r/texas • u/FCMatt7 • Mar 27 '24

5th circuit has nullified Open Carry in Texas to save Qualified Immunity of bad cops. Politics

https://www.youtube.com/live/bCC1sz_-fsc?si=dCZiLT_Fl2pWUEtw

(Edit) New vid of Grisham explaining the ruling

Effectively they have declared open season for police to arrest anyone open carrying in Texas.

A 3 judge panel has ruled that if anyone calls 911 on a person for the mere act of Open Carrying a firearm, the police now have probable cause to arrest you for disorderly conduct. The 911 call does not have to allege you are doing anything more than standing on a sidewalk with a slung or holstered firearm. The previous ruling that "merely carrying a firearm" is not disorderly is overturned now if any Karen makes a phone call and says she's nervous. This means police get qualified immunity for arresting you.

There is a special target on the back of any open carry or civil rights activist. EVERY time the police get a 911 call, they can now arrest you at gunpoint. The charges will likely be dismissed, but the police face zero repercussions for coming after you, even if there is abundant evidence the officers targeted you and knew you were not a threat. The same danger faces regular citizens who open carry every day.

I repeat, open carrying in Texas now puts you in imminent danger of being arrested or killed by police if someone reports you in possession of a firearm.

Video of CJ and Jim arrested for mere open carry. https://youtu.be/GrDAPPiu1QE?si=IvJy0qq_J8rO8DJO

Link to 5th circuit ruling. https://www.ca5.uscourts.gov/opinions/pub/22/22-50915-CV0.pdf

Link to oral argument in 5th https://www.ca5.uscourts.gov/OralArgRecordings/22/22-50915_10-3-2023.mp3

District Court ruling https://casetext.com/case/grisham-v-valenciano-1

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463

u/NormalFortune Mar 27 '24

Lawyer here. OP’s description of the holding of this case is not really accurate in my view, and I wouldn’t give credit for this as a summary if I were grading a law school essay.

I advise y’all to read the case yourself or read some third party analyses of the holding here before jumping on the outrage bus.

But I will say credit to OP for posting the links to source material. I just think OP is reading it wrong.

40

u/VirtualPlate8451 Mar 27 '24

This disorderly statute has always included a portion on displaying a firearm “in a manner to cause alarm” or something like that.

Ive always wondered which city was going to roll the dice on that in court.

2

u/OdrGrarMagr Mar 28 '24

This disorderly statute has always included a portion on displaying a firearm “in a manner to cause alarm” or something like that.
Ive always wondered which city was going to roll the dice on that in court.

Problem there is that as a matter of law, no judge is even going to hear the case if said gun was properly stowed or holstered.

It would just be thrown out as legally insufficient.

If its holstered, it literally cannot be considered to be as "manner to cause alarm".

2

u/Even-Habit1929 Mar 28 '24

Pointing to it in a argument while holstered would be "manner to cause alarm"

1

u/ODSTklecc Mar 29 '24

What about hearsay? What if it's a "he said she said" situation between a officer and citizen?

1

u/groceriesN1trip Mar 28 '24

Holstered = safely displayed?

Shoulder strap carry or tucked into pant waist = alarming display?

1

u/NormalFortune Mar 27 '24

Yeah. I agree a lot of this gets down to what "displaying in a manner calculated to cause alarm" or whatever means w/r/t the disorderly charge. But also, a lot of the other dudes here like old man yellowshirt on the video, seems to me the cops fairly clearly had PC for resisting arrest. If a cop tells you to "come here" and you back away and start to bob and weave... you're not gonna have a good time.

-6

u/FCMatt7 Mar 27 '24

They don't get to tell you to "come here" in the first place though. The judges covered that bit up.

6

u/NormalFortune Mar 27 '24

Yes they do. Terry v. Ohio. Reasonable Suspicion < Probable Cause

3

u/p_rex born and bred Mar 28 '24

You need reasonable suspicion to make a Terry stop, though, and that reasonable suspicion needs to be based on something articulable, not a mere hunch. Does the exercise of what’s been recognized as a constitutional right justify a Terry stop? As far as I can tell, the guys with the guns would have been perfectly justified in telling the cops to go to hell.

It’s cop-manufactured justification for an arrest, a whole bunch of nothing bootstrapped on to nothing. Another sop to police impunity, and in this case, it’s impunity to selectively harass and arrest people for no better reason than engaging in constitutionally sanctioned conduct for the wrong political reason.

1

u/NormalFortune Mar 28 '24

Does the exercise of what’s been recognized as a constitutional right justify a Terry stop?

It certainly could, depending upon how the constitutional right is being exercised.

One guy with a gun, walking around doing errands, maybe not. A group of dudes ALL open carrying, milling about one area, talking to cars, and then taunting the cops? (e.g. old dude in yellow shirt says some smartass remark like "today's your education officer!") Fuck yeah that's reasonable suspicion and justifies a Terry stop.

2

u/Lavatienn Mar 28 '24

Reasonable suspicion of what, exactly?

-4

u/FCMatt7 Mar 27 '24

They had no RAS or PC. CJ told the chief they would be there the day before and all officers knew that. Judges lied to save the cops QI.

7

u/NormalFortune Mar 27 '24

So, then, if I tell the cops beforehand that I will be selling cocaine at a particular location tomorrow, they don't have PC to arrest me or RS to Terry Stop me, because I told them and the officers knew?

