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Some worried by Texas law that allows drivers to have weapons

By Steve Thompson
The Dallas Morning News

DALLAS — The state's new castle law has grabbed the spotlight. But some say a lesser-known gun law, which also took effect in September, could have greater consequences.

The law allows Texans to carry guns in their cars, even without a concealed handgun license. As long you meet the law's other requirements – such as not being a gang member, refraining from criminal acts and keeping the gun out of sight – you can pack heat in your glove box.

"Castle is just kind of yawn," said Alice Tripp, legislative director for the Texas State Rifle Association. Texans have always enjoyed robust rights of self-defense. But the gun carrying law "is dramatic," she said.

Nicknamed the "Carjacking Law" by some, it is designed in part to give law-abiding drivers the right to carry a gun for protection.

But Dallas County District Attorney Craig Watkins worries that criminals may benefit most. He says the law, which also allows people to carry guns from their homes to their cars, has created a loophole that a defense lawyer could drive an armored tank through.

"If your car's in a parking lot, and you're walking with a gun, and it's concealed, and you say you're on your way to your car," Mr. Watkins said, "then that's your defense.

"I think you have a lot of folks with criminal intentions that will get out of unlawful possession of a firearm because they fall within that definition of on their way to their car," he said.

The law's author, Rep. Carl Isett of Lubbock, said that concern has yet to be tested in court.

"He would have to be in the commission of a crime for you even to want to arrest him for anything anyway," he said.

Under the new law, someone committing any crime other than a minor traffic violation can be charged for having a gun in the car.

"If they have a problem with this law then they probably just have a problem with the Second Amendment," Mr. Isett said.

Advocates say the law is made for folks like Keith Patton. The 52-year-old geologist lives in Katy, just outside Houston.

One night he was on his way home after a day of work and several hours at a martial arts school where he was an instructor. As he drove his red Ford Explorer through central Houston, police officers pulled him over for what they said was an illegal lane change.

That day Mr. Patton, an avid hunter and shooter, had purchased a handgun from a friend at work. It was stowed under a gym bag by the back seat.

As the officers approached, Mr. Patton realized his wallet and driver's license also were on the back seat. He rolled down his window and — careful to keep his hands in plain view — let the officers know about the unloaded gun.

"They summarily asked me to exit the vehicle, asked me where I'd been, where I was going, handcuffed me, arrested me and put me in the squad car," Mr. Patton would later tell a committee of legislators.

Harris County prosecutors dismissed Mr. Patton's case after he convinced them he was taking the gun home from a legal purchase. But by then, he had spent 27 hours in custody and paid a couple thousand dollars to free his car from an impound lot and hire an attorney.

"We finally came to the conclusion," Mr. Isett said, "that if we were going to stop prosecuting attorneys from advising their law enforcement agencies to arrest everyone with a gun, that this was the only way we were going to be able to do it."

Confusion for years

The problem started with ambiguity in older law.

"Texans have always believed that they could travel with a gun, even though traveling wasn't necessarily defined," Mr. Isett said.

Since 1996, when the state's new concealed carry law first allowed those with licenses to carry concealed guns, lawmakers have supported the principal that people didn't need permits when traveling.

Problem was, nobody quite knew how to define traveling. Did you need to pack a suitcase? Cross the county line? Stay overnight?

In 2005, the Legislature passed a bill to clarify things. It stopped short of defining traveling, saying instead that if drivers met certain conditions, they would be "presumed" to be traveling.

Essentially, you were "presumed" to be traveling if you were not in a gang, not on parole or otherwise prohibited from carrying a gun, not committing any crimes, and did not leave the gun in plain view.

To many prosecutors, the law was as clear as mud. What if a driver met all the conditions to qualify for the "presumption," but was only headed around the corner for a carton of milk? Was he traveling?

Some prosecutors, such as Bell County Attorney Richard Miller, told their police agencies to keep making arrests much as they had before. In a memo, Mr. Miller advised officers to leave it to his office "to sort out the legal niceties."

Such policies incensed lawmakers, who said they had created the law to stop such arrests. They also drew the ire of the American Civil Liberties Union, which, in an unusual political partnership, backed the National Rifle Association on the issue.

"There were these cases around Texas where we believed the law was still being pretty aggressively applied, and so did the ACLU and the NRA," Mr. Isett said. "And those aren't two groups that normally are on the same team."

Happy it's cleared up

Many prosecutors, while not necessarily happy to have more people carrying guns, are glad the new law has cleared up the legal debate, said Shannon Edmonds, legislative director for the Texas District and County Attorneys Association. "That helps them do their job," he said, "because they have some certainty."

Dallas police say it is too early to tell how the new law might affect crime. "After three months, I don't think that we have enough data to see," said Assistant Chief Ron Waldrop.

A look through Dallas police records from this summer suggests that most of those arrested for unlawful carrying were found breaking other laws as well. They were caught carrying drugs, getting drunk in public or committing burglary.

In such cases, an arrest for unlawful carrying still can be made today. But in other cases, where accompanying crimes cannot be proven, police now have no cause to reach for their handcuffs.

As an example, one overcast night in June police officers in Dallas were dispatched to reports of gunfire in Oak Cliff. They arrived to find a Buick rolling slowly through the neighborhood.

The officers heard a shot come from the car's direction. Then it drove away.

They pulled over the Buick and ordered its driver and passenger to step out.

As the officers searched under the passenger's seat, they found a black semi-automatic handgun. On the back seat, they found a spent shell casing. The passenger said he knew nothing about them.

The officers lacked evidence to attribute the gunfire to the driver, 25-year-old auto technician Jorge Alberto Espinoza. But they did arrest him on a charge of unlawfully carrying the gun.

That arrest, which resulted in a case that is pending, is the sort that officers no longer can make.

"If someone out there is carrying a gun, but they don't have a criminal record, and they haven't committed a crime, and they're not a member of a gang, that tool might be out of our box," Chief Waldrop said.

Under Kunkle

In the years since David Kunkle became police chief, unlawful carrying arrests in Dallas have climbed.

"He basically changed our strategic approach to violent crime," Chief Waldrop said. The new focus has been drugs, gangs and guns.

In June 2004, the month Chief Kunkle was sworn in, 11 people in Dallas were arrested for unlawfully carrying guns. By June 2007, the number had reached an all-time high of 124.

But in July, the month after Gov. Rick Perry signed the new gun bill, unlawful carry arrests in Dallas dropped to 108. In August, they sunk further to 72. And in September, when the law actually took effect, they fell to 63.

"Whereas before, you had to go through extensive background checks to get the concealed license, had to be trained," Mr. Watkins said, "now you can buy one and carry it around without really anyone having any say so on whether or not you should have it.

"It's kind of like the wild, wild West, unfortunately."

Another danger, Plano police spokesman Rick McDonald said, is that without concealed handgun licenses many people will have to leave their guns in theirs cars as they go about their business. So instead of just stereos, car burglars may make off with loaded weapons.

"It's harder to carjack your car when your car has a pistol in it," Officer McDonald said. "Well, if they do carjack a car, and you do have your pistol in the glove box, guess what? Now they've got a car and a pistol."

He said that could lead to more firearms on the street.

The ultimate effect of the law is difficult to predict, he said. "For everything good about it, there's something bad about it."

Copyright 2008 The Dallas Morning News

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