Outpost of Freedom blog

Camp Lone Star – Massey is Protected by State Law

Federal Government Violates State Law

Gary Hunt
Outpost of Freedom
August 28, 2015

There is a presumption in the minds of many people that the federal government has jurisdiction, anywhere. We even see the FBI investigating incidents in foreign, sometime hostile nations. Our purpose here however is to look at the extent, if any, of federal jurisdiction, within the geographic boundaries of the member States of the Union. It should be understood that there is a lot more to the extent of jurisdiction than will be discussed here. We are simply addressing those limitations as the apply to the recent events involving KC Massey and Camp Lone Star.

To its credit, the Texas State Legislature, in its wisdom and understanding of the relationship with the federal government, enacted Article 2.122 of the Texas Penal Code. This “law” provides for granting of certain authority to federal agents. The pertinent parts of that Act are as follows:

Art. 2.122. SPECIAL INVESTIGATORS.

(a) The following named criminal investigators of the United States shall not be deemed peace officers, but shall have the powers of arrest, search, and seizure under the laws of this state as to felony offenses only:

(1) Special Agents of the Federal Bureau of Investigation;

(3) Special Agents of the United States Immigration and Customs Enforcement;

(4) Special Agents of the Bureau of Alcohol, Tobacco, Firearms and Explosives;

(9) Marshals and Deputy Marshals of the United States Marshals Service;

(b) A person designated as a special policeman by the Federal Protective Services division of the General Services Administration under 40 U.S.C. Section 318 or 318d is not a peace officer but has the powers of arrest and search and seizure as to any offense under the laws of this state.

(c) A Customs and Border Protection Officer or Border Patrol Agent of the United States Customs and Border Protection or an immigration enforcement agent or deportation officer of the Department of Homeland Security is not a peace officer under the laws of this state but, on the premises of a port facility designated by the commissioner of the United States Customs and Border Protection as a port of entry for arrival in the United States by land transportation from the United Mexican States into the State of Texas or at a permanent established border patrol traffic check point, has the authority to detain a person pending transfer without unnecessary delay to a peace officer if the agent or officer has probable cause to believe that the person has engaged in conduct that is a violation of Section 49.02, 49.04, 49.07, or 49.08, Penal Code, regardless of whether the violation may be disposed of in a criminal proceeding or a juvenile justice proceeding.

So, the extent of the authority to arrest, which would also include detaining a person, is only “the powers of arrest and search and seizure as to any offense under the laws of this state [Texas].” We will address the limitation to the laws of the state, below.

BPS also has a greater degree of authority, but only at Ports of Entry and Checkpoints. So, at Sabal Palms, where the alleged “crime” took place, which may have been a violation of the laws of the state, the BPS agent who fired at Foerster had committed the only possible crime, and the BPS agent the only possible criminal. It might be stretching the point to say that Foerster, the only witness to the crime, might be detained, though that is a gray area that we need not address.

Clearly, Massey and Varner, not even witness to the crime, are well outside of the authority granted by the state to the designated federal agents. Take note, also, of the word “premises” in paragraph (c). We will also address that later.

So, the State of Texas saw fit to extend certain powers to certain agents of the federal government. The federal government has never contested the right of the State to enact such laws. If it had, and if they had the authority to refuse the state’s authority to limit their powers, then surely, there surely would have been a federal challenge, before now. If that is not correct, then, perhaps, the federal government needs to challenge that State authority now, or live by the law, as enacted.

Now, let’s revisit that word in paragraph (c), “premises”. Mr. Hagen has stated that KC was not on his premises, since he was not in his home. By that construct, we can assume that the word premises, in federal law led to Hagen’s presumption of the meaning under state law. However, I doubt that even Mr. Hagen would presume that the “premises of a port facility” would include ONLY the building that had “port facility” posted over the doorway. Surely, it includes the entire premises which comprises the entire port facility.

Now the federal government may have two definitions, though they have not provided an alternate definition. Texas Penal Code provides insight into the meaning of “premises”, under State law. Remember, the federal authority applies to felonies under State law. So, let’s look at Texas Penal Code:

Sec. 46.04.  UNLAWFUL POSSESSION OF FIREARM.

(a)  A person who has been convicted of a felony commits an offense if he possesses a firearm:

(1)  after conviction and before the fifth anniversary of the person’s release from confinement following conviction of the felony or the person’s release from supervision under community supervision, parole, or mandatory supervision, whichever date is later

(2)  after the period described by Subdivision (1), at any location other than the premises at which the person lives.

Meaning that five years after the completion of all portions of the punishment, he regains the right to possess a firearm, subject to the limitation imposed by sub-paragraph (2).