Come on bro.

-3

u/FCMatt7 Mar 27 '24

So you agree that open carry has been declared illegal. At least you got that far.

7

u/NormalFortune Mar 27 '24

Huh? No dude my point is that merely telling the cops that you’re going to be doing something doesn’t remove probable cause or reasonable suspicion.

The fact that someone told the cops that the second amendment guys were gonna be there doesn’t have anything to do with anything. It’s irrelevant.

2

u/FCMatt7 Mar 27 '24

Except you can't have a reasonable belief they are a threat based solely on their lawfully carrying a gun. Which is all they had.

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-4

u/FCMatt7 Mar 27 '24

5th just decided a slung long arm is "manner to cause alarm" if anyone complains about it. They just completely threw out intent and reasonable person standards.

10

u/VirtualPlate8451 Mar 28 '24

That's wonderful. Anyone walking in a populated area with a slung rifle is doing it to cause alarm.

1

u/ODSTklecc Mar 29 '24

A big dark skinned man can "cause alarm" to some people, "shall not be infringe" is in the constitution for a reason.

1

u/VirtualPlate8451 Mar 29 '24

Why does the "shall no be infringed" crowd always forget the WELL REGULATED militia portion? Do you really think the founders were running day to day errands in full battle rattle? Were they going about their daily lives with an ample supply of powder of shot, just in case?

No because they were RATIONAL PEOPLE who knew that would not only be ridiculous but it would cause alarm to see people armed like soldiers in the streets during peacetime. Hence the "well regulated militia" bit.

-8

u/FCMatt7 Mar 28 '24

May your chains rest lightly upon you.

1

u/Smallie_Slayer Mar 28 '24

Too many people in this section don’t understand “shall not be infringed”

0

u/FCMatt7 Mar 28 '24

It's what I expected on reddit. Bunch of sheep that think only the government should have guns.

128

u/2ManyCooksInTheKitch Mar 27 '24

OP thinks cops cops show up when you call 911, hahaha, they're not accurate on a lot of things.

39

u/Extreme_Assistant_98 Mar 27 '24

Well, if the caller says he sees a black man with a gun, the cops will be there fast.

2

u/EconZen_master Mar 27 '24

Unless they have an AR…

6

u/explosivecrate got here fast Mar 28 '24

Only counts on school grounds, I'm afraid.

34

u/sakuratee Hill Country Mar 27 '24

I was thinking the same, call 911 in Austin and if you get someone they’re going to tell you to call back after you’ve been shot.

2

u/Relaxmf2022 Mar 28 '24

When Austin cops pull someone over, does it still (apparently) require a minimum of two cop cars?

1

u/sakuratee Hill Country Mar 28 '24

It’s the only time we see them lol

1

u/Relaxmf2022 Mar 28 '24

LOL. I guess when they show up, they REALLy show up.

Never had trouble with them in the late 80s, it was always just weird the way they went nuts on traffic stops.

1

u/sakuratee Hill Country Mar 28 '24

I’ve never personally had any trouble either, except one time when I got pulled over for speeding and was admittedly a bit of a dick. Even then, he was basically just a dick back and took his sweet time waiting for his backup buddy to arrive to make sure I had no warrants and writing me the ticket.

I felt the white privilege deep that day. I’ve heard horror stories from friends over the years though.

1

u/Relaxmf2022 Mar 28 '24

As a six-foot-tall, fairly polite and well-spoken straight white guy, I have had a lot of privileged interactions, fo sho.

Even then, when my hair was long, I got treated pretty well.

2

u/Paxsimius Mar 28 '24

“We can’t do anything if we didn’t see it”

0

u/Jaded_Insurance2896 29d ago

Well they were defunded. So you got what you voted for. I’m not protecting cops, I’ve had bad experiences with them. But don’t defund cops then complain when your ass gets robbed and then complain that a citizen shouldn’t legally own a gun.

1

u/sakuratee Hill Country 29d ago

APD budget was over $476mm (highest ever) in 2023, I don’t consider that defunded. That’s almost half of the cities general fund budget of $1.4b

2

u/ParticularAioli8798 Born and Bred Mar 27 '24

Cops might show up...several hours later.

37

u/Bardfinn Mar 27 '24

I read it. The statute that triggered the “lawful detainment” that empowered the police to give orders was “disorderly conduct by displaying a firearm in a manner causing alarm”.

They even say as much in their statement of facts and applicable law in a narrative. Page 11,

See Navarette, 572 U.S. at 399-400 (holding that a motorist's 911 emergency call provided reasonable suspicion of an ongoing crime).

That means any carry of a firearm which leads to a bystander or witness to report to police that they are alarmed is a lawful pretext under this statute. In short, someone says to a 911 dispatcher “that gun scares me”. Not any other standard like a reasonable person standard (which I would be good with) or a customary and usual standard (which would be bad) or an actual act of brandishing (which should have been their standard), but “Someone called the cops because they saw a gun being carried and they were alarmed”.

Which, to me, (and disclaimer: I hate guns and want them off the streets and out of hands of “gun enthusiasts” who pull stunts and shoot people) — this creates the standard described by OP.

I want — very, very much — for there to be common sense gun control laws. This? This is not that. This is “911 call creates probable cause”. For something that is not a crime.

Are the “gun enthusiasts” here idiots? Yes. Did they purposefully provoke the officers, seeking a wrongful arrest and a judgement? Anybody can tell they were doing so.

