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Austin Gun Show Controversy

A reader sent me a link to a dust up between a gun show promoter, the Austin, TX police, and ATF. I was hoping today to getting around to looking at this story more closely, but in a fantastic bit of citizen journalism, Howard Nemerov already has the scoop on this issue. His conclusion:

There are no clear-cut villains and victims here. In the final analysis, you the reader need to decide the best course of action. Facts, not rhetoric, help make educated decisions.

Having this kind of thing happen to a gun show is not all that unusual. We lost a big one here in Pennsylvania because the Fort Washington Expo Center’s new management decided they no longer wanted to host gun shows on their property. Not much you can do in that situation except find a new venue. I would point out that the Fort Washington Expo Center is now defunct, however, so maybe kicking the gun show to the curb was not their only poor business decision.

But I still want to write about what I think would be a novel legal issue in regards to gun shows, particularly if nuisance ordinances are used against them. Texas, like most other states, preempts local governments from enforcing anti-gun ordinances:

No governmental subdivision or agency may enact or enforce a law that makes any conduct covered by this code an offense subject to a criminal penalty. This section shall apply only as long as the law governing the conduct proscribed by this code is legally enforceable.

Texas preemption statute is very strong, and I suspect whatever Austin might want to construe its nuisance ordinances to mean, it can’t construe them as meaning they can use them to force out a gun show. But does it prevent them from asking the landlord to put restrictions on the show? One could argue if there’s no legal threat, it’s not enforcement, and so preemption does not apply. But one could also argue that any lawful authority, such as a nuisance unit of a police department, that even talking to a landlord, who might have good reasons to want to stay on good terms with a police agency of that nature, amounts to a form of coercion. This would, of course, be a long shot argument, but such arguments have been made successfully in other contexts.

It’s interesting what could happen if other cities suddenly started taking generally applicable laws, and even hinting to property owners that they could be applied if they don’t kick out gun shows. Preemption laws, in spirit, are supposed to deal with that problem, but that gets more dicey laws get applied sneakily or stealthily, in a way that makes it hard for us to prove a preemption violation. For this, we will need show promoters to fight, and work with relevant organizations, like NRA, NSSF, etc, to uncover exactly what local authorities are up to if they suspect pressure is being applied to get gun shows out of their jurisdictions. Preemption is merely a tool, it’s not an absolute protection against all malfeasance on the part of local governments. Making is work is up to us.

8 Responses to “Austin Gun Show Controversy”

  1. Fiftycal says:

    The “multiple arrests” that were the basis for a “nuisance” complaint were 12. Over 12 months. During which 12 gun shows were held. And a “nuisance” complaint is generally brought by the community. Not another “unit” of the police dept. There is an on-going “nuisance” case against a nearby notel that used to rent rooms by the hour. There had been over 1000 arrests and tickets issued on that one. But 12? This is clearly a case of coercion and ATF trying to make legal person-to-person sales illegal.

  2. David Fox says:

    It is said someone was taken out of the venue in cuffs for selling to an undercover agent who was supposedly illegal. Another case of the govm’t breaking the law under the pretense of enforcing the law. I wonder what would’ve happened if no one would’ve complied with the APD/ATF request? Or what would’ve happened if people arranged a sale at the show and actually made the private transfer on another property? There is a threat of force implied every time the govm’t involves itself in such matters, because the govm’t *is* force, regardless of how courts have and have not ruled. Personally I wouldn’t have complied if I were the property owner – but that’s just my well-regulated position. :P

  3. Sebastian says:

    The motivation isn’t really the issue, unless you have some fiddle in the law in regards to what a nuisance is. Ten arrests, twelve arrests, or a hundred, if any of those can be considered cause for pressing a nuisance action under Austin city ordinances, that’s really all that matters.

    Now, preemption should prevent them from pressing a nuisance complaint in order to close down a gun show. But this isn’t that cut and dry because it doesn’t appear they actually went ahead with the nuisance complaint. It appears they went to the landlord and asked if there was something the landlord could do, and the landlord agreed. So who do you pursue legally? You can’t pursue the landlord. It’s their property, and if they want to set conditions on the lease they can. Can you pursue APD for violating preemption? Maybe, but it might be a tough case depending on what went on. My feeling is no, because unless they proceeded with nuisance enforcement against the property owner to get the gun show to comply, you can’t raise preemption. You’d have to make the claim that the landlord was coerced by the APD. You could make the case, maybe, that even asking is coercion, because who wants to cross a nuisance unit who could come after you in another unrelated area if you have multiple properties?

  4. No clear cut victim, except the private citizen wishing to sell his private property at the gun show.

    I think that’s a pretty big victim list. It saddens me to see that Howard Nemerov nor Sebastian consider the private citizen deprived of the ability to conduct lawful transfers of private property to be a victim.

    Would the non-victim status still apply if the rule was “No discussion or promotion of Buddist behavior on the floor or on the property”?

    The force of law was used to threaten a public company to change it’s rules on private citizen activity.

    Here, read this.
    http://blacklistednews.com/news-7099-0-8-8–.html

  5. Sebastian says:

    We need to find out what went on, from a credible source, hence the suggestion in a subsequent post that FOIA requests are filed to find out. But this appears to be the case of the police approaching landlord asking if they’d be willing to put some restrictions on the show, and they agreed.

    Wallowing in victimhood here isn’t going to help anyone sell guns privately at that show again.

  6. Didn’t bother to read the site i see.

    Wallowing in victimhood? The chilling of civil rights should be a bit more important that the blow off this is receiving.

    I don’t think anything in this story would scare the white people Sebastian, so it’s OK to cover it in a bit more detail.

  7. Ian Argent says:

    If I am reading the article correctly, the promoter had a contract with the landlord specifying only FFLs were to sell firearms on premises. We are looking at a conflict of fundamental rights – free-association and property vs commerce and RKBA.

    In this case I have to go with the property rights argument – the property owner does not have to let anyone sell *anything* on his property. He doesn’t have to let me prosyletize for the Flying Spagetti Monster either.

    Bad things happen that cannot be prevented by force of law. The correct answer here is not to try and pass a law or judicial decision, but to change hearts and minds so that discrimination agaainst lawful firearms owners is as socially distasteful as discrimination against, say, social drinkers.

    To that end, publicizing this and shunning the property owner is an appropriate response by both the promoter and gunnies But be aware that there *are* two sides to the story.

  8. Sebastian says:

    I read the site. People can claim anything, it doesn’t mean it’s true. See my subsequent post on this where I outline what folks can do if they want to pursue this thing.

    I’m not saying take to take this lying down, but before we sort out victims and villains we have to first know what happened, and then put the appropriate pressure in the right places.

    And like Ian said, if this is a case of a landlord putting the screws to the tenant gun show, without any real pressure from the APD or ATF, there’s not much recourse short of moving the show or compliance.

Trackbacks/Pingbacks

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  2. SayUncle » Gun Show Controversy in Austin - [...] laws. Nemerov has a look at the issue and thinks both sides are overreacting a bit. Sebastian thinks preemption…
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