Texas Statute Banning "Criminal Street Gang" Members from Carrying Handguns in Their Cars or Boats

|The Volokh Conspiracy |

From Becker v. State, decided yesterday by the Texas Court of Appeals, in an opinion by Chief Justice Brian Quinn:

It is a crime for a member of a "criminal street gang" to carry a handgun while in a car or boat, if he owns or controls those vehicles. Apparently, the same cannot be said of that same "criminal street gang" member carrying it while walking, riding a bike, or even riding a horse. Nor is it true, under the expressed wording of the statute, if he carries the firearm while riding in a car or boat owned and controlled by someone else, including a fellow "criminal street gang" member.

How about riding on a motorcycle? The statute refers to carrying the weapon "in a motor vehicle." Like riding Mother Nature's horse, riding a two-wheeled iron one involves being atop or "on" it. Of course, one may scoff at drawing such hyper technical distinctions; but, do not such hyper technical distinctions already exist in a statute that criminalizes possession of a handgun when driving his own car but not while being driven in another person's car or while simply walking on a street.

Let us try another, shall we? What if the State licensed that supposed "criminal street gang" member to carry the firearm? In so licensing the person, logic suggests that it approved of his carrying the weapon. Though not a criminal for purposes of securing a license, the person apparently becomes one simply by sitting in his own car or boat with the item he was licensed to carry.

{[But] the statute underlying his prosecution lies within Chapter 46, § 46.02 of the Penal Code. Elsewhere in the very same chapter of the very same Code lies another provision. It provides that "[s]ection 46.02 does not apply to a person who … is carrying … [both] … a license issued under subchapter H, Chapter 411, Government Code, to carry a handgun … and … a handgun … in a concealed manner … or … in a shoulder or belt holster." Id. § 46.15(b)(6)(A), (B) (emphasis added). The potential impact of the latter statute upon the State's prosecution of Becker for violating a subpart of § 46.02 is apparent. If § 46.15(b)(6) means what it says, his having a license to carry may well remove him from the teeth of § 46.02(a-1).}

Those are a few of the mystifying mind teasers revolving around this appeal from an order denying Ashely Becker's pretrial writs of habeas corpus. Yet, Becker was not "in" a motor vehicle but on his motorcycle. Furthermore, his purported status as a "criminal street gang" member allegedly arose upon joining the Bandidos Motorcycle Club. He argued below and here that focusing merely on his membership in the purported "criminal street gang" to prosecute him for carrying a handgun that the State licensed him to carry violated a myriad of his constitutional rights. The trial court disagreed and denied both his facial and "as applied" constitutional attacks levied against § 46.02(a-1) of the Texas Penal Code. We have been afforded the opportunity to consider that decision but forgo it at this time….

[The facts of the case:] Becker and [another motorcycle rider] wore vests depicting membership in the Bandidos. The latter organization was "confirmed as an 'Outlaw Motorcycle Gang,'" according to the deputy. And, upon approaching "both motorcyclists," he spoke first with Becker who "handed [the deputy] a Texas Driver's License and a Texas License to Carry" a concealed weapon. Upon seeing the license to carry, the deputy asked Becker if he (Becker) possessed a handgun. Becker "advised he had his gun on his hip." … Becker's carrying the weapon allegedly violated § 46.02(a-1)

The court concluded, however, that under Texas appellate procedure it couldn't reach these issues on a pretrial writ of habeas corpus; presumably they will need to be raised in various motions before the trial court, and then perhaps in an appeal after a trial.

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  1. I would suspect actual membership in (or on) a given gang would need a bit more than a casually worn garment. As I suspect an actual membership list would be a bit difficult to obtains.
    So by extension, anyone wearing a BLM garment of any description is guilty of riot, arson, rape, and murder?

    1. +

      Or someone wearing a MAGA hat is …. whatever one might imagine.

    2. Ummm, if you value your life, you don’t want to be seen wearing the colors of a club that you don’t belong to, and even then the club owns them, not you.

      It is not a “casually worn garment”, if they see you with it, they will kill you. There and then, end of discussion. They have some very scary people, most of whom have criminal records which is why I don’t see “felon in possession” covering this.

      See: https://www.youtube.com/watch?v=fs-_7EIxBik
      “Who would claim to be that, who was not?”

      1. My understanding is that wearing the wrong colors hasn’t been a thing for about 3 decades.

        1. “My understanding is that wearing the wrong colors hasn’t been a thing for about 3 decades.”

          Interesting hypothesis, Mr. Science. What are you going to do with it?

          1. Perhaps the lack of reports is a clue.

            Or the general fall in violent crime.

            Don’t be so contrarian you start arguing real life is the Death Wish series.

          1. 2015 Waco shootout

            According to non-police witnesses, the police started it and 5 years later there are zero convictions of any of the “gang members” that were there.

            1. Maybe so, but weren’t three high-ranking Bandidos arrested by the FBI and convicted of stuff like racketeering, conspiracy, murder, extortion and drug dealing as a result of it?