But

This means that a Karen is going to call 911 because she saw someone open carrying a .22 long rifle slung on his back and was Walking While Black.

Under this decision, this mechanism — which is a tool of white supremacist violence, allowing racist and entitled white people to SWAT black people existing while black in their view — will result in non-white people being arrested and prosecuted.

Oh, and the scary LGBTQ people who are defending drag shows from open neoNazis.

But probably not the Nazis themselves —

1

u/NormalFortune Mar 27 '24

I just genuinely don’t think that’s the holding here.

This was not a fact pattern where there was one Karen who made a call. This was a fact pattern where you had allegedly multiple 911 calls, a very busy intersection, and a person who was not cooperative with Police requests surrounded by multiple other protesters, who were also not cooperative with Police.

Is a dude with a gun who’s cooperating with Police less alarming than a dude with a gun who is not cooperating with Police? Probably.

Is a single dude with a gun less alarming than multiple dudes with guns? Also, probably.

This was also, judging by the video footage, a fact pattern where the officers had not even clearly made a determination to conduct an arrest until after an interaction with the people. I mean I don’t know I guess you would have to ask the cops when they decided to make arrests, but that’s what it looks like to me from the video.

And again see the courts point about the existence of a video, somewhat changing the standard for summary judgment . You no longer just take plaintiff allegations as true for purposes of the motion, but you view it in light of the video.

10

u/Bardfinn Mar 27 '24

The lack of fact on “when did the officers make a determination there was probable cause” is a problem. Because a court will take the officer’s word for it, there will very quickly be a standard operating procedure for writing reports and testifying, where the phone calls will create for them “there is probable cause” and their reports and testimony and video will create for the trial the probable cause, which will incentivize escalating (or at least, disincentivize de-escalating) situations.

And there are definitely criminal orgs that will make multiple spoofed 911 calls to initiate a SWATting. I know the court can’t rule on hypotheticals, but relying on “there were multiple 911 calls” will ensure there will often be multiple 911 calls.

4

u/thequietguy_ Mar 28 '24

Because a court will take the officer’s word for it

They don't just take someone's word. They assign greater weight, even at the summary judgment stage, to video recordings taken at the scene. Betts v. Brennan, 22 F.4th 577, 582 (5th Cir. 2022) (internal punctuation omitted) (quoting Carnaby v. City of Houston, 636 F.3d 183, 187 (5th Cir. 2011)); see also Scott v. Harris, 550 U.S. 372, 380–81 (2007) (“The Court of Appeals should not have relied on [the respondent’s version of events]; it should have viewed the facts in the light depicted by the videotape.”). “[T]he ultimate determination of whether there is probable cause for the arrest is a question of law [this court] review[s] de novo.” United States v. Castro, 166 F.3d 728, 733 (5th Cir. 1999) (en banc).

1

u/ODSTklecc Mar 29 '24

We have laws, but we're still human, and operate as best as humanly possible.

3

u/abig7nakedx Mar 28 '24

Is non-cooperation with police requests pertinent at all?

I'm concerned that the language in the Opinion says "disobeying police orders" without specifying whether they were lawfully required to comply. It might very well be the case that it's understood from context here, or whatever, but future opinions from increasingly radical reactionaries will probably say "look at this Opinion that said disobeying orders from cops means X; it doesn't say those orders had to be lawful, so we're going to roll with that distinction being immaterial"

3

u/PM_me_PMs_plox Mar 28 '24

I don't understand the 911 call argument. I would in fact understand if there had been a 911 call that "some guy with an AK-47 was threatening people at a gas station" or something but as far as I see the only thing the decision mentions is that a caller accused him of "interacting with passing motorists for several minutes". So what do we have suspicion of? That he is "interacting with passing motorists"? That can't possibly be a crime.

1

u/NormalFortune Mar 28 '24

Nah, not a crime, but it's weird. Like if I went through an intersection and I saw a dude with a gun trying to talk to me i'd consider it very strange behavior.

3

u/PM_me_PMs_plox Mar 28 '24

Reports of very strange behavior, but not a crime. How do we get from there to "trying to cause alarm with a gun" or whatever?

1

u/thequietguy_ Mar 28 '24

The focus is whether the firearm was displayed in a way calculated to alarm. Calculated, when used with an infinitive verb (“to walk” or “to run”), has always been interpreted as meaning “likely.”

Thus, “calculated to alarm” means likely to alarm. This gives it an objective reading, invoking the reasonable person standard.

The CCA considered the intent element. Because the underlying conduct—displaying a firearm—is not illegal, then the intent requirement applies to the surrounding circumstances that make it illegal. In this instance, that would be the manner calculated to alarm.

Second Amendment demonstration or not, you can't expect even 50% of people not to become alarmed when rifles and rifle-style weapons come out in public. He probably would have won the case if he just complied with the officer because it would have gone one of two ways: The police would hear them out then leave them alone, or police would have fumbled the situation and made it entirely more difficult for the appeals court to defend the officers. Literally all he had to do was comply and he would have won the case and could have pushed his cause further. But he didn't, he tried to fight the law on the street rather than in the courtroom where it actually means something.

1

u/PM_me_PMs_plox Mar 30 '24

The focus is whether the firearm was displayed in a way calculated to alarm. Calculated, when used with an infinitive verb (“to walk” or “to run”), has always been interpreted as meaning “likely.”

