to carrying in a manner calculated to alarm. Key word here is "intentions".
Re: Calculated to alarm
Posted: Wed Jan 29, 2014 8:06 pm
by A-R
b322da wrote:A-R,
Do I read correctly that it is your opinion that the display of a firearm could be "calculated to alarm" if its display is done unintentionally or unknowingly?
No, not at all. IMHO, BOTH sets of culpability (intentionally or knowingly display AND in a manner calculated to alarm) must be met to commit the offense.
b322da wrote:Perhaps we are getting rather deep here and inventing undue complications. I have already expressed my honest opinion here that the readers and commentators probably all know just exactly what the statute means, but some will not admit it, and grasp at straws to make it unnecessarily complicated. I would think that the readers might be better served by simplifying the understanding of a criminal statute rather than by making it more difficult to understand.
As LightningRocks suggests in a later post, in a way I am just "playing word games" trying to decipher the differences in meaning between "calculated to" and "intended to". BUT, this type of hair splitting over word meaning has been used by countless lawyers and judges ("It depends on what your definition of 'is' is."
), so it has some value beyond merely a parlor game (though none of us who are not lawyers/judges will be able to make anything resembling a worthy conclusion).
b322da wrote:Once again I will avoid getting into a 2d Amendment debate, but, if I step back a post or two or three before yours, A-R, I must suggest that to take the position that the 2d permits a person to display a firearm in a manner calculated to alarm a person or persons, that is, so as to cause her or them to fear for her or their safety, or that of innocent bystanders, might be well-calculated to provide ammunition to those, including certain Texas legislators, opposing the open carry of firearms altogether. Reserving my own position on the question, don't those favoring open carry have enough problems already without being assisted by members of this forum, of all places?
Jim
You and LightningRocks both make similar valid points that these open carry "agitators" (for lack of a better term) likely know (there's that culpable mental state again
) exactly what they're doing. Not sure if it was here or elsewhere I've read some of them claim they're actions are calculated to "educate" not "alarm" ... talk about splitting hairs
Only two caveats:
1- it seems to me that prosecutor will have to PROVE they knew what they were doing
2- this still leaves the grey area that cb1000rider has discussed ... what if the intent or "calculation" to cause alarm is not as obvious? What if you're merely carrying your rifle from your car to a gun store located inside the mall (as one of those arrested claims to have been doing?)
Imprecise wording of laws leads to inconsistent enforcement and prosecution.
Anyway, good discussion ...
Re: Calculated to alarm
Posted: Wed Jan 29, 2014 8:12 pm
by A-R
Another thought from a different perspective. Let's say the open carry agitators preferred interpretation is correct and what they are doing does not rise to the level of "calculated to alarm"?
What then is an LEO to do when the continue receiving MWAG 911 calls?
I realize the hardcore 2A civil libertarians will strongly disagree with this approach, but why not treat these calls like a trespassing call? Issue the open carrier an official "warning" that their actions ARE causing alarm and if they continue or repeat such actions knowing this information then the LEO will have no choice but to conclude that they are doing so in a "calculated" manner and arrest them for 42.01(a)(8).
Re: Calculated to alarm
Posted: Wed Jan 29, 2014 8:37 pm
by K.Mooneyham
cb1000rider wrote:Beiruty,
Those are all very valid questions.. and good ones.
The problem, for me, is that you get arrested at all...
If we don't like the fact that people can 30.06 or AR-15s through a public area, we should outlaw it. The inverse is protecting those people from arrest, if we are a country that really has a 2nd amendment.
I don't like leaving it up to LEOs, not because they're bad, but because they will solve the problem at hand and move on to more important things.
For most people who aren't inclined to do such things, it's a non-issue. That includes myself... I can tell you that the climate of today make me think twice when I unload a cased rifle out of a vehicle in a public place.
I, too, liked Beiruty's questions very much. And I also like your viewpoint that the arresting officer may not be particularly "anti" but simply utilitarian in arresting someone for the otherwise legal open carry of a long-gun. The sad part is boiling the whole thing down to "you might beat the rap but you won't beat the ride".
What worries me is that someone might move here from, for example, NYC or Chicago, where it has been beaten into them that only criminals and police have guns, and thus even the barest glimpse of a firearm will generate "alarm" from someone of that sort. Is that really how we want our state to be? And before I get beat up as being pro-"carry an AR into Starbucks", I assure you I am not. But should I get arrested for carrying a Mosin Nagant (hard to find a case for such a long rifle) from my truck to my house if I have to park on the curb, and a neighbor is "alarmed" by the sight of the rifle? There has GOT to be more to "calculated to alarm" than just someone getting upset.
Re: Calculated to alarm
Posted: Wed Jan 29, 2014 9:10 pm
by G.A. Heath
Intended to calculate alarm conversation:
<OC Advocate> We will be carrying long guns in order to educate the public that it is legal.
<Officer> How do you intend to do that?
<OC Advocate> When they call 911 your dispatcher will explain it to them.
<Officer> You mean to cause them to call 911?
<OC Advocate> How else can they learn?
<Officer> We will have your reservation ready.