        2. According to the LA Times, LAPD reports that there are 5-to-10 shootings each year where the reason is “gang colors”, resulting in 2 or 3 deaths.
          Again, according to the LA Times, this is dramatic drop from the late 80s and early 90s, where the rate was 5 times higher…

          But I would suggest that when more than 1% of the shootings and homicides are because of the clothing being worn, it isn’t “not a thing”.

      2. Depends on the gang and the area. Some bicycle gangs make quite a good (and legitimate) profit licensing clothing with their logo or colors. You can buy t-shirts with famous biker club colors at any county fair.

        Regardless, wearing gang clothing or even being in the gang is not a crime by itself. Restricting constitutional rights based on a legal activity is pretty obviously wrong.

        1. Just as a general observation, in the context of motorcycle gangs ‘colors’ is a term of art referring to the patches etc on their jackets/vests. E.g. This garment and the patches themselves are referred to as the colors ….

          Just to make things confusing, gangs also have colors in the usual sense; one might use red and white, another red and yellow, etc. Ant the T shirts they sell to random people will be red and yellow or whatever, but they won’t have images of the actual patch etc.

          1. My bad — I presumed everyone knew this.
            See: https://en.wikipedia.org/wiki/Bandidos_Motorcycle_Club#/media/File:Bandidos_Motorcycle_Club_logo.jpg

            You wear *that* and they will kill you.

  2. Side note: It’s not “the Texas Court of Appeals.” It was the Seventh District Court of Appeals in Texas, one of 14 intermediate appellate courts between the trial courts and the high court (which is either the Texas Supreme Court or the Texas Court of Criminal Appeals, depending).

    1. I appreciate that this is the technical description, but for a national audience, I think Texas Court of Appeals is probably sufficient.

      1. It’s not a technicality. You don’t have to give the full title, but “a Texas appellate court” would be a better description. Saying THE Texas Court of Appeals implies that it’s a statewide court and gives the ruling more significance than it otherwise has. You don’t describe any random federal district court as “the United States Court.” It’s a lower-level court with a limited amount of jurisdiction, and its opinions are far less important than a SCOTUS decision.

  3. “A deputy sheriff saw Becker and another atop their motorcycles while stopped on the roadway. They then drove away but at a speed much slower than the posted limit. Both were deemed infractions of the traffic laws and resulted in the deputy stopping them. “

    Really….

    Grounds to follow them, yes, but unless there was a posted minimum speed or some other statue (e.g. impeding traffic), neither of which is mentioned, what possible “infraction” is there. Likewise with stopping on (as opposed to in) the road, maybe they wanted to make a cell phone call.

    Whatever happened to _Prouse v. Delaware_?
    Well, I know, but I am making a point here….

    NB: The officer could have stopped them to inquire if they were having mechanical difficulties with one of the bikes and if he could assist them in any way — but that’s not what it says he did.

    1. Stopping on the roadway is a crime in a lot of places. It’s incredibly dangerous. If you just want to make a call, you pull OFF the roadway.

      1. Good point, and the record’s not clear — around here, “in” is what you are talking about, i.e. “in a travel lane” while “on” includes the right-of-way, i.e. shoulder.

  4. Prof Volokh, this is the same issue I raised yesterday and I will send you the pages from the Cops-R-Us book when I find it in my archival files.

    If I’m not mistaken, a writ of habeas corpus is usually sought when someone is in custody, and the decision sorta suggests that in the decision, i.e. “go free.” An interesting question would be if he was denied bail.

    And I love the part where the statute doesn’t apply if the weapon is in a holster and he has a CCW — and the state saying that that language doesn’t mean what it says. And the related due process issues of the state issuing him a license he wouldn’t be allowed to have, presuming the constitutionality of the 1% biker gun ban.

    But my point is this: He got arrested, likely is languishing in jail, will probably wind up paying $40K in legal fees to avoid prison and the best possible outcome is that he is released from custody.

    It’s not a right under these circumstances — he still was punished and made an example of — and other rational people will know that they, too, will be punished. QED it is not a right they can exercise.

    1. And even if he got bail, a bail bond is 10% and he doesn’t get that back even if he is found innocent. Nor does his arrest record disappear.

      Hence innocence is a distinction without a distinction — what happens to him will suck *less* than also serving time, but it still sucks.

  5. “mystifying mind teasers”

    If the statute is so hard to understand that even the court is mystified, then there is a serious Due Process problem, apart from any other issues.

    1. We still believe in due process?

      1. Yeah.
        In our nation there are daily cases all about it.

  6. The Texas definition of “member of a criminal street gang” might be found in Code of Criminal Procedure, Art. 67.054. (b) “Criminal information collected under this chapter relating to a criminal street gang.”
    The phrase is also used in several other places in the Texas legal codes, designating other acts gang members are prohibited from doing, or restrictions the law may place on them.
    Simply wearing a vest wouldn’t make someone a “member of a criminal street gang.”

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