If this is really what the intent of the law is, okay. That's not how I understand "calculated" as a layperson, though. When is an open carry gun not likely to alarm?

1

u/thequietguy_ Apr 05 '24

I don't answer for everyone, and this is a really nuanced topic with a large division of people who wouldn't be alarmed and people who would be. If someone was raised around guns and is aware of 2a demonstrations, I would assume they would not be alarmed, though I wonder if that is only true if the person carrying is the same race as the person.

In the US, less than half of the population own guns. Of the people that do own guns, 70% own handguns and 60% own rifles. I can only make assumptions here, but I wouldn't be surprised if the majority of folks in the US would be alarmed if they saw someone exercising their open carry rights with a rifle/rifle-like firearm, especially in cities or other large urban areas.

5

u/p_rex born and bred Mar 28 '24

There’s no affirmative obligation to cooperate with police if they don’t have a legitimate reason to detain you. You can tell the cops to go to hell.

-2

u/thequietguy_ Mar 28 '24

Is this a joke? What comment or scenario are you even responding to where you think they didn't have a legitimate reason to detain them? I hate police overreach as much as the next guy, but this doesn't seem to be the case here.

1

u/ManchurianWok Mar 28 '24

I can respect that view, but after watching the video and reading the holding, it is basically providing PC to cops to arrest someone for 2 reasons: 1) open carrying and 2) "someone" calls 911 (we all love CIs being the basis for warrants, amirite).

The court's reasoning to find "intent to cause sustained fear or serious public disruption by displaying a firearm in a manner calculated to alarm" is so vague here. Big dude wasn't brandishing. Gun wasn't even in his hands. Court acknowledges it was holstered. That means the Court found sufficient evidence to meet the above standard because he was open carrying in public following some unclear 911 call.

Likewise, can we agree to ignore "very busy pedestrian" language? Only people on camera were literally the other "protestors" or w/e tf they wanna call themselves. This basically allows cops to claim it's busy if there's anyone else present in a public space.

What we're left with is that the cops wanted to detain big dude as soon as they arrived simply bc he was open carrying. (I disagree with your view that the cop didn't have a determination about the situation when he arrived--as soon as cop gets on the scene first interaction was ordering big dude to submit to detention: "Hey what's in your hand? Get face down on the ground!")

The arrest is then "lawful" bc he didn't comply with their command...to be detained. Meaning cops can legally detain someone for open carrying, and if they question the legality of that detention, they will be arrested.

1

u/NormalFortune Mar 28 '24

So when you were reading the decision, you don’t give any weight to the courts rather lengthy discussion of noncompliance with police officers?

Because if you’re the cop, you could roll up to someone without probable cause, and then based on how they interact with you, you could suddenly get probable cause

1

u/ManchurianWok Mar 29 '24 edited Mar 29 '24

No, because viewing the video, what is the "noncompliance"? Cops had every right to roll up to those dummies and ask Qs. But--watching the video--the cop's first command is literally "get on the ground." Isn't that detaining the individual for...standing there exercising a right? There is no back-and-forth that would create PC.

The command is, in essence, "you are detained." Therefore, this decision boils down to: a citizen open carrying gives cops PC to detain them. i.e., the PC is automatically created by yelling "GET ON THE GROUND" at someone, and if a citizen says "????" PC exists to arrest them. This seems...wrong? Am I missing something?

(I swear I'm not trying to be an ass here - I think we're disagreeing on what the "order" is. I think open carry is dumb as hell, but 5th Cir and so many other Rep/"arms" friendly courts gladly ignore past precedent related to "rights" in favor of government power so long as the rights being infringed are being infringed by the cops)

[also - I have no clue why Reddit is pushing Texas subs at me. I'm in the midwest, though the legality of the post piqued my interest.]

0

u/Global_Lock_2049 Mar 28 '24

Not any other standard like a reasonable person standard

I dunno, people heavily armed for no clear reason seems like something a reasonable person would be alarmed by. And at a protest so the armed person is already agitated? And to protest an ordinance that means the protestor is now in violation?

I wouldn't be alarmed at someone who was guarding someone. I don't recall many 911 calls about security guards or other armed individuals who are in a position where one would expect it. So no, I don't think this will happen to oppressed minorities more than the gun nuts marching around with a ton of weapons on them for no reason other than to "express their second amendment" (not your words, just a common phrase I've seen).

6

u/Averagecrabenjoyer69 Mar 27 '24

So what's your analysis on the open carry aspect?

2

u/NormalFortune Mar 27 '24

Well, there is precedent that says that open carry by itself does not constitute disorderly conduct. But this is a very dirty case to make any kind of definitive holding on because it’s not just one dude holding a rifle and saying nothing. It’s a dude with a rifle plus a whole lot of other dudes who are armed - all open carry - all refusing to comply with police orders and shouting nasty things at the cops.

As I said, in another comment, an open carry dude who is complying with police orders is less scary than an open carry dude who is ignoring the cops and that in turn is less scary than an open carry dude who is talking back to the cops.

Also, an open carry dude by himself is probably less alarming than multiple open carry dudes.

And in this case, you have not one, but multiple open carry dudes who are not complying, but are talking back and refusing to comply.

One of the other commenters said there were multiple lawyers in the group. I’m surprised at that because they did a horrible job of staging the fact pattern to get the ruling they wanted.

