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Arrested for Unlawful Use or Illegal Possession of Weapons or Firearms in Texas
Both federal statutes and Texas laws outlaw many different kinds of weapons as well as making their ownership or use or possession illegal except in certain, specific circumstances. Weapons include things like guns and knives as well as less common items, such as tomahawks, brass knuckles, or swords (see Texas Penal Code 46.01 for a long list of regulated weapons).
Here in Dallas, weapons defense lawyers represent clients who face jail time if convicted on a wide variety of criminal weapons charges that result in all sorts of circumstances such as:
- Weapon found during drunk driving (DWI) stop / arrest;
- Handgun or firearm discovered during arrest on another charge (including drug bust);
- Arrest for unlawful discharge of a weapon or firearm;
- Arrest for acting as “straw man” in the purchase of a weapon for someone not legally allowed to own a handgun, firearm, etc;
- Found with a weapon after having a felony conviction on record;
- Weapon found at the airport;
- Weapon found at school; or
- Weapon found at a bar or place where they serve alcoholic beverages (has liquor license).
Arrests and criminal charges based upon weapons or firearms are often the result of a search and seizure by law enforcement officers, where the police may be looking to the individual for other kinds of crimes. Often, a Texas criminal defense lawyer will be helping someone who is facing other kinds of criminal charges alongside the illegal weapons arrest.
Unlawful Weapons Charges in Texas: Arrests for Federal or State Violations
The State of Texas is very permissive regarding gun control. Texas, for example, allows someone to use a weapon to protect themselves from being attacked (e.g., the “Stand Your Ground Law” at Texas Penal Code §9.31) and it is legal in Texas to use deadly force when protecting yourself in your home from an illegal intrusion (burglary, home invasion) into your dwelling place (“Castle Doctrine” in Texas Penal Code §9.32).
Furthermore, Texas has no firearms registration requirement; no state permit requirement to buy a firearm or other weapon; and a wide range of laws allowing for the concealed carry of guns and pistols. In fact, much of the regulation of weapons and firearms in Texas today is based upon federal law.
Weapons are heavily regulated by federal statutes which include: National Firearms Act of 1934; the Brady Handgun Violence Prevention Act; and the Federal Assault Weapons Ban (expired in 2004). In Texas, someone charged with a weapons violation may proceed before federal U.S. attorneys in federal district court on federal weapons charges just as frequently as they will face state weapons charges filed by a state district attorney in a Texas criminal court.
Oftentimes, Texas weapons lawyers defend clients who are facing unlawful weapons charges under federal law, particularly those related to illegal trafficking of guns or weapons or those curtailing the use or possession of weapons under federal law. Drug cases in Texas often have a combination of defenses that fight against both drug charges and arrests for crimes dealing with illegal weapons.
Federal Statute 18 USC § 924c – Federal Weapons Charges
Title 18 United States Code Section 924c is the federal statute that comes into play when someone is arrested on drug charges and weapons are involved in the bust. Federal law will apply when federal authorities are involved, as for example airport searches at Dallas Love Field or Dallas / Fort Worth International Airport by federal agents from Homeland Security or ATF (Department of Alcohol, Tobacco, and Firearms).
Federal weapons charges can involve serious jail time for those convicted of illegal weapons possession, and they will boost the potential sentence facing those arrested for other federal crimes. Under Section 924c, anyone who uses or carries a firearm during a crime of violence or drug trafficking crime faces additional punishment:
(i) be sentenced to a term of imprisonment of not less than 5 years;
(ii) if the firearm is brandished, be sentenced to a term of imprisonment of not less than 7 years;
(iii) if the firearm is discharged, be sentenced to a term of imprisonment of not less than 10 years.
Furthermore, if the firearm is of a certain type, the punishment under federal law is more severe:
(i) is a short-barreled rifle, short-barreled shotgun, or semiautomatic assault weapon, the person shall be sentenced to a term of imprisonment of not less than 10 years; or
(ii) is a machinegun or a destructive device, or is equipped with a firearm silencer or firearm muffler, the person shall be sentenced to a term of imprisonment of not less than 30 years.
Defenses against Weapons Charges
Texas criminal defense lawyers usually focus upon the search and seizure aspects of any weapons charge at the outset, because the prosecution must establish that the government’s taking of the property was done with legal justification. What happened with the weapon at the airport luggage search or on the side of the street by a city police officer in a traffic stop must be done properly under the law.
