Sept 20-21, 2018 I attended the Texas Bar CLE (continuing legal education) course held in San Antonio, Texas. They put a course on this topic on each year, at different locations around the state, and I’ve attended the past few years. They always have top tier national speakers covering recent content. By attending I picked up another 12 hours of professional development
You don’t have to be a lawyer to attend. A handful of firearms trainers attended, along with a mix of law enforcement agents, judges and lawyers. From the reaction of the audience to various statements made by presenters (and the number of untucked shirts and jackets being worn), it was clear that most attending were pro-gun. If anyone was there representing any of the gun control groups, they did not advertise that fact.
The course comes with a detailed briefing book with long articles written by each presenter, and it’s possible to buy the class notes even if you don’t attend. Check the Texas Bar CLE website or contact them for details.
I am not a lawyer and these summaries should not be considered legal advice.
Part 1 of the quick summaries of the presentations I heard, with key points:
Stephen Halbrook is a nationally known constitutional lawyer specializing in 2nd amendment cases. He covered 5 main topics:
- The “Heller III” case – which resulted in several parts of the DC carry permit regulations being struck down
- The New York State Rifle and Pistol Association case – which upheld assault weapon and magazine bans
- Multiple cases that addressed aspects of “carrying outside the home”. There are many and inconsistent rulings from lower courts as to whether the 2nd amendment ‘keep and bear arms’ defines a right to carry outside the home, concealed or open. If the current 4-4 state of the Supreme Court can be tipped to 5-4 in favor of gun rights, there is hope that a SCOTUS ruling would clearly affirm the “outside the home” carry definition.
- Applied Challenges to Legal Disabilities – mental commitments and criminal convictions
- Status of the Supreme Court – Kavanaugh’s record on 2nd amendment and what it could mean if he is appointed as a justice
Law Enforcement Perspective
Interesting stats: less than 1% of FFL licenses get revoked each year. There’s been a 45% increase in thefts from gun dealers in the past year, which is a major concern. There is a new “FFL Alert” text message system that can send a text message to all FFL dealers in a county, after any gun dealer in that county is robbed or burglarized. There are 300 new assistant US attorney’s dedicated to violent crime prosecution — specifically high rate offenders and crews. The movement of guns from Texas to Mexico remains a big issue, particularly straw purchases and rogue employees of gun dealers. One case study involving a rogue employee of a Houston-area store that sold guns that were used in a major gun battle in Mexico (43 dead) was presented.
Key Issues in Home Defense
Massad Ayoob chaired a panel that included multiple lawyers that worked on a Texas home defense case in which the homeowner’s use of deadly force was no-billed by the grand jury, and was later sued in civil court by his attacker’s widow.
As part of this session, Sabrina Karels presented an overview of homeowner insurance coverage. In Texas a standard homeowner policy does not include coverage for self-defense cases. In the case presented during the panel, the homeowner ended up with a final legal bill of $130K+ for the criminal and civil proceedings — being no-billed on criminal charges and winning the civil case. His attempt to sue his homeowner’s insurance company to recover legal costs failed.
The lesson learned from this panel was: if you are armed for self-defense and don’t have some form of self-defense specific insurance or a membership in the Armed Citizens Legal Defense Network, you need to make that your highest spending priority. It’s much more important than a new gun, the deer lease, practice ammo, or even training.
Firearms in the Law Office
The lunchtime presentation was on “firearms in the law office”. I winced repeatedly during this talk, as the presenter (former law enforcement), advocated for many practices I do not recommend, such as:
Leaving loaded guns of varying makes and calibers unsecured in drawers in multiple rooms of the law office.
Supposedly the point of this was to make the guns accessible to any member of the office staff, should they be needed. But it also results in loaded guns being easy to steal, for any burglar that breaks in, and accessible to clients, cleaning staff, and other unauthorized persons. A much better solution would simply be for all staff to carry the concealed handgun they are most proficient with, so that gun is immediately accessible to them no matter where they are.
Having a variety of guns only makes the situation worse. It’s the sort of decision someone that doesn’t shoot very well would make, not understanding that equipment does make a difference in proficiency. Proficiency can be the difference between life and death. Assuming the “gun in every room” approach was worth doing, having the same kind of gun, in the same caliber, would make more sense — particularly if the gun chosen was one with minimal controls and a relatively easy trigger pull (aka a striker fired 9mm).
Planning “using a cheap Rossi .38” as the primary defense gun, out of concern that using “the nice Kimber” would result in it being tied up as evidence.
Again this statement implies that the person is unconcerned about proficiency (or capacity) having any effect on the outcome, buying into the “any gun will do” mindset. In running my “small gun” classes over the past 5 years, where students have to shoot their preferred gun and their pocket gun on the same drill, the widest performance gap occurs between those that have a tuned up 1911 as their primary, and a .38 S&W revolver as their pocket gun. The Rossi, likely to have an even longer, grittier trigger than any S&W, is likely to underperform even more in the hands of a shooter used to the very short, crisp trigger of a 1911. My guess is that the presenter has never compared his own shooting skill on the same drill with the two guns. Dunning-Kruger is a powerful drug and convinces many that they will shoot “good enough” should the need arise. Reality is that for most that believe that comforting affirmation, skill, when tested, turns out to be far below realistic standards for speed and accuracy.
Immigration Issues in Gun Laws
This talk focused on issues related to legal immigrants and gaps between state and Federal laws. While it’s possible for foreign nationals on the right type of visa to own guns and even qualify for a Texas carry permit, those in that situation should absolutely locate a lawyer very fluent in this topic to ensure all is in order before proceeding. As with every other aspect of advice, polling random strangers and choosing the most frequently posted answer is not a good way to get the best qualified answer.
Gun Trusts & Estates with Firearms
Takeaways from this session? If you have NFA items, and you want to allow family members access to those items when you are not present, the item needs to be on a gun trust, and they need to be on the trust – even spouses. Make sure your wishes for what is to be done with your guns is clearly stated in your will (which family member gets what). Failure to plan for this – particularly if you have no direct family that would want to inherit the guns) – can be a big headache for those dealing with your affairs after you are gone.
Federal Case Law Update
David Kopel and Joseph Greenlee presented a summary of recent firearms cases in the 9th, 2nd, 5th, 6th, 8th, 10th and 11th circuit courts in the past year. Unfortunately, most of these cases resolved on the anti-gun side.
- California cannot confiscate “high capacity” magazines
- Handgun ban in Mariana islands cannot stand
- County ban on gun stores upheld
- No right to concealed carry
- Open carry is individual right not limited to security officers
- Stricter rules on police use of force did not violate officers 2nd amendment rights
- NYC may prohibit licensed handgun owners from taking handguns out of the city
- Dishonorable discharge status can make someone prohibited to own firearm
- FFL cannot sell handguns to citizens of adjoining states
- “Fiasco for NFA plaintiff with unrealistic claims”
- Burden of proof for self defense may be placed on defendant
- Gun ban for domestic violence misdemeanor upheld
- No right to sell guns to felons
- 8th circuit – suppressors and short barreled rights are not indisputably part of 2nd amendment right
- 10th circuit – qualified immunity for police in arrest for open carry
- 11th circuit – do not engage in business of selling firearms without a license, including online
More to follow in part 2…