Sec. 46.02. UNLAWFUL CARRYING WEAPONS.

(a) A person commits an offense if the person intentionally, knowingly, or recklessly carries on or about his or her person a handgun, illegal knife, or club if the person is not:

(1) on the person’s own premises or premises under the person’s control; or

(2) inside of or directly en route to a motor vehicle or watercraft that is owned by the person or under the person’s control.

(a-1) A person commits an offense if the person intentionally, knowingly, or recklessly carries on or about his or her person a handgun in a motor vehicle or watercraft that is owned by the person or under the person’s control at any time in which:

(1) the handgun is in plain view; or

(2) the person is:

(A) engaged in criminal activity, other than a Class C misdemeanor that is a violation of a law or ordinance regulating traffic or boating;

(B) prohibited by law from possessing a firearm; or

(C) a member of a criminal street gang, as defined by Section 71.01.

(a-2) For purposes of this section, “premises” includes real property and a recreational vehicle that is being used as living quarters, regardless of whether that use is temporary or permanent. In this subsection, “recreational vehicle” means a motor vehicle primarily designed as temporary living quarters or a vehicle that contains temporary living quarters and is designed to be towed by a motor vehicle. The term includes a travel trailer, camping trailer, truck camper, motor home, and horse trailer with living quarters.

(a-3) For purposes of this section, “watercraft” means any boat, motorboat, vessel, or personal watercraft, other than a seaplane on water, used or capable of being used for transportation on water.

(b) Except as provided by Subsection (c), an offense under this section is a Class A misdemeanor.

(c) An offense under this section is a felony of the third degree if the offense is committed on any premises licensed or issued a permit by this state for the sale of alcoholic beverages.

So, the “person commits an offense” if he is not “on the “person’s own premises or premises under the person’s control.” It also provides for en route travel, but our concern is what “premises” means. Then, from (a-2), we find that ” For purposes of this section, “premises” includes real property and a recreational vehicle that is being used as living quarters, regardless of whether that use is temporary or permanent. So, the “premises” is where you live, if you have control of it. It includes real property, not just the house. And, surely, if you were a guest, with the consent of the owner, to live on his property, or a motel, whether temporarily or permanently, then the premises would include his land, and any other land that you were on, if you had the consent of the owner and he had knowledge of your firearm. So, unless argued to the contrary by the federal government, Sabal Palms would be the recreational premises upon which Massey’s stay was temporary. Likewise, the motel room, over which he had control as the renter, though temporary, for recreational purposes, would include those “premises” where he was arrested. To assume that he can have a firearm in the motel room, though he cannot leave the motel room, then cross that premises to his vehicle, with the firearm is the sort of absurdity that the government excels in. To assume such would be to assume that a law with a specific purpose is impossible, since the construction that federal government has applied would say that you have a right, though there is no way in which you can exercise that right.

The question also arises as to whether the detail of the intent and application of the State Law is properly heard in the Federal District Court, or if the original jurisdiction can reside only in a state court, with the State of Texas as the Plaintiff.

Now, it may seem as if I am stretching the right to travel with a firearm, in support of the other provisions. However, Texas did clarify the broadness of the right to possess framers in their state, with Section 46.15 (pertinent parts):

Sec. 46.15. NONAPPLICABILITY.

(b) Section 46.02 [prohibition of possession] does not apply to a person who:

(2) is traveling;

(3) is engaging in lawful hunting, fishing, or other sporting activity on the immediate premises where the activity is conducted, or is en route between the premises and the actor’s residence, motor vehicle, or watercraft, if the weapon is a type commonly used in the activity;

Now, let’s ask ourselves just why Texas thought that they could enact these laws. Did they do so despite the Constitution and what other tend to believe is the federal government’s overarching authority to enact any law that they want? Especially if the law they are using specifically cites “commerce” as the authority for such enactment? Or, as has been discussed previously, are the stretching their authority under the commerce clause beyond the scope granted by the Constitution and affirmed by the authors and proponents of the Constitution? See Federal Gun Laws and the Commerce clause.

The ratification of the Constitution came with instruction for the submission of a Bill of Rights, to assure that the assertion of federal authority did not exceed that which was intended by the document. There are two amendments that are applicable, one with regard to the people, themselves, and the other with regard to both the States and the people.

First is the Ninth Amendment:

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

And, more importantly and appropriately to this discussion, the Tenth Amendment:

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

So, there can be no doubt that Texas, with powers not granted to the federal government, nor denied to the State, is, without question, acting within its purview, as were the Representatives in the State Government, in expressing the Will of the People in asserting their rights through the enactment of the laws cited above. None of those laws encroach, by any stretch of the imagination, on the powers granted to the federal government.