Harris County DA Wants to Limit Firearms in Court

[Skiprr]

This isn't directed at CHLers in general, so I decided this section would be better than the one for CHL discussions. Magidson is, of course, a temp on the job, but I still don't like his stance:

http://www.chron.com/disp/story.mpl/front/5965737.html

AUSTIN — Harris County District Attorney Ken Magidson has asked the state's top lawyer if he can legally stop his assistants from taking handguns into courtrooms despite a new law removing most restrictions on where prosecutors with gun licenses can carry their weapons.

Magidson requires members of his staff, even those with concealed handgun licenses, to obtain his permission, as a condition of employment, before they can carry a firearm into a court.

He is seeking Attorney General Greg Abbott's opinion on whether he can continue his policy, despite a 2007 law that allows prosecutors with handgun licenses to pack their pistols anywhere except jails or prisons. They also are prohibited from carrying while intoxicated.

"While it may now be legal for a prosecutor to carry a licensed concealed handgun in a courtroom, I retain significant concerns with regard to the level of training that should be required in order to permit prosecutors to safely carry firearms in the volatile environment of a criminal courthouse," Magidson said in a letter to Abbott.

The letter, sent earlier this month, recently was posted on the attorney general's Web site.

Magidson said his predecessor, Chuck Rosenthal, enforced a formal written policy prohibiting prosecutors from taking firearms into courtrooms.

Although the Legislature changed the law, Magidson said he has continued to require his assistants to obtain his permission before taking handguns into court. He said he allows only prosecutors "who have demonstrated a high level of proficiency to a certified firearms instructor on my staff" to do so.

He is seeking Abbott's opinion because several of his assistants questioned the legality of his policy.

Magidson argued that the new changes don't restrict his ability, as an employer, to impose his own requirements on employees.

"The authority of an employer to restrict the carrying of licensed handguns on the premises under the employer's control is expressly recognized" in state law, Magidson said.

Rob Kepple, executive director of the Texas District and County Attorneys Association, said his group didn't seek the 2007 changes. He said as far as he knew they had become an issue only in Harris, Fort Bend and El Paso counties but didn't know how any disputes were resolved.

Fort Bend County District Attorney John Healey couldn't be reached Monday for comment.

Magidson allows prosecutors who have handgun licenses to carry their weapons in the district attorney's offices and unrestricted areas of county buildings.

[nitrogen]

Either nobody can carry, or everyone can carry.

[agbullet2k1]

Magidson argued that the new changes don't restrict his ability, as an employer, to impose his own requirements on employees.

Um, yeah, it does. You want to tell them if they can or cannot have a day off, that's fine. The legislature has left you with some leverage in conducting the day to day affairs of your office, but they still outrank you, and they can overrule you.

Prosecutors are explicitly mentioned in the law as able to carry. Think of the state as a bigger company than your puny little division. The legislature has defined company policy. Your methods are now in conflict with company policy. Prosecutors are employed by the district attorney, but nonetheless prosecutors. I'd like to know what other freerange prosecutors are out there, because according to the DA, they're the ones the legislature was talking about. Good thing I'm south of this idiot. I'm sorry for all the Houstonians that no doubt feel safer knowing this guy has his priorities straight in a high crime county.

I'm new to the state, and therefore don't know much about the Austin folks yet, so does anyone care to inform me how the AG might handle this?

[seamusTX]

Mr. Abbott is pretty solidly pro-RKBA.

Could this be the same Ken Magidson who is a prominent donor to the Harris County Republican Party?

- Jim

[HighVelocity]

Magidson said his predecessor, Chuck Rosenthal, enforced a formal written policy prohibiting prosecutors from taking firearms into courtrooms.

There it is, Magidson using Rosenthal's behavior as a guide. It's all downhill from there.

[Charles L. Cotton]

I'll start a separate thread on my lunch meeting with Pat Lycos, Republican candidate for Harris County District Attorney. Thankfully, Mr. Magidson will not be an issue in the election, but former Houston Police Dept. Chief C.O. Bradford will be!

Chas.

[bpet]

I guess I see a single problem with one of two root causes.

Either the legislature is made up of a bunch of incompetents to the point that they can't write a law clear enough for a lowly DA to understand, or Houston has a DA that is power crazed to the point that he refuses to abide by a law that most would consider clear and absolute.

Reminds me a lot of DC's take on the 2nd. Despite the fact that a law is written clearly enough to be understood by the vast majority of people, there simply must be a way to ignore it and do things the way you want. Most of the time, our legal system puts people with this attitude in jail.

Ok, I'll give the DA the benefit of a doubt and consider the fact that he may think he's trying to protect those of us that are unarmed in the court room. He must be thinking that a prosecutor could, while defending himself, miss his intended target and hit a member of the jury, the judge, or others in the courtroom. Hence his position on approving only those that pass muster as expert shots. By giving his permission based on marksmanship, he completely ignores the possibility of the BG taking a gun away from a prosecutor. Sounds like he needs to expand his authority to decide who carries and who doesn't based on combat qualifications and possibly holster configuration as well. While we're at it, maybe he should decide what bullet and/or caliber configuration should be allowed based on potential to ricochet or penetrate walls. His argument is intended to seem "reasonable" and constrained based on concern for safety of the innocent. As is usually the case, it fails the logic test.