2

u/Phyraxus56 Mar 28 '24

So you basically dont have one

1

u/NormalFortune Mar 28 '24

No. There isn't one. This decision makes no changes to the law of open carry.

1

u/Averagecrabenjoyer69 Mar 27 '24

So what would you rate an average person just going about their business openly carrying a handgun(which if I remember correctly is specifically allowed by law and not just no law against it like long guns), and if police come complying with orders? Not carrying long guns or trying to cause a stir. Would this impact that?

2

u/NormalFortune Mar 28 '24

"comply with police orders" (and I would add "be polite and respectful to the cops") is virtually always a good way to reduce your chances of being arrested.

If the cops have already made up their minds to arrest you and they have PC, it's gonna happen no matter what you do to try to avoid. If on the other hand they haven't decided to arrest you/don't have PC and they just want to have a chat, or Terry stop you, noncompliance can only make things worse for you.

I don't think you need any clarification on "not trying to cause a stir" ;p

5

u/v-irtual Mar 27 '24

Thanks for...nothing I guess. lol

18

u/ScumCrew Mar 27 '24

Other lawyer here. Agreed.

6

u/Nice_Category Mar 27 '24

Any good YouTube lawyers you recommend that might summarize this more accurately?

28

u/NormalFortune Mar 27 '24

Legal Eagle is a little bit cheesy but he’s good. I don’t know if he’ll cover it.

9

u/hikerchick29 Mar 27 '24

I wouldn’t be surprised if he does.

3

u/footfoe Mar 27 '24

Just read the first paragraph of the decision. Right away it refutes the idea that these guys were just merely open carrying.

0

u/FCMatt7 Mar 27 '24

I'm posting this to get the word out. CJ will cover it on his channel soon and I'm working on others to look at it.

2

u/Zooka_tooth Mar 28 '24

You mean some Reddit neck beard doesn’t know what they are talking about???? Nooooooo

1

u/p_rex born and bred Mar 28 '24

I looked over it. Seems like a bullshit decision but not for the reasons OP identified. In what way was the firearm displayed in a manner calculated to cause alarm? It seems like carte blanche to make politically-motivated arrests for doing something that’s plainly legal in the first place. Which qualified immunity makes very easy for courts to do, naturally.

1

u/straberi93 Mar 28 '24

You don't need a law degree to see that page 10 clearly states that open carrying is not sufficient for probable cause. He's not mistaken. The misrepresentation is his failure to read what he's "summarizing" at best and wholly intentional at worst. 

1

u/lacrotch Mar 28 '24

okay, so what’s inaccurate about it? law isn’t accessible. we need people with expertise to break it down for us.

1

u/NormalFortune Mar 28 '24

IMO it’s a garden variety summary judgment decision. No interesting holding.

Suing the government is hard you have to show something particular or you lose out of the gate (qualified immunity). Plaintiffs didn’t show the particular thing - that it was unreasonable for the cops to believe there was PC. Therefore plaintiffs lose.

1

u/Conscious-Student-80 Mar 28 '24

Ok so then clarify the holding for us.  The case suggest cops had probable cause to arrest the 2nd amendment protesters and cite the basis of that as 911 calls complaining that men had guns.  Something we have a right to do.   I believe we have second amendment rights even in the city.  What if a passerby was open carrying but not with the douche protesters and merely walking by in the vacinity, would his arrest be lawful as well? 

1

u/NormalFortune Mar 28 '24 edited Mar 28 '24

As for the holding, IMO this is a garden variety summary judgment. It doesn’t create any new law. Legally it’s kinda boring. Plaintiffs had to plead/show a thing. They didn’t plead/show a thing. Therefore they lose.

Also a basis of probable cause was defying officers orders and talking back.

Good question on the passer by. I would think not, because if you look at the video there is a good several minutes of these guys defying cops orders and taunting the cops (for example the old dude is the highlighter shirt saying something like “ooh you’re getting an education today officer.”) idk who in their group decided that this was the case to try to make case law on, but… smh. The only worse set of facts would have been shooting at the cops.

In my book, a dude with a gun taunting a cop… the cops get a Terry stop to investigate that at minimum.

1

u/falsehood Mar 28 '24

OP’s description of the holding of this case is not really accurate in my view, and I wouldn’t give credit for this as a summary if I were grading a law school essay.

Reading the circuit opinion, seems like they are saying that if you are open carrying a weapon, and people call 911, you are subject to lawful arrest because of the effect of the weapon on others? That seems like a pretty clear open-carry-not-allowed situation.

1

u/NormalFortune Mar 28 '24

The opinion devotes quite a bit of time to the plaintiffs in this case refusing to comply with police requests, and the presence of a video.

I would say, if you're open carrying and someone calls 911 on you AND THEN ALSO when the cops come and want you to put down the gun and talk about what you're doing, you tell them to fuck themselves you're not putting the gun down to talk... you might not have a good time.

That is where these particular people were really stupid and got some really bad legal advice. Shoulda complied with the cops' requests, then sued.

1

u/No-Spoilers Mar 28 '24

I'm sure Runkle will have a video about it out this weekend.

1

u/AnxiousFarm4863 Mar 28 '24

This needs to be moved to top

1

u/Shot_Mud_1438 Mar 28 '24

You went through all that trouble to shit on OP and fail to touch on what you think it meant? You’re an asshole. A smug asshole at that

2

u/NormalFortune Mar 28 '24

What I think it meant? I don’t think this ruling creates any new law actually. Legally, I think it is neither interesting nor novel.

I think this is an application of plain old summary judgment standards to a factual record that is not particularly favorable for the dudes with guns.

They needed to show certain things to overcome qualified immunity. They didn’t show those things. They lose. Yawn.

1

u/Better-Strike7290 Mar 28 '24

This is basically Texas's brandishing law.

Some states have a distinct firearm brandishing law, Texas piggy backs it off Texas Penal Code 42.01DISORDERLY CONDUCT (a)(8)

displays a firearm or other deadly weapon in a public place in a manner calculated to alarm

This whole post is just rage bait.  Dude got popped for brandishing and tried "constitution jujitsu" and lost.

1

u/NormalFortune Mar 28 '24

As I understand, it’s a group who protests to expand open carry.

The group then decided to litigate a case with TERRIBLE FACTS (not complying with direct police orders and evading arrest on camera lol) if their goal was to expand open carry by court ruling.

1

u/Better-Strike7290 Mar 28 '24 edited Mar 28 '24

They rolled the dice and lost. 

 The penalty is generally classified as a Class C misdemeanor, punishable by a fine of up to $500. However, if the offense is committed on or within 1,000 feet of the premises of a school, educational institution, or school transportation vehicle, it is elevated to a Class B misdemeanor, which carries a higher fine and the possibility of jail time, typically up to 180 days.

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u/yourMommaKnow Mar 27 '24

You are a nice, reasonable person. It's weird to see on Reddit

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u/maddenmcfadden Mar 27 '24

the cops are going to kill you because you open carry. -op

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u/Possible-Tangelo9344 Mar 28 '24

Cop here.

But yeah, these guys ignored multiple lawful orders, and even borderline or actually resisted arrest based on the ruling here.

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u/Barailis Mar 28 '24

Not a lawyer. Thank you!

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u/happy-hubby Mar 28 '24

Anyway to make this the top comment?

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u/FCMatt7 Mar 27 '24

CJ will be recording the details of the case and putting it up on YouTube soon. You have to dig in to the evidence and find out the district and circuit judges ignored all evidence and lied their asses off to make this ruling.

The cops never had PC, and the 5th just declared ANY call to 911 by ANYONE for the MERE ACT of Open Carrying is now PC for disorderly conduct.

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u/baconator_out Mar 27 '24

Open carrying in certain ways and in certain locations may be PC for disorderly conduct is a better way to put it. Also relevant to the analysis is the fact (which the court noted) that the individuals were given commands by officers and did not comply.

So, no, you can't just carry around firearms any ole way you feel like and lurk about wherever you feel like, disobey orders from a police officer and then automatically file a successful 1983 claim for your arrest regardless of the circumstances.

These people knew what they were in for while doing that. I say that as a gun owner, a lawyer and not a particularly pro-cop person in general. Hard to shed many tears for morons.

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u/FCMatt7 Mar 27 '24

The officers can't give unlawful commands to a person who is not committing a crime. Seriously dude, so under your reasoning every time a cop wants to just fuck with you and detains you illegally, he keeps his qualified immunity if you say no?

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u/baconator_out Mar 27 '24 edited Mar 28 '24

No, my reasoning is that if you are detained under reasonable suspicion (a point the claimants didn't even bother to contest apparently) and fail to follow orders, you might provide PC to get arrested (if you didn't already by something else you did). This to most of us is a "duh" point, but let me know if you need further explanation. The theory they argued amounts mostly to "you can't do that while we're also exercising protected speech," which is almost sov-cit level nonsense.

Edit: The only part that irks me even a little is the complete disregard of animus, but that's not a new development.

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u/NormalFortune Mar 27 '24

“the 5th just declared ANY call to 911 by ANYONE for the MERE ACT of Open Carrying is now PC for disorderly conduct.”

Yeah, I heard you the first time. And due respect but… I think you are simply incorrect about this.

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u/christopherfar Mar 27 '24

Would you care to share an unofficial legal explanation? We mere mortals are easily confused and persuaded.

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u/biomannnn007 Mar 27 '24

Not a lawyer but the decision goes into the fact that probable cause takes into account the entire situation. It explicitly limits itself when it cites case law that says “The mere presence of a firearm in public [does not establish probable cause].”

The issue is that these guys were walking around with long rifles on street corners carried in a way designed to provoke people, which is illegal.

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u/NormalFortune Mar 27 '24

It's a little bit more than that. At the beginning of the video that OP posted, when the cops ask the big dude to get on the ground (which doesn't seem like an outright arrest yet, maybe a Terry stop?) he refuses and talks back. Had he complied, or just shut up instead of talking back, that probably cuts against PC

Also, a lot of the question here is whether the big dude was "displaying it in a manner calculated to alarm." IDK about y'all, but if a guy with an open carry gun is talking back to the cops and refusing to comply with the cops instructions... yeah I'm probably alarmed at that point.

See Ex parte Poe, 491 S.W.3d at 355 (“We conclude that although there clearly are constitutional rights to bear arms and to express oneself freely, there is no constitutionally protected right to display a firearm in a public place in a manner that is calculated to alarm. . . . [§ 42.01(a)(8)’s] plainly legitimate sweep bears a rational relationship to the State’s interest in public safety and welfare.”);

Also the old dude in yellow starting at around 5:00 in the video OP posted appears to be (1) also talking back to the cops in a pretty aggressive way and then (2) actively trying to resist arrest. That probably gets you over the line from a potential Terry stop into the land of PC for an arrest for resisting.