Additionally, the government’s evidence must exist in admissible and authentic form to prove that the defendant had illegal possession, custody, control, or ownership of the firearm or weapon. No one should be held legally responsible for a gun, knife, rifle, or shotgun to which they cannot be legally tied.
Finally, even if the defendant can be legally bound to the weapon by the prosecution, if there are laws on the books (such as the Stand Your Ground law) that provide an affirmative defense or legal justification for the weapon, then the state’s charges cannot hold. If it was legal for the person to have the weapon, then there is a clear legal defense to the unlawful weapons charge.
Straw Purchases of Firearms: Defending Against Charges of Illegally Buying Guns for Others
For example, the defense to an allegation of violating federal law by the straw purchase of a firearm can be advanced in Texas if the prosecution cannot show that:
- the gun was bought at a federally licensed firearm dealership;
- there is evidence that the straw man (the purchaser) made false statements at the time of the purchase regarding for whom the gun was being purchased (inaccuracies on the firearms sales transactions record of the dealership)(there must be evidence of intent to deceive by the purchaser); and that
- the straw purchaser was not legally acceptable under the law to buy the weapon at the time that the purchase was made (federal law prohibits certain people from buying weapons including those with felony convictions, those who are under the age of adulthood, etc.).
There is no straw purchase statute in Texas; arrests in the Lone Star State for straw buys of guns will be made as a general rule under federal law 18 USC §922(6)(Straw Purchase Statute), which states it is illegal:
… for any person in connection with the acquisition or attempted acquisition of any firearm or ammunition from a licensed importer, licensed manufacturer, licensed dealer, or licensed collector, knowingly to make any false or fictitious oral or written statement or to furnish or exhibit any false, fictitious, or misrepresented identification, intended or likely to deceive such importer, manufacturer, dealer, or collector with respect to any fact material to the lawfulness of the sale or other disposition of such firearm or ammunition under the provisions of this chapter.
Possession of a Prohibited Weapon – Texas Penal Code 46.05
Grand juries in Texas, particularly those in the Dallas – Fort Worth area, are often presented with cases where weapons are confiscated and the prosecution is pursuing charges of “possession of a prohibited weapon” under Texas Penal Code Section 46.05. In Dallas County, Tarrant County, and the surrounding area, criminal defense lawyers helping people with weapons arrests often find that their clients are facing charges of “possession of a prohibited weapon.”
Interestingly, it has been the experience of Dallas criminal defense attorney Michael Lowe that these charges of “possession of a prohibited weapon” are often “no billed” by local Grand Juries. (The Grand Jury has not voted to pursue weapons charges against the individual found with weapons and facing charges.)
All sorts of weapons have been found during routine traffic stops or arrests on other charges. Some of these charges of “possession of a prohibited weapon” carry a misdemeanor charge (knuckles, switchblade) while others can result in much more serious felony convictions.
Texas Penal Code 46.05 states:
(a) A person commits an offense if the person intentionally or knowingly possesses, manufactures, transports, repairs, or sells:
(1) an explosive weapon;
(2) a machine gun;
(3) a short-barrel firearm;
(4) a firearm silencer;
(5) a switchblade knife;
(7) armor-piercing ammunition;
(8) a chemical dispensing device;
(9) a zip gun; or
(10) a tire deflation device….
(e) An offense under Subsection (a)(1), (2), (3), (4), (7), (8), or (9) is a felony of the third degree. An offense under Subsection (a)(10) is a state jail felony. An offense under Subsection (a)(5) or (6) is a Class A misdemeanor.
Texas Weapons / Firearms Charge Defense Lawyer
As a former prosecutor turned criminal defense lawyer with over 150 jury trials defending clients against charges brought by district attorneys and U.S. federal prosecutors in Dallas County, Tarrant County, and elsewhere in the State of Texas, Board Certified Criminal Lawyer Michael Lowe not only brings his years of experience to each case, he also dedicates 100% of his law practice to the defense of those being accused of a crime under Texas or federal law.
With a streamlined law firm that coordinates its efforts to give each client the personal attention that they need and deserve when fighting against the government and the possibility of jail time, fines, permanent marks on public records, prison incarceration, loss of licensure, loss of jobs, absence from family events and everyday living, Michael Lowe maintains an efficient and excellent criminal trial practice that is ready to help you or your loved ones in your defense against criminal charges from pre-arrest investigation to post-trial appeals.
To discuss your case in a free and completely confidential consultation, please contact Dallas Board Certified Criminal Lawyer Michael Lowe today.