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SewTexas wrote:EEllis,
just stop, either hold a reasonable conversation or stop the knee-jerk "cops are always right" guess what, I live in the San Antonio area, they aren't. We've got a couple I'm really sad to say who will be heading to trial. It happens. Sometimes cops are bullies.

Sew,
I don't like the outcome here either, but it's reasonable that officers enforce a local restriction. It's their job to enforce the law, not interpret it. Perhaps I expect less of officers, but if we wanted them to be legal scholars at any level, PDs should hire differently. And I generally come down on the side of "use your better judgement" for things like searches, but from the perspective of the officers here, this is a local law that their employer put on the books.

It's the DA's job to figure out if they've got a leg to stand on post arrest... And I agree with Ellis, the smart play here (if you're on the side of the city) is to absolutely drop it so that the local restriction stands unchallenged and uncorrected. And by not taking it to court, the obvious buffoonery of the law isn't directly ruled on.

What bothers me is that if the officers had enough justification to use a potentially lethal amount of force, there should have been grounds (charges) for using that force - IE resisting arrest. Even in cases of completely invalid arrests (no PC, made up laws about "recording" officers, etc) often those charges get dropped but charges for "resisting" stick.

I am fascinated by this one.. And again, what's saving that guy's tail is use of a recording device. I'd wager good money that there is no record of a call indicating that this guy was "pointing" a gun at anyone.. If I guess right, SAPD is in real trouble here.

I am not a legal expert either, but if I fall on the wrong side of the law, that is not an excuse for me. They go to months and years of training. If they are expected to enforce the law I expect them to have a semblance of knowledge of it. To not know that TX has pre-emption for gun laws is pretty bad.

cb1000rider wrote:I don't like the outcome here either, but it's reasonable that officers enforce a local restriction. It's their job to enforce the law, not interpret it. Perhaps I expect less of officers, but if we wanted them to be legal scholars at any level, PDs should hire differently. And I generally come down on the side of "use your better judgement" for things like searches, but from the perspective of the officers here, this is a local law that their employer put on the books.

I am fascinated by this one.. And again, what's saving that guy's tail is use of a recording device.

Unfortunately, the guy had to have a recording device to save his bacon.

"It's their job to enforce the law, not interpret it." I call this as bull. This whole incident reeks of "I'm just following orders".

I don't believe that officers have to be legal scholars to know that the law in unconstitutional.

It appears that they knew, but their supervisor exercised his authority and overrode their decision.

cb1000rider wrote:

SewTexas wrote:EEllis,
just stop, either hold a reasonable conversation or stop the knee-jerk "cops are always right" guess what, I live in the San Antonio area, they aren't. We've got a couple I'm really sad to say who will be heading to trial. It happens. Sometimes cops are bullies.

Sew,
I don't like the outcome here either, but it's reasonable that officers enforce a local restriction. It's their job to enforce the law, not interpret it. Perhaps I expect less of officers, but if we wanted them to be legal scholars at any level, PDs should hire differently. And I generally come down on the side of "use your better judgement" for things like searches, but from the perspective of the officers here, this is a local law that their employer put on the books.

It's the DA's job to figure out if they've got a leg to stand on post arrest... And I agree with Ellis, the smart play here (if you're on the side of the city) is to absolutely drop it so that the local restriction stands unchallenged and uncorrected. And by not taking it to court, the obvious buffoonery of the law isn't directly ruled on.

What bothers me is that if the officers had enough justification to use a potentially lethal amount of force, there should have been grounds (charges) for using that force - IE resisting arrest. Even in cases of completely invalid arrests (no PC, made up laws about "recording" officers, etc) often those charges get dropped but charges for "resisting" stick.

I am fascinated by this one.. And again, what's saving that guy's tail is use of a recording device. I'd wager good money that there is no record of a call indicating that this guy was "pointing" a gun at anyone.. If I guess right, SAPD is in real trouble here.

that's not what I was upset about and if you'd read the entire thread you would have figured that out. EEllis was basically being EEllis and I shouldn't have gotten upset but I was having a rough day and I let him get to me.

