open-carry-airportSince Texas’ open carry law went into effect at the beginning of the year, Pistol Pete has carried his Glock everywhere he can in his shoulder holster. In a rush to make his flight to Houston for a business meeting, Pete forgets to remove his holster and attempts to walk through TSA’s screening with his loaded Glock. Does he face big-time legal trouble when the TSA agent sees his gun?

Pete’s Not Alone.

Apparently, passengers attempt to bring guns through airport security several times a day, and TSA says the numbers keep rising each year.

It’s Okay in Texas—if Concealed.

Some Texas airports took a proactive approach to the new open carry laws by posting statements on where gun owners can carry their weapons on airport property. In addition to open carry, last year the Texas Legislature passed a law that gave concealed carry owners the opportunity to immediately leave the airport screening area when security notified him or her that their weapon was discovered. However, the law also seems to provide that it is not a defense if Pete openly carried the weapon, even though he has his CHL. So, Pete may still be in trouble for his open carry folly—although TSA will probably give him a free pass by allowing him to leave the security area and store the weapon in his truck.

Each State is Different.

Pistol Pete might be in some trouble, had this happened in another state.  Attempting to carry a gun through airport security is a state issue—not a federal issue—and thus the penalty, if any, is determined by the jurisdiction where the airport is located.

Tilting the Scales in Your Favor.

Accidents happen, especially when we’re distracted. If you inadvertently attempt to take a handgun through security (whether open or concealed carry) tell the TSA agents it was a mistake, you forgot you had it on you, and that you would like to go back to your vehicle.  Remember, staying calm is likely to get you the best result under the circumstances!

If you are traveling outside of Texas and plan to bring your gun with you, you should review the gun laws for the states you are traveling through.

“Open Carry” advocates recently made the news by openly carrying rifles and shotguns into Texas businesses. The Texas Alcoholic Beverage Commission (TABC) issued a REMINDER to all those who hold a Liquor License that businesses licensed to sell or serve alcoholic beverages are prohibited by state law from allowing rifles or shotguns in the building.

Specifically, Section 11.61(e) of the Alcoholic Beverage Code says that TABC shall, after the opportunity for a hearing, cancel a permit if the permittee knowingly allowed a person to possess a firearm in a building on the licensed premises. Some exceptions include licensed concealed handguns and peace officers.

Tilting the Scales in Your Favor

If an individual carries a rifle or shotgun into a TABC-licensed business and the business owner knowingly fails to remove them, the business owner’s TABC license is at risk. The business owner should ask the patron to leave the premises. If the patron refuses, the permittee may contact the police and file criminal trespassing charges under Texas Penal Code Section 30.05.

If this is of interest to you, stay tuned for more next month.

Amon Fire and B.A. Ware have been hunting buddies since high school and have hunted with each other many times.  The two men head out one crisp November day to go turkey hunting, as they are bound and determined that this year’s Thanksgiving bird will not come from the local grocery store.  Fire and Ware quickly spot a flock of toms in a draw and hatch a plan.  Ware will remain at his truck on the rise and will shoot at any birds that are flushed out of the woods, while Fire will circle around on foot and shoot at any birds spotted in the woods.  As was their custom, if the plan were to change, Ware was to honk the truck’s horn.  Fire begins his stalk through the woods and spots the flock 60 yards ahead.  Fire estimates that Ware’s truck, according to their plan, should be at least 400 yards to the right of the line of fire.  However, unbeknownst to Fire, Ware has changed position and is hiding in a tree, obscured by foliage, waiting for the turkeys to be flushed.  Fire squeezes the Beretta’s trigger and immediately hears a human cry for help.  Fire runs to investigate and finds that he has shot, and seriously injured, Ware.  Ware subsequently sues Fire claiming that he did not use ordinary care to ascertain that his hunting companion was positioned in the brush behind the turkey.  Does Ware have a claim?

Probably not.  A hunter found to negligently use a weapon, will be liable for injuries proximately caused by his negligence.  Fire must exercise reasonable care and must not only be sure he is shooting a turkey, but also that no one is in his line of fire.  If Fire can show that Ware deviated from their hunting plan – by not signaling that the plan had changed and by moving into the trees – it would not be foreseeable to Fire that Ware would be in the line of fire and therefore Fire would not be negligent.  Now compare a scenario where Fire shoots at the bird, misses, and his stray bullet hits a person in a house which was obscured through the trees.  In such a case, Fire could likely be civilly and criminally liable even though he was unaware that a residence was located behind the foliage.

