Inclusion in Texas Gang Membership Database Limits Gun Rights

[Rick Mason]

For the "infringement" portion, Plaintiff pleaded that "[t]he stigma of being in the gang database … affects his Second Amendment right to carry a handgun in his vehicle[.]" Specifically, Plaintiff pleaded that his inclusion in the TXGANG database burdens his right to carry because—despite his valid license to carry—he now fears prosecution under the Texas Penal Code if he carries a firearm in his vehicle during his regular trips to El Paso for veteran services and his occasional flights from the airport. Further, Plaintiff pleaded that Defendants labeled him a "criminal street gang member" in the database and deprived him of his right to carry without due process because he was not afforded notice or opportunity to be heard "to challenge the inclusion before or after it was made." Construing the Complaint in favor of Plaintiff, the Court is of the view that Plaintiff has pleaded enough facts to establish that Defendants "sought to remove or significantly alter [his Second Amendment right to carry, as] recognized and protected by … one of the provisions of the Bill of Rights that has been 'incorporated.'" …

Inclusion in Texas Gang Membership Database Limits Gun Rights, Might Violate Due Process


Seems pretty cut and dried to me.

 

[Alamo]

Some background and context:

The particular statute affecting carrying of firearms,

Texas Penal Code § 46.02 (a-l)(2)(C), was enacted into law a few legislative sessions ago as an expansion of gun rights called the Motorist Protection Act (MPA). Carrying a handgun in public in Texas has been illegal since the post-Civil war period unless one of the defenses to prosecution apply. Prior to the advent of licensed carry the only defenses to prosecution were being on your own property, being a commissioned peace officer, a licensed security guard, some for hunting, and carrying an unloaded handgun to and from the range. There was a further defense called "traveling" -- if you were "traveling" you could legally have a loaded handgun with you in your vehicle. However the statute did not define "traveling" so it was left up the cop on the spot, and if you were arrested, the prosecutor, the judge, and the jury to determine if you were "traveling". As I understood it the case law was not all the clear either. There was apparently one precedent that stated if the beginning of your journey started in one county and ended in another, then you were traveling. But what if you started and stopped in the same county? Some Texas counties are bigger than some other states, or even countries. Your defense was at the whim of the courts.

The Concealed Handgun License that came into being in 1995 added licensed carry as a defense to prosecution which covered those who paid the fee (expensive in the beginning), passed the academic and shooting tests, and passed the background check (which was a bit stringent). Because of the ambiguousness of the "traveling" defense in the 2000s the Legislature decided to try to make it more useful and less subject to whim. I don't recall the exact wording they put in the statute, but it didn't work. The Democrat DA for Harris County (Houston) publicly announced that essentially 'nothing in the law has changed' and directed the HPD to arrest anyone who had a gun in their car but no CHL. This seriously irked the Legislature and in the next session they passed the MPA which explicitly made it legal for anyone to carry a handgun in their vehicle (boat, motorcycle, RV) as long as than handgun was not in plain view, the person was not committing any crime more serious than a traffic infraction, was not a prohibited person under federal law, and was not a member of a criminal street gang.

The Bandidos motorcycle thugs believe they own Texas, and have been in El Paso for about 50 years. Some disaffected members left the Bandidos and started their own gang called the Kinfolk in 2016. Another motorcycle gang has also tried to move into El Paso, which has not pleased the Bandidos. On 30 July 2017 the president (Juan Martinez) and some other members of one of the three (!) El Paso chapters of the Bandidos were in a bar when a couple Kinfolk members confronted them. (Note: this same president and two other Bandidos were arrested almost exactly a year prior for a fight he started when he went to another bar and tried to take away the vests of rival gang members. The cops grabbed the bandidos, the rivals, and came up with several bats, batons, and guns). I believe there was some shoving, the the Kinfolk members started shooting, hitting the Bandidos president and several other Bandidos and members of another gang "supporting" the Bandidos. Martinez died from his wounds. There were several video cameras in the bar documenting the fracas and police soon arrested and tried two Kinfolk members. The one who shot Martinez was convicted of several organized criminal activity offenses and his prison sentences run until 2075. Not sure what happened to the other guy.

It's this Bandidos president's funeral that the subject of the above post went to in El Paso on 12 Aug 2017, along with several hundred other bikers, mostly Bandidos and their "support" gangs. As the cops noted, and just like terrorist funerals in the mideast, events like these are just perfect for rival gangs to use as the target for attachks, so there was a heavy law enforcement presence who no doubt took careful note of who showed up.

I think it is not constitutionally correct that a right, like the 2A, can be curtailed through something less than a properly adjudicated court process, but I also think if you like to hang around with known gangs you are going to catch some fleas.
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[DeadeyeChrista'sdad]

Thanks, Alamo. That's some crazy background.