By Kim Hilsenbeck
Walking along Goforth Road in Buda last week, two young adults carrying rifles on their backs created quite a stir. But the aftermath may be even more controversial.
Part of a group call Open Carry Texas, which, on the internet, seems to be associated with Opencarry.org, the two young adults were trying to make a statement, videotaping their interaction with police and posting it on YouTube.
What statement? That, by law, they are allowed to openly carry long guns in Texas.
The video interaction between Buda police and the weapons-carriers included lessons for all involved.
Last week, Buda Police Officer Alex Fernandez, who arrived on scene at 5:27 p.m. to investigate a call for suspicious circumstances, found himself the target of a nationwide movement to test Texas's open carry laws. The individuals, one male, one female, videotaped the interaction with the officer and a Hays County Constable who arrived as backup.
Buda Police Chief Bo Kidd confirmed that he received a call from a concerned citizen that there were two people walking along Goforth Road with long guns strapped to their back. In addition, a call was made to the Hays County Sheriff''s 911 center about the guns.
As the scene opened up, as shown on the video, Fernandez approached the individuals and initiated the conversation by asking for their identification.
You got a driver's license or ID? he asked.
The male said, Um, I choose not to present that to you, officer.
Fernandez replied, Just to let you know, you have every right to do that, you also have one thing let me tell you right now, if you fail to identify to a police officer, you can also get arrested for that, OK? Do you have a DL or ID?
The volley went on for the next several minutes, with the officer asking for ID and the male saying he did not need to provide it unless he was being accused of committing a crime.
Texas is an open carry state, which means it is legal to carry a long gun, i.e., a shotgun or rifle, out in the open in public spaces.
The law also says that a peace officer does not have the right to ask for an ID unless the person is suspected of committing, or is about to commit, a crime.
In the video, the young man with the gun asked questions of Fernandez such as, Have I done anything wrong, officer? and Do you suspect me of being a felon, officer?
At one point, the male asked if he was being detained and Fernandez told him he was.
Kidd said in reviewing the situation and the video, the officer did not have enough information to determine if a detention was appropriate.
We should have requested more information from dispatch, he said.
Under state law, Kidd said while it is legal to carry a long gun, officers need to determine if those who choose to exert their rights are doing so in a manner that doesn't violate and state law or city ordinance.
For an officer to detain someone, Kidd said, they must have reasonable suspicion that a crime has been committed or is about to be committed. He said there are two laws Buda officers have to work with in regards to displaying firearms violations. State law requires that an actor �displays a firearm or other deadly weapon in a public place in a manner calculated to alarm� for peace officers to detain the person.
Our [Buda] city ordinance requires that a person displays a firearm in a threatening manner or in such a manner as to tend to cause the victim to reasonably believe that he or she is in danger of imminent bodily harm, Kidd said.
Walking along the road with guns displayed, while uncommon and perhaps alarming to some, does not necessarily meet the criteria under either law.
The video made by the two individuals in Buda, along with dozens of others in similar situations, is on You Tube, along with sometimes hundreds of comments from those who view them.
In many cases, commentary against the police, including the Buda officer, uses phrases such as ignorant, moron and liar.
According to Kidd, Fernandez didn't handle the case as well as he could have, yet believes the individuals were trying to provoke a police response.
There is a coordinated effort nationwide by second amendment groups such as Open Carry Texas, Kidd said. They say they're doing it as a means to educate people but it's in a calculated manner.
Kidd, a firm supporter of the second amendment right to bear arms, thinks the groups are using tactics that may backfire.
I'm a second amendment guy, he said. But they are hurting their cause by alarming people.
The July 9 incident in Buda is one of dozens of videos of second amendment supporters who walk along roads with rifles or shotguns slung on their backs and are confronted by law enforcement officers who received calls from concerned citizens saying people are walking around with guns. Inevitably, law enforcement officers show up after getting called to investigate.
I understand what they are promoting (2nd Amendment/Right to Bear Arms), but I think most reasonable people would disagree with the manner in which they are going about this,� Kidd said.
One poster wrote, The cop says his reasoning for detaining them is suspicious activity. Brown v. Texas, 443 U.S. 47 (1979) ruled that suspicious activity does not satisfy the requirement to detain and demand ID. Instead the officer must suspect you of a specific crime, which he can articulate and substantiate with objective facts. The exercise of a right cannot be converted into reasonable suspicion of a crime.
Still Kidd said he thought the manner in which the confrontation took place would have worked better as an educational experience if the protesters had simply let his office know they were going to be walking around with long guns.
That way, Kidd said, the dispatcher could inform worried callers about the situation.
If their goal is to educate or promote the right to carry there are more sensible ways to do so Consider other options such as simply cooperating with providing identification to the officer. Then any additional calls that came in we could advise the caller that we had checked on the individuals and they were legal in their actions, he said.
Or, they go into their local law enforcement office and advise them that they would be promoting the right to carry in an area prior not that they have to but rather, to avoid problems because they will likely draw attention and concern from people if they are carrying rifles through subdivisions or near businesses. I believe their tactics will likely result in more gun control not less.
Kyle Police Chief Jeff Barnett said that is what happened about a year ago in his jurisdiction.
We had an individual who wanted to make a purposeful walk with a firearm down Center Street. But he called us ahead of time to let us know what he was going to do, he said. And while that was not required, we appreciated that the individual called in advance. That way, emergency resources are not tied up.
Barnett agreed with Kidd that dispatch staff should get as much information as possible from those who call in to report suspicious activity, such as, is the person observing illegal activity?
Both chiefs support the second amendment.
Law abiding citizens of sound mind, legal age and no criminal background should have every right to carry firearms, Barnett said.
But when individuals are purposefully being evasive or calculating, he said, it makes officers wonder what these people are up to when they get calls and show up to investigate.
In the long run, I think they'l hurt their cause, Barnett said.
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