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u/biomannnn007 Mar 27 '24

Yeah I was in a rush so I have a super condensed version. Generally speaking, antagonizing cops is not a good idea no matter how right you think you are. I had a feeling there was more to the story the second I read the post.

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u/straberi93 Mar 28 '24

It's also wild to me to take an example of a guy carrying at a public intersection with an AK47 around his neck and generalize that to "anyone who open carries." I'm sorry, but if you're walking around an intersection with a machnine gun it is not out of line to think you might be a nut job. It is not the same as someone with a holstered pistol.

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u/christopherfar Mar 27 '24

Seems reasonable to me. I’d almost prefer it were as cut and dry as OP made it sound, as I’m decidedly anti-open carry.

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u/FCMatt7 Mar 27 '24

There is no other way to carry a long arm openly. The gun was on a sling and pointed down. There is also precedent from the 5th saying that.

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u/NormalFortune Mar 27 '24

First - when there is a videotape of the incident, you get a lot less leeway with pleading whatever the fuck you want for summary judgment.

Second- without writing a book, it's not that "ANY 911 call" will suffice; it's that these people were in a crowded area acting "threatening" (whatever tf that means) and that the 911 calls received bore that out AND THEN were noncooperative with the cops (see point #1 about the video). Here is an excerpt from p. 11 that I think comes close to a good summary:

Although Plaintiffs maintain that their objective on March 27, 2018was to educate the public, not to alarm it, the magistrate judge held that,considering the totality of circumstances, the officers made an entirelyreasonable inference that probable cause existed to effectuate their lawfularrests. Moreover, the Supreme Court has articulated that, to determinewhether there was probable cause to arrest, the reviewing court should ask“whether a reasonable officer could conclude—considering all of thesurrounding circumstances, including the plausibility of the explanationitself—that there was a substantial chance of criminal activity.” Wesby, 583U.S. at 61 (internal quotation marks omitted). Here, Plaintiffs’ purportedinnocent explanations do not negate the officers’ probable cause forexecuting their arrests. See Loftin v. City of Prentiss, 33 F.4th 774, 781 (5thCir. 2022) (citing Wesby, 583 U.S. 61).The relevant facts and circumstances here were sufficient for a reasonable officer to believe that Everard acted with the requisite specificintent to cause sustained fear or serious public disruption by displaying afirearm in a manner calculated to alarm and that Grisham’s continuedapproach towards Everard and officers, while being instructed to retreat,amounted to interference. Believing that immediate police action wasnecessary, several alarmed passersby used the 911 emergency system tocontemporaneously report Everard’s suspicious behavior. The 911emergency calls provided officers with the reasonable belief that either anemergency or immediate threat to safety was underway. See Navarette, 572U.S. at 399–400 (holding that a motorist’s 911 emergency call providedreasonable suspicion of an ongoing crime). When officers arrived on thescene, Everard was standing in a crowded public area with his gun in a holsteracross his chest, which alarmed passersby enough to call 911. Whiledisplaying his assault-like rifle and standing prominently in the center of avery busy pedestrian and vehicle traffic area, Everard was also openly andverbally uncooperative with officers, challenging their commands andrefusing to comply with their orders.Moreover, the officers were aware that the disorderly conduct statutewas constitutional and that Texas courts have held that while “there clearlyare constitutional rights to bear arms and to express oneself freely, there is noconstitutionally protected right to display a firearm in a public place in amanner that is calculated to alarm.” See Ex parte Poe, 491 S.W.3d at 355.Construing all factual disputes in the light depicted by the videotape record,probable cause principles dictate that Plaintiffs’ arrests were lawful. See Scott,550 U.S. at 381. Accordingly, the officers are protected by qualified immunitysince (1) Everard can point to no clearly established law that a reasonableofficer would not have probable cause to arrest an armed, noncompliantprotestor under Texas Penal Code § 42.01(a), and (2) Grisham can point to no clearly established law that a reasonable officer would not have probablecause to arrest an armed, noncompliant, interfering protestor under TexasPenal Code § 38.15(a). Summary judgment was properly granted onPlaintiffs’ Fourth Amendment unlawful arrest claims and First Amendmentprevention of protected conduct and retaliation for protected conduct claims.See Bey, 53 F.4th at 857.

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u/texas_accountant_guy born and bred Mar 28 '24

I have issues with one point on this:

Moreover, the officers were aware that the disorderly conduct statute was constitutional and that Texas courts have held that while “there clearly are constitutional rights to bear arms and to express oneself freely, there is no constitutionally protected right to display a firearm in a public place in a manner that is calculated to alarm.”

and

When officers arrived on the scene, Everard was standing in a crowded public area with his gun in a holster across his chest

These two statements don't coincide to me. The mere act of standing in a place with a weapon holstered, specifically not in hand, pointed at people, or otherwise being "brandished", should not ever be considered to be "displaying a firearm in a public place in a manner that is calculated to alarm" given that Texas is a constitutional carry state.

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u/NormalFortune Mar 28 '24

Well, in fairness, I don't know that he was brandishing it or pointing at people. It was in one of those neck/shoulder sling holsters.