Not Intended to calculate alarm conversation:
<OC Advocate> We will be carrying long guns in order to educate the public that it is legal.
<Officer> How do you intend to do that?
<OC Advocate> Our rifles will be carried on our backs, muzzle down, with signs covering them saying Long Gun OC is legal.
<Officer> What if they call us?
<OC Advocate> I would hope that they don't, after all we are inviting you guys to walk with us and arrest or disarm anyone acting out of line.
Re: Calculated to alarm
Posted: Wed Jan 29, 2014 10:51 pm
by 03Lightningrocks
A-R wrote:What if you're merely carrying your rifle from your car to a gun store located inside the mall (as one of those arrested claims to have been doing?)..
Part of the problem with this situation is that it wasn't a gun store. It was a "tactical supply" store. Another problem is that this guy went on the internet and made it pretty darned obvious he was trying to make a point. The only question is if he was doing it to get free publicity for his store or was he simply trying to impress his Internet buddies.
Re: Calculated to alarm
Posted: Wed Jan 29, 2014 11:19 pm
by A-R
03Lightningrocks wrote:A-R wrote:What if you're merely carrying your rifle from your car to a gun store located inside the mall (as one of those arrested claims to have been doing?)..
Part of the problem with this situation is that it wasn't a gun store. It was a "tactical supply" store. Another problem is that this guy went on the internet and made it pretty darned obvious he was trying to make a point. The only question is if he was doing it to get free publicity for his store or was he simply trying to impress his Internet buddies.
Good point, and I forget the details, but was he arrested before or after authorities knew this?
Re: Calculated to alarm
Posted: Wed Jan 29, 2014 11:42 pm
by 03Lightningrocks
A-R wrote:03Lightningrocks wrote:A-R wrote:What if you're merely carrying your rifle from your car to a gun store located inside the mall (as one of those arrested claims to have been doing?)..
Part of the problem with this situation is that it wasn't a gun store. It was a "tactical supply" store. Another problem is that this guy went on the internet and made it pretty darned obvious he was trying to make a point. The only question is if he was doing it to get free publicity for his store or was he simply trying to impress his Internet buddies.
Good point, and I forget the details, but was he arrested before or after authorities knew this?
I don't remember for sure. I believe I read that he actually went down and turned himself in when he found out they had decided to make an arrest. I would have to look it up again to be sure.
Re: Calculated to alarm
Posted: Thu Jan 30, 2014 12:06 pm
by VMI77
K.Mooneyham wrote:
What worries me is that someone might move here from, for example, NYC or Chicago, where it has been beaten into them that only criminals and police have guns, and thus even the barest glimpse of a firearm will generate "alarm" from someone of that sort. Is that really how we want our state to be? And before I get beat up as being pro-"carry an AR into Starbucks", I assure you I am not. But should I get arrested for carrying a Mosin Nagant (hard to find a case for such a long rifle) from my truck to my house if I have to park on the curb, and a neighbor is "alarmed" by the sight of the rifle? There has GOT to be more to "calculated to alarm" than just someone getting upset.
When my son was working security something along those lines happened to his boss. His boss was cleaning guns at his kitchen table, and some hysterical liberal who had immigrated from an anti-gun state called the police to report a man with a gun. While the only consequence was a visit by the police it's a indication of what anyone seen anywhere with a gun might face from such random hysteria.
Re: Calculated to alarm
Posted: Thu Jan 30, 2014 12:49 pm
by 03Lightningrocks
VMI77 wrote:K.Mooneyham wrote:
But should I get arrested for carrying a Mosin Nagant (hard to find a case for such a long rifle) from my truck to my house if I have to park on the curb, and a neighbor is "alarmed" by the sight of the rifle? There has GOT to be more to "calculated to alarm" than just someone getting upset.
When my son was working security something along those lines happened to his boss. His boss was cleaning guns at his kitchen table, and some hysterical liberal who had immigrated from an anti-gun state called the police to report a man with a gun. While the only consequence was a visit by the police it's a indication of what anyone seen anywhere with a gun might face from such random hysteria.
The real reason this issue goes round and round is folks like to make arguments about situations that have NOTHING to do with the issue at hand. These two post are a great example. I am going to assume I don't need to explain why.
Re: Calculated to alarm
Posted: Thu Jan 30, 2014 8:18 pm
by baron
A-R wrote:Another thought from a different perspective. Let's say the open carry agitators preferred interpretation is correct and what they are doing does not rise to the level of "calculated to alarm"?
What then is an LEO to do when the continue receiving MWAG 911 calls?
I realize the hardcore 2A civil libertarians will strongly disagree with this approach, but why not treat these calls like a trespassing call? Issue the open carrier an official "warning" that their actions ARE causing alarm and if they continue or repeat such actions knowing this information then the LEO will have no choice but to conclude that they are doing so in a "calculated" manner and arrest them for 42.01(a)(8).
They can give them a trespass warning for that business but a city-wide trespass warning seems like a Jim Crow relic. Honestly, a law enforcement agency that respects the constitution would treat a "man with a gun" call a lot like they treat a "man with a turban" call.