Tilting the Scales in Your Favor.

Pay attention to the Rules Hunters Can Live By[1] . . . Ten Commandments of Shooting Safety offered by the Texas Parks & Wildlife Department

1. Always point the muzzle in a safe direction. Do not point a firearm or bow at anything you do not intend to shoot. Keep your finger out of the trigger guard until the instant you are ready to fire.

2. Treat every firearm or bow with the same respect you would show a loaded gun or nocked arrow. When picking up a firearm, the first thing is point the muzzle in a safe direction and check to see if it is loaded. Read your instruction manual carefully before you handle new firearms or bows.

3. Be sure of your target and what is in front of and beyond your target. Before pulling the trigger you must properly identify game animals. Since you do not know what is on the other side, never take a shot at any animals on top of ridges or hillsides. Know how far bullets, arrows and pellets can travel. Never shoot at flat, hard surfaces, such as water, rocks or steel because of ricochets.

4. Unload firearms and unstring conventional bows when not in use. Leave actions open, and store sporting arms in cases and under lock and key when traveling to and from shooting areas. Take bolts out or break down shotguns if necessary.

5. Handle firearms, arrows and ammunition carefully. Avoid horseplay. Never jump a ditch, climb a fence, a tree or a ladder with a loaded firearm or bow and arrows. Never face or look down the barrel from the muzzle end. Be sure the only ammunition you carry correctly matches the gauge or caliber you are shooting. If you fall, disassemble the gun and check the barrel for obstructions. Carry a field cleaning kit.

6. Know your safe zone-of-fire and stick to it.  Your safe zone-of-fire is that area or direction in which you can safely fire a shot. It is “down range” at a shooting facility. In the field it is that mental image you draw in your mind with every step you take. Be sure you know where your companions are at all times. Never swing your gun or bow out of your safe zone-of-fire. If in doubt, never take a shot.

7. Control your emotions. If you lose control of your emotions you may do something carelessly. If you just shot a target or animal, in your excitement you may turn with a loaded firearm back toward your friends or you might run with a loaded firearm toward a downed animal. You may, in anger, lose control of your emotions. Show discipline.

8. Wear hearing and eye protection. Firearms are loud and can create noises damaging to hearing. Wear glasses to protect your eyes from escaping gases, burnt powder and other debris.

9. Don’t drink alcohol or take drugs before or while handling firearms or bow and arrows.Alcohol and drugs impair normal physical and mental body functions  and affect emotions, making it easier to lose control.

10. Use Common Sense to be aware of circumstances requiring added caution.

For additional analysis, Google the Texas case of Thompson vs. Gaar, upon which this fact pattern is loosely based.

Will this Legislative Session impact business owners? With the assistance of our own LRM Freshman State Rep. Jeff Leach, R-Plano, Tilting the Scales will periodically post updates on bills that might affect your business, along with an occasional humorous twist.

As an example and keeping in the tone of this month’s postings on gun control, as the federal government moves forward on its plans to tighten gun restrictions, Texas lawmakers are proposing legislation to expand gun rights in the state. The latest proposal is HB 700, a so-called “open carry” bill filed last week by State Rep. George Lavender, R-Texarkana, to allow individuals with concealed handgun licenses to carry weapons in plain view on a belt or shoulder holster. Similar legislation failed last session. Other recent proposed policy changes include allowing concealed handguns on college campuses, and arming and training school officials, including teachers.

More summaries to come as we continue through this legislative session.

Assult RifleAttendees at the midnight showing of the remake of the movie “Paladin – the Gentleman Black Knight” were ambushed at the Orpheum Theater. According to news reports the accused bought a ticket and sat in the audience. He waited until after the movie started and then stepped out where he donned riot gear and re-entered the theater, tossed two gas canisters and began shooting into the crowd.  Subsequent investigation suggested insufficient security for anticipated crowds and a lack of alarm system controls on the emergency exit. Is the business owner liable to its customers who were injured in the shooting?

