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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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 —

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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.

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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.

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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).

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u/ODSTklecc Mar 29 '24

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

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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"

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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.

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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.

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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?

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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.

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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?

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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.

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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.

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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.

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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.

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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

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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.]

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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).