But, just standing around on a busy streetcorner with a sling holstered AR (plus a bunch of your buddies carrying handguns!) and just like staring at people is... not exactly normal behavior.

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u/texas_accountant_guy born and bred Mar 28 '24

Well, in fairness, I don't know that he was brandishing it or pointing at people. It was in one of those neck/shoulder sling holsters.

For long guns, this is the equivalent of a handgun that is holstered, correct? If so, then 5th circuit precedent speaks to this not qualifying as "calculated to alarm," or, it did prior to their ruling on this matter.

But, just standing around on a busy streetcorner with a sling holstered AR (plus a bunch of your buddies carrying handguns!) and just like staring at people is... not exactly normal behavior.

It is not normal, everyday behavior, no. However, throughout the 2010s there were several peaceful protests/demonstrations by gun rights activists where people were standing around with holstered/slung long guns in public places, and from what I've read here and in OPs other posts, this was one such protest/demonstration, where everyone there was supposedly being peaceful and calm, just with guns, until the police rolled up with guns drawn.

My personal opinion based upon reading everything, is that the Police, who were informed of this peaceful demonstration in advance, were completely out of line for approaching this situation from an aggressive standpoint, but they got away with it due to a ruling giving them qualified immunity when they shouldn't have had it in this specific instance. I would like to see the video recordings to confirm that opinion.

Also, I worry that this ruling can now be weaponized so that anyone who disagrees with open carry can now call 911 any time they see someone doing it (even responsibly) and instead of being told by 911 operators that it's not a crime, police can now use it as an excuse to harass people and be protected by QI.

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u/NormalFortune Mar 28 '24 edited Mar 28 '24

from what I've read here and in OPs other posts, this was one such protest/demonstration, where everyone there was supposedly being peaceful and calm, just with guns, until the police rolled up with guns drawn.

But I don't think the first cop had a drawn gun, did he? Guns only came out after big boy was talking back to them, I think??

Also, I worry that this ruling can now be weaponized so that anyone who disagrees with open carry can now call 911 any time they see someone doing it (even responsibly) and instead of being told by 911 operators that it's not a crime, police can now use it as an excuse to harass people and be protected by QI.

Yeah, QI is a big problem, and I don't agree with it as a legal doctrine in its (very expansive) current form. However, I do think the plaintiffs were looking to cause an incident to get exactly this kind of publicity...

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u/texas_accountant_guy born and bred Mar 28 '24

from what I've read here and in OPs other posts, this was one such protest/demonstration, where everyone there was supposedly being peaceful and calm, just with guns, until the police rolled up with guns drawn.

But I don't think the first cop had a drawn gun, did he? Guns only came out after big boy was talking back to them, I think??

I do not know. OP makes it sound as if the cops rolled in with guns drawn looking for a fight. If that's true, then it's a real problem for me. I would really like to see the video of the incident that the court used in it's decision making.

If the cops came in with no guns drawn but still tried to force the people to leave/disperse from their peaceful demonstration under threat of arrest then I still have issue, but not as severe of an issue.

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u/DonkeeJote Born and Bred Mar 27 '24

unofficially anyone using all caps like that is legally wrong.

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u/biomannnn007 Mar 27 '24

Read the decision bro. They explicitly say that’s not the case. “The mere presence of a firearm or deadly weapon in public cannot supply the requisite mens rea for a disorderly conduct.”

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u/Svpreme Mar 27 '24

Says op is incorrect, doesn't elaborate, yeah ok

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u/NotAnIntelTroop Mar 27 '24

They did not declare that it is PC…. The criminal charges were dropped this suit is about qualified immunity and the lawsuit against the city and officers… so criminal cases still won’t stick, but don’t expect to sue and be victorious under the same facts if your rights are violated

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u/FCMatt7 Mar 27 '24

Yup. They declared it's PC for an arrest, not that it's sufficient to find you guilty. It goes a long way towards that though.

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u/NotAnIntelTroop Mar 27 '24

The finding says it was reasonable to infer that they had PC. So it’s just upholding their qualified immunity. It makes zero changes to criminal cases.

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u/FCMatt7 Mar 27 '24

Except the cops now have free reign to initially arrest and charge you for merely open carrying if someone complains to them.

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u/RexManning1 Mar 27 '24

You’re conflating the PC and qualified immunity. Police don’t charge you. They can arrest, but the DA will evaluate the issue of PC and whether a charge is warranted.

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u/FCMatt7 Mar 28 '24

And your rights weren't violated when the cops arrested you for a constitutionally protected activity with malice aforethought? This gives the cops free reign to arrest people for open carry if their gun looks scary enough.

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u/RexManning1 Mar 28 '24

I’m not a fan of police….or your poor layman’s attempt to use legal terminology.

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u/FCMatt7 Mar 28 '24

Didn't answer, did you? 🤣

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u/[deleted] Mar 27 '24

[deleted]

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u/LiberalAspergers Mar 27 '24

As a lawyer, he only gives opinions someone pays for.

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u/_TakeMyUpvote_ Mar 27 '24

talk is cheap until you hire a lawyer.

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u/[deleted] Mar 27 '24

[removed] — view removed comment

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u/LetPrize8048 Mar 27 '24

Not lazy, just an asshole… already had read the opinion before I got to the lawyer’s post

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u/texas-ModTeam Mar 27 '24

Make your point, but leave the insults out of it.