Bandidos Motorcycle Club News

Bandidos Motorcycle Club- It is a crime for a member of a “criminal street gang” to carry a handgun while in a car or boat

Eugene Volokh

From Becker v. State, decided yesterday by the Texas Court of Appeals, in an opinion by Chief Justice Brian Quinn:

It is a crime for a member of a “criminal street gang” to carry a handgun while in a car or boat, if he owns or controls those vehicles. Apparently, the same cannot be said of that same “criminal street gang” member carrying it while walking, riding a bike, or even riding a horse. Nor is it true, under the expressed wording of the statute, if he carries the firearm while riding in a car or boat owned and controlled by someone else, including a fellow “criminal street gang” member.

How about riding on a motorcycle? The statute refers to carrying the weapon “in a motor vehicle.” Like riding Mother Nature’s horse, riding a two-wheeled iron one involves being atop or “on” it. Of course, one may scoff at drawing such hyper technical distinctions; but, do not such hyper technical distinctions already exist in a statute that criminalizes possession of a handgun when driving his own car but not while being driven in another person’s car or while simply walking on a street.

Let us try another, shall we? What if the State licensed that supposed “criminal street gang” member to carry the firearm? In so licensing the person, logic suggests that it approved of his carrying the weapon. Though not a criminal for purposes of securing a license, the person apparently becomes one simply by sitting in his own car or boat with the item he was licensed to carry.

{[But] the statute underlying his prosecution lies within Chapter 46, § 46.02 of the Penal Code. Elsewhere in the very same chapter of the very same Code lies another provision. It provides that “[s]ection 46.02 does not apply to a person who … is carrying … [both] … a license issued under subchapter H, Chapter 411, Government Code, to carry a handgun … and … a handgun … in a concealed manner … or … in a shoulder or belt holster.” Id. § 46.15(b)(6)(A), (B) (emphasis added). The potential impact of the latter statute upon the State’s prosecution of Becker for violating a subpart of § 46.02 is apparent. If § 46.15(b)(6) means what it says, his having a license to carry may well remove him from the teeth of § 46.02(a-1).}

Those are a few of the mystifying mind teasers revolving around this appeal from an order denying Ashely Becker’s pretrial writs of habeas corpus. Yet, Becker was not “in” a motor vehicle but on his motorcycle. Furthermore, his purported status as a “criminal street gang” member allegedly arose upon joining the Bandidos Motorcycle Club. He argued below and here that focusing merely on his membership in the purported “criminal street gang” to prosecute him for carrying a handgun that the State licensed him to carry violated a myriad of his constitutional rights. The trial court disagreed and denied both his facial and “as applied” constitutional attacks levied against § 46.02(a-1) of the Texas Penal Code. We have been afforded the opportunity to consider that decision but forgo it at this time….

[The facts of the case:] Becker and [another motorcycle rider] wore vests depicting membership in the Bandidos. The latter organization was “confirmed as an ‘Outlaw Motorcycle Gang,'” according to the deputy. And, upon approaching “both motorcyclists,” he spoke first with Becker who “handed [the deputy] a Texas Driver’s License and a Texas License to Carry” a concealed weapon. Upon seeing the license to carry, the deputy asked Becker if he (Becker) possessed a handgun. Becker “advised he had his gun on his hip.” … Becker’s carrying the weapon allegedly violated § 46.02(a-1)

The court concluded, however, that under Texas appellate procedure it couldn’t reach these issues on a pretrial writ of habeas corpus; presumably they will need to be raised in various motions before the trial court, and then perhaps in an appeal after a trial.

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