EElliss, I apologize for griping at you.

EEllis wrote:

Pawpaw wrote: A city is not "the Legislature."

Great but that doesn't matter as to the legality of the regulation until a court says it matters. I have already mentioned that I personally have an issue but there is a legal process which has to be followed for something to be "Officially" considered illegal or unconstitutional, and popping out buzzwords on the internet doesn't do it.

In that case, if somebody works over Mcmanus with a cattle prod it's not a crime until a court says so.

As I understand it, the importance of the Code of Hammurabi was that it made the laws (of that time and place) clear and available to all who could read them, and not just what someone said they were. What is the point of having a written law if it does not mean what it says?

Also, when I served in the military, I was always told that I did not have to carry out what I knew to be an unlawful order. (I never received a blatantly unlawful order, but I did refuse to comply with what I considered a shady maintenance action one time, and I had the book to back me up. The real malfunction was later discovered and the aircraft fixed properly.) So, my question is this: do law enforcement officers in the City of San Antonio not know that the State of Texas has preemption in matters dealing with firearms, not counting specific things such as the discharge of said firearms within city limits? If they do know, are they still supposed to carry out what amounts to an unlawful order (that city ordinance)? If they do not know the law, then they should be trained to know it. And please don't tell me something along the lines of "the police can't know all the laws". It was expected that if I didn't know a regulation pertaining to my job, that if necessary, I would access the information dealing with it, usually by going and looking it up. In this day and age of near-instantaneous information, is it impossible for law enforcement to have access to all the laws for which they are supposed to enforce? I fully understand laws can have gray areas, and that law enforcement would want to err on the side of caution, but to seemingly not even know? I find that concept hard to grasp. If they felt the need to temporarily detain the man until the law could be ascertained, then I would understand that. But in this instance, they went far beyond that, IMO.

SewTexas wrote:EEllis,

STOP! just stop.

this was a reasonable conversation.

just stop, either hold a reasonable conversation or stop the knee-jerk "cops are always right" guess what, I live in the San Antonio area, they aren't. We've got a couple I'm really sad to say who will be heading to trial. It happens. Sometimes cops are bullies.

Sometime they are and this may be the case here. Go back and actually look at what I wrote. I'm not saying I agree with any behavior or that cops are always right. I'm saying some of the comments just are off point.

Keith B wrote:I personally hope the young man's family pursues a civil suit in an attempt to receive compensation for wrongfully being tazed. While I wouldn't test the waters like he did, he was totally legal and was standing strong on the law. The Sargent showed up and decided to end the discussion in a manner that was totally out of line.

I tend to agree. The video is so bad that I don't want to claim misconduct by the officers, tho I do wonder, but I do think the ordinance should be struck down. I do think stating your position once, maybe twice, is enough then you comply under protest.

puma guy wrote: You don't know case law regarding preemption, yet you continue to argue it has to be decided by the courts.
With "all due respect" I can muster please read a post before you start trying to put words in my mouth. I wasn't responding to the tasing of the guy at all. I was responding to your suppositions and argument regarding laws and preemption . If you don't get the analogy I'm sorry. The 2nd Amendment has been affirmed by the SCOTUS with self defense a key element and it extends to the states. Did they say you can carry the weapon loaded? No, but only a really obtuse person would think they only meant unloaded weapons. Before you react - the last sentence was not directed at you. SA politicians fit the description to a "T".

Since SA doesn't prohibit any gun having a round in the chamber I would bet that the court would easily say it was constitutional. People have the right to self defence but they don't have an unlimited right to have anything they want to defend themselves. In heller and other cases they reason the laws were overturned is because they were so strict that it was impossible to have any firearm to defend yourself. Honestly it's not even a real argument because while in texas it's legal other locations it's not and guess what, no overturning of those laws by SCOTUS. As to the tasing, you posted in the middle of a back and forth and reference comments that were about the tasing. I mentioned that to put those comments in context. I also got the analogy I just don't believe it was a good one, sorry.