Owner Liability Issues to Customers

Probably not the customers (employees – a different story – will be addressed next month). While a business owners must take reasonable steps to protect visitors coming onto the property or people coming to do business in their store, for victims successfully to recover compensation they must show that past violent incidents reasonably caused the mass shooting at that particular theatre to be foreseeable. The Orpheum responded to its patrons’ lawsuits seeking a dismissal and argued, “It would be patently unfair, and legally unsound, to impose on the Orpheum… the duty and burden to have foreseen and prevented the criminal equivalent of a meteor falling from the sky.” There was no history of similar events to argue a pattern. There was no communication of a threat. The theater would likely be successful in arguing it could not have reasonably foreseen that a deranged gunman would shoot up the theater because it is no more at risk for a mass shooting than any other venue hosting a large crowd of people. Hiring armed security guards over and above the presence of routine local law enforcement patrols is not an ordinary and customary procedure for suburban movie theaters in relatively low-risk areas.

A pattern of criminal problems, such as repeated robberies at the business or assaults in the parking lot, are generally required for courts to hold businesses liable for a crime on their premises.

Tilting the Scales in Your Favor

Insurance. Up to forty percent of businesses affected by a natural or human-caused disaster never reopen. If this happened at your business, could your business survive? Evaluate your commercial property and business interruption policies as well as reputational and crisis management coverage. For most businesses, the brunt of the insurance response will likely fall under commercial general liability coverage because there is no exclusion for random acts of violence or mass events. You may wish, however, to consider public liability insurance. Because of their high-severity and low-frequency nature, insurance for public liability occurrences is designed to protect from incidents on the premises those public venues and other businesses that frequently bring large crowds – a shooting, a structure collapse, an explosion, a terrorist act. Talk to your insurance agent, and review your existing general liability insurance policies.

Reasonable Precautions. The Department of Homeland Security created a checklist of measures recommended to create a business preparedness program. Generally, those measures are summarized as organize, develop and administer a preparedness program, identify the hazards and assess the risks. Then, implement the plan and address the emergency response, crisis communications, employee assistance and training. Annually test and evaluate the plan using a variety of exercises and scenarios.

SEE ALSO:

CHL in TexasSam Colt lives in Dallas and is a gun enthusiast.  As a result of a rash of car jackings in his neighborhood, Colt regularly carries a Glock 9mm in his vehicle for self-protection, although he does not have a concealed handgun license.  Driving to his local bank last week, Colt tosses his gun into the passenger seat so that he has easy access to it in the event of an emergency and to dissuade any anyone with bad intent.  Unfortunately, Colt gets stopped for speeding and the officer sees the gun.  Is Colt in trouble?   

Carrying a Gun in the Car

Yes.  Pursuant to the 2009 Texas Motorist Protection Act, Colt does not need a concealed handgun license to carry a handgun in his car.  However, the weapon must be concealed and Colt may not otherwise be:  (1) engaged in committing a crime; (2) prohibited from carrying a weapon; or (3) a member of a gang.  Colt’s violation would be classified as a Class A misdemeanor (the most serious level of misdemeanor) and would be punishable by a fine of $4,000 or less and/or jail time up to a year.  Interestingly, if Colt instead chose to carry a rifle/shotgun in his car, that weapon need not be concealed.

Where Concealled Carry is Prohibited

Now, assume for the moment that Colt has a concealed handgun license.  Could he bring his concealed weapon into his local bank?  Probably.  While the Texas Penal Code specifies many places that one cannot bring a concealed handgun, a bank is not one of them unless the bank has elected to post a sign forbidding concealed carry on the premises.  Types of places where concealed carry is prohibited include, among others:

  • Schools or on school buses;
  • Polling places;
  • Courts and court offices;
  • Locations where high school, college or professional sporting events are taking place;
  • Nursing homes;
  • Amusement parks;
  • Places of worship;
  • Government meetings;
  • Anywhere alcohol is sold if 51% or more of their revenue is from the sale of alcohol;
  • Secured airport areas;
  • Within 1,000 feet of the premises of an execution on the day of execution; and
  • Businesses posting signs prohibiting handguns on their premises based on criminal trespass laws.

Tilting the Scales in Your Favor

The best rule of thumb for those who do not have a concealed handgun license is to always transport your gun in its case in the back of your car.  If you are keeping the gun in your car for safety reasons, then store it in the glove box or under your car seat. 

SEE ALSO: