In late March, nineteen-year-old Henry Vichique was stopped by police while walking down the street with his rifle over his shoulder. The stop—the full details of which are clear, as Vichique recorded the entire encounter and put it on YouTube—involved the teenager behaving very politely as a pair of San Antonio police officers asked him to relinquish his gun. Vichique says “sir” a lot and insists that “I’m not doing anything wrong,” while one of the two officers tells him that neighbors had complained that Vichique had been pointing his rifle at people. Vichique, who says that he has video evidence that he was not doing that, asks if he’s free to go, and the officer tells him that he is free to walk home, and the police will happen to drive alongside him as he does so.
The encounter turns ugly when the second officer starts telling Vichique that “we’re going to take that gun.” When Vichique insists again that he’s not breaking the law, the officer uses his taser to bring him down, at which point he’s arrested.
We’ve written before about open carry demonstrations, and positions remain relatively unchanged: Texans have the right to carry long-arm rifles in public, though it’s hard to refute that choosing to exercise that right terrifies people who from a distance have no way of knowing if someone like Vichique—who again, was exceedingly polite and well-informed during the incident—is making a political statement or on his way to inflict harm, a fear that’s not unreasonable in 2014 America.
Some may consider Vichique’s action to be socially inconsiderate, though his supporters—who rallied on Sunday at a San Antonio police station to protest the arrest and the tasing (Vichique was eventually released without being charged)—and the law say he was well within his rights, something SAPD needed to have considered before taking action against him. But this situation was particularly tricky because a local ordinance conflicts with Texas state law:
San Antonio city law prohibits the carrying of loaded firearms within city limits, but Open Carry Texas President CJ Grisham said the state gives Vichique the right to open-carry a loaded gun and that law trumps the city’s law.
“The state law says no municipality may pass a law that regulates the keeping, transportation, or ownership of firearms. That’s exactly what San Antonio has done,” Grisham said. “If they’re law enforcement, they need to enforce all the law. They enforce state laws just like they enforce city ordinances and the state law says the city ordinance is unlawful, so I would prefer they enforce the state law and not an unlawful city law.”
Grisham said he understands that police officers are in a tight spot with conflicting laws, which is why he’s hoping Vichique’s incident will get the attention of the Texas attorney general.
The city law that Grisham refers to states that “it shall be unlawful for any person, other than duly authorized peace officers, to carry a loaded rifle or shotgun on any public street within the city or in a motor vehicle while the same is being operated on any public street within the city,” while sec. 229.001 of the state’s Local Government Code declares that “a municipality may not adopt regulations relating to the transfer, private ownership, keeping, transportation, licensing, or registration of firearms, air guns, ammunition, or firearm or air gun supplies.”
It’s hard to argue that walking down the street with a gun isn’t a regulation relating to the “keeping” and “transportation” of a firearm, which means that Grisham, Vichique, and their supporters could probably challenge the San Antonio law successfully. (It also seems like it’d be a political winner for Attorney General Greg Abbott to take on, frankly, as the mainstream perception of this issue is such that even his gubernatorial opponent Wendy Davis is in favor of broadening open carry laws.)
All of the controversy surrounding open carry, though, also suggests that there’s another issue here worth considering: Namely, that while the law in Texas is pretty clear about what people have the right to do, perhaps the part of the law that prohibits cities for determining for themselves what they’re comfortable with when it comes to openly-carried guns should be revisited.
It’s probably safe to say that the Venn diagram of “open carry supporters” and “people who believe in small government” tends to overlap so much that it basically looks like a circle. And it seems to run counter to those principles for the state to tell people in San Antonio that they’re not able to regulate the circumstances under which a person can openly carry a loaded weapon, if that’s what the people of San Antonio vote into local law.
Ultimately, the open carry supporters have the law on their side here, for the most part (there are some questions regarding “afrighting”), but laws can be changed—and it’s not unreasonable for people in San Antonio to want the ability to determine for themselves what they’re comfortable with.