WildBill wrote:Case law can't be established until someone is prosecuted, found guilty and then is granted an appeal.

As long at the SA DA doesn't prosecute people for violation of this ordinance, they are free to arrest and harass as many people as they please.

It seems that somebody [not me] should ask for an AG opinion. That might do something to stop the harassment and arrests.

That may be true and they may. may, have decided not to risk it being overturned. Unfortunately citizens can't ask for AG opinions and they are not really binding anyway

SewTexas wrote: that's not what I was upset about and if you'd read the entire thread you would have figured that out. EEllis was basically being EEllis and I shouldn't have gotten upset but I was having a rough day and I let him get to me.

EElliss, I apologize for griping at you.

I'm not holding a grudge but if you really were trying to apologize I would of thought there was a less insulting way of putting it. I will admit I'm a little, call it nit picky, about some comments but part of the reason is that people look to forums like these for real info and to try and gather as much info as possible so they can make their own minds up. I don't think anyone is served by having a giant echo chamber that re enforces a few people beliefs. Let's also face facts while there is a strong percentage on here that are of a certain mindset, and I don't want to pigeonhole or insult by giving it a name some might disagree with, the very vocal support for that position drives many who are more moderate or just a different mindset out of these threads. That just makes the echo chamber worse and gives those that stay a skewed view of what others think and the support levels for those positions.

FML wrote: In that case, if somebody works over Mcmanus with a cattle prod it's not a crime until a court says so.

Well yes since people are innocent until proven guilty, but assault is already a crime so I'm not really sure how ytour comment is supposed to apply here.

EEllis wrote:

SewTexas wrote: that's not what I was upset about and if you'd read the entire thread you would have figured that out. EEllis was basically being EEllis and I shouldn't have gotten upset but I was having a rough day and I let him get to me.

EElliss, I apologize for griping at you.

I'm not holding a grudge but if you really were trying to apologize I would of thought there was a less insulting way of putting it.

WildBill wrote:Case law can't be established until someone is prosecuted, found guilty and then is granted an appeal.

As long at the SA DA doesn't prosecute people for violation of this ordinance, they are free to arrest and harass as many people as they please.

It seems that somebody [not me] should ask for an AG opinion. That might do something to stop the harassment and arrests.

You're right it wouldn't be case law. Legal precedent maybe. My mistake. No one include EEllis has cited any instance where preemption was not upheld. The antis- are up in arms- no strike that- are very disturbed that 45 states have preemptive laws regarding firearms and are trying to figure out how to circumvent them. The mayor of SA is of the same fabric as the POTUS and he and his ilk have no intention of letting a minor thing like the law be an obstacle to them.

I also failed to mention that besides the SCOTUS affirming the 2A applies to states with self defense as a key element, lawful self defense is actually written in the Texas Constitution by it's authors:
Sec. 23. RIGHT TO KEEP AND BEAR ARMS. Every citizen shall have the right to keep and bear arms in the lawful defense of himself or the State; but the Legislature shall have power, by law, to regulate the wearing of arms, with a view to prevent crime.
Now I'm no legal scholar, but IMHO it wouldn't be a far reach to believe they too assumed to keep and bear arms and the wearing of arms would cover those arms being loaded and that SA doesn't have legal standing to usurp those laws. Yet the argument will go on. I am signing off on this topic at this point before someone says the courts will have to decide if the Texas Constitution is really referencing loaded weapons and what does it all mean.

As for the AG, if he had any back bone he'd have jumped in the middle of this already.

I suspect that the prosecution of the OC advocate for charges under this ordinance did not happen because the prosecutor realized that the ordinance would be thrown out due to the state preemption law. I also suspect that there is now a memo from the prosecutor's office(s) (district/county/city) saying do not enforce the ordinance unless they are willing to accept the potential consequences. I also suspect that we will some some discussion, and perhaps the repeal of this ordinance, at future SA city council meetings.