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De: BladeWeb Brazil


Data: Quarta-feira, 19 de Novembro de 1997 07:38

O artigo abaixo foi retirado do Iaido List, uma lista de discussao sobre
essa arte marcial, administrada por Kim Taylor (Canada'). Kim e' tambem
um de nossos experts em artes marciais.

O texto e' sobre um praticante de Iaido que foi preso por transportar
sua espada. James Guinan, advogado, da' uma pequena explanacao sobre
legislacao de laminas no estado do Texas.

Vejam o nivel de detalhe, sofisticacao e , infelizmente, proibicao, que

essas leis atingiram nos EUA...

Abraco a todos,

Sergio Hartenberg
/----------------------(| |

> ---------------------------------------------------------------
> Subject: Is that a sword in your trunk or are you just happy to see me?
> Date: Tue, 18 Nov 1997 10:45:48 -0600
> From: "James L. Guinan"
> >> Last year one of our members had his katana locked up in the trunk of
> >>his
> >>of his car. He was arrested for "carrying an unlawful weapon" His
> >>sword was confiscated and his car was impounded. Read the article.
> >>For a copy, contact the
> > How can this happen? There are no laws, in any state that I know of,
> > preventing the ownership of swords or their transportation in the trunk of
> > a car. Carrying on your person is of course different, but locked in a
> > trunk?
> >
> > Was the sword returned? Were the chrages dropped? Please let me know as
> > this is of no small conern to me, as I'm sure it is to us all.
> >
> > Mike E.
> Ok folks, after bouncing this around on a few legal forums and based on
> my own past experience, I would like to assure everyone that
> transporting your Iaito/sword to and from class, should not present any
> legal difficulties to you or your students in most if not all of the
> U.S. jurisdictions that I know about. Now that sounds like a lawyers
> answer.
> Here is the deal. Every state that I am familiar with, Texas is where
> I practice Criminal defense law, has some form of an Unlawful Carrying
> of a Weapon charge as part of their Penal Code. In Texas, for example
> the law states as follows:
> 46.02(a) A person commits an offense if he intentionally,
> knowingly, or recklessly carries on or about his person a
> handgun, illegal knife, or club.
> 46.02(b) It is a defense to prosecution under this section
> that the actor was, at the time of the commission of the
> offense
> (3) traveling
> (4) engaging in lawful hunting, fishing, or other
> sporting activity on the immediate premises where the
> activity is conducted, or was directly en route between
> the premises and the actor's residence, if the weapon
> is a type commonly used in the activity;
> 46.01 (6) "Illegal knife" means a:
> (A) knife with a blade over five and one-half inches;
> (B) hand instrument designed to cut or stab another
> by being thrown;
> (C) dagger, including but not limited to a dirk, stiletto,
> and poniard;
> (D) bowie knife;
> (E) sword;
> (F) spear.
> The sports activity exception to section 46.02 of the Texas Penal Code
> would save most of us from prosecution. The pitfall here is where is
> the old legal concept of frolic and detour. If you were to stop off for
> a meal or a drink after class you may not be, "preceding (home) without
> undue delay or unnecessary or unreasonable deviation," and as such fall
> out of the exception to the law. See Davis vs. State, 135 Cr.R. 659,
> 122 S.W.2d 635, (1939). Outside the exception to the law the more
> fundamental question of carrying must be examined.
> The question of "carrying a weapon on or about the person" as it
> relates to transporting an unlawful weapon in a vehicle has been dealt
> with extensively by the courts in Texas. The conclusion by the appeals
> courts in Texas is that carrying on or about the person in a car means
> within reach within a car. See Flores vs. State, 895 S.W.2d 616 (App. 4
> Dist. 1995). "Carrying" has also been defined as having the unlawful
> weapon as anywhere withing the interior of the vehicle (passenger area).
> See Contreas vs. State, 853 S.W.2d 694 (App. 1 Dist.1993). The court was
> not examining the this issue in light of a van or sports utility
> vehicle. Based on my review of the case law my conclusion is that as
> long as the weapon in question is not within reach...even strained
> reach...then you are alright. In the last 3 years no less than 4 trial
> judges in Dallas County have agreed with me and dismissed cases on these
> grounds. In each case the weapon in question was returned to the
> citizen accused of the crime.
> Of course the laws in each state are different. However, the law of
> possession or carrying illegal weapons or other forms of contraband has
> become somewhat universal. Because of the heightened level of
> prosecution of drug and gun related crimes during the last 30 years,
> legislatures and courts of appeals across the United States have dealt
> extensively with the issues of possession and carrying. As a result the
> laws have become some what similar because of U.S. Constitutional
> requirements and Supreme Court interpretation.
> This being the law does not stop the local police from being some what
> over zealous in its application. While trying not to offend the law
> enforcement members of this list server, it is well know that on some
> rare occasions police can become very heavy handed. The case discussed
> on