I think a better approach would be to concede the legality of his prosecutors carrying in court and insure that his "employees" understand that use of their firearm is a last resort option that carries with it a potential for serious consequences. After all, isn't that the burden we all deal with when we carry?

[seamusTX]

Either the legislature is made up of a bunch of incompetents to the point that they can't write a law clear enough for a lowly DA to understand,

I don't know if I would describe the situation exactly that way, but they did pass this law:

GC §411.203. RIGHTS OF EMPLOYERS. This subchapter does not prevent or otherwise limit the right of a public or private employer to prohibit persons who are licensed under this subchapter from carrying a concealed handgun on the premises of the business.

This is apparently in conflict with PC §46.15, which allows DAs to carry on the same terms as LEOs.

I hope Mr. Abbott makes the right decision. If not, this issue may end up being litigated.

- Jim

[CompVest]

I don't see any reason prosecutors should be held to a higher lever of proficiency then the police or the anyone else that has the right to carry.

Does DA Ken Magidson pay them or does the County? If he isn't paying them I don't think he is their employer, boss maybe.

[bpet]

Either the legislature is made up of a bunch of incompetents to the point that they can't write a law clear enough for a lowly DA to understand,

I don't know if I would describe the situation exactly that way, but they did pass this law:

GC §411.203. RIGHTS OF EMPLOYERS. This subchapter does not prevent or otherwise limit the right of a public or private employer to prohibit persons who are licensed under this subchapter from carrying a concealed handgun on the premises of the business.

This is apparently in conflict with PC §46.15, which allows DAs to carry on the same terms as LEOs.

I hope Mr. Abbott makes the right decision. If not, this issue may end up being litigated.

- Jim

Jim,
Thank you for your insight and additional information. I can now actually see where Mr. Magidson may believe he has a basis for his opinion. However, I still believe that subjective application is a bad approach and question why!

[Charles L. Cotton]

The issue deals with a public employer's right, if any, to establish firearms policies as a condition of employment. As I understand it, the interim DA isn't saying it's illegal for his assistant district attorneys to carry in a courtroom; he's arguing he can make not carrying a condition of employment.

As I understand his position, the DA bases his position on Tex. Gov't Code §411.203 which reads "This subchapter does not prevent or otherwise limit the right of a public or private employer to prohibit persons who are licensed under this subchapter from carrying a concealed handgun on the premises of the business." The irony is that the Harris County DA allows his CHL prosecutors to carry in the DA's offices, but not in court. §411.203 does not establish a criminal offense, it just makes it clear that public and private employers can prohibit guns on their business premises. (Remember, the definition of "premises" found in TPC §46.035(f)(3) does not apply to the Government Code.)

I do not believe §411.203 can be cited as authority to prohibit CHL employees from carrying handguns on premises that are not the employer's business premises. That said, I feel quite certain public employers do have the right to establish policies that must be followed to obtain or keep a job. Examples are dress codes, facial hair policies, tattoo restrictions, etc. Whether this policy-making authority extends to firearms being carried in courtrooms by assist. district attorneys is not an easy question to answer. The ADAs need to understand that the legislature didn't say they "can carry in courtrooms," it merely said it's not against the law. There is a big difference between being given authorization to do something, as opposed to simply saying it's not unlawful.

This will not be an easy question for AG Abbott to answer. I do not believe the ADAs are going to be happy with the formal AG opinion.

Chas.

[yerasimos]

As far as I can discern the law, on the surface it seems that the prosecutors would be allowed to carry in the courtroom.

That said, I am deeply, philosophically opposed to this idea. Assuming the judiciary and prosecution are effectively independent from one another, I have no problem with judges, bailiffs and court police being armed as the designated peacekeepers, tasked with maintaining the courtroom proceedings as a verbal, persuasive battlefield while also capable of stamping out assaultive behavior. As far as I am concerned, these should be the only ones armed in the place. I have a serious philosophical disagreement with the defense being disarmed, and the prosecution (or their LEO witnesses) being able to walk in armed. Their contest is wholly restricted to argument and ideas, and both sides should be thus constrained in the courtroom. The prosecution team should take their chances being unarmed just as the defense does; they can rearm outside at the perimeter of the "secure area" under the supervision and protection of the courtroom police or bailiffs.

If this constitutes unwarranted thread drift, I understand, but this has been a peeve of mine for quite a while.

edited for spelling

[seamusTX]

I'll bet the thinking behind 46.15 allowing district attorneys to carry is that they are frequently the object of threats from criminals that they have put behind bars, and their fellow gang members and families. I don't know if every courthouse in Texas has metal detectors and secure storage facilities. If they do now, they did not 20 or 30 years ago.

- Jim

[Pinkycatcher]

I'll bet the thinking behind 46.15 allowing district attorneys to carry is that they are frequently the object of threats from criminals that they have put behind bars, and their fellow gang members and families. I don't know if every courthouse in Texas has metal detectors and secure storage facilities. If they do now, they did not 20 or 30 years ago.

- Jim

Defense attorney's can feel reprise from victims who feel like they wern't served with justice.

[seamusTX]

Then the defense attorney have to lobby the legislature and get what the prosecutors have. That's how these things are done.

- Jim