The followiing report is an excellent example of democracy in action, and of gun owners acting in collaboration with other civil rights groups. Appreciate Eugene's commentary on prosecutors who refuse to follow the rule of law and the impact this has on our society. Rich Above the Law: How Texas prosecutors are placing their own judgements over that of the Legislature and the law of the land. http://tsra.com/docs/AboveTheLaw.pdf Executive Summary Some Texas prosecutors didn't like a new law -- passed by the 79th Legislature and signed by the Governor -- that clarified Texans' right to carry a legal handgun in a private vehicle. Some even directed local police to ignore the statue, according to statements from the Texas District and County Association (TDCAA) website and information collected under a Public Information Act request. For decades, Texas have been allowed to carry a gun while traveling, but the statue did not define "traveling" and courts came to differing conclusions about what kinds of activities constituted traveling. There was no bright line to tell law abiding Texans what they could and couldn't do. So the Legislature passed HB 823 to give police, prosecutors and gun owners clear terms for carrying a gun in the car. TDCAA issued a post-session bill analysis suggesting that police officers could still arrest drivers for "unlawfully carrying a weapon" even if the driver met the requirements of the new law. In response to this rebellious interpretation, the ACLU of Texas and TSRA filed a Public Information Act request to district and county attorneys for any policy or interpretation of the statue they had given to local law enforcement. Major Findings: -- Most county and district attorneys have not issued written guidance documents to law enforcement. -- 13 county/district attorneys, including district attorneys for counties in lrage metropolitan areas like Houston and Fort Worth, have instructed police officers to interrogate Texans unnecessarily, arrest Texans, or take their guns even if they are legally carrying in a car under HB 823 standards. -- TDCAA issued advice to its members that police officers are 'acting within their discretion" if they arrest a person who appears to be legally a gun in the car under this new law. -- TDCAA advised that police officers ask drivers a litany of intrusive questions that should no longer be relevant to the legality of carrying a gun in the car. -- One County Attorney advised police officers that it's simply too complicated to try and determine whether a Texan is legally carrying a stowed gun in the car. so officers should arrest for "unlawfully carrying" as before and let the prosecutor's office "sort out the legal niceties." Under Texas' tripartite form of government, neither courts nor prosecutors make the law, legislators do, and once they have made the law, prosecutors swear to uphold it. Clearly in Texas some have forgotten that oath. Legislative Proposals The Texas legislature should consider reigning in prosecutors' discretion and removing the profit motive for Texas proecutors to abuse the gun forfeiture process. Currently, prosecutors benefit financially from the sale of seized guns and officers have been given extraordinary discretion to go beyond the law. The Texas legislature could: (1) Change "presumption" a driver is traveling to a defintion using the elements of the presumption as the definition; (2) Require probable cause to believe a crime has been committed before a gun or other asset can be seized; (3) Finally pass and the governor should sign legislation requiring officers to get written consent from drivers for police to search vehicles at traffic stop; (4) Only profit asset forfeiture to become final if the underlying criminal case results in a conviction and take out the profit motive by redirecting money from the sale of seized guns to the Texas crime Victim's Compensation Fund. ________________________________________________________________________ AOL now offers free email to everyone. Find out more about what's free from AOL at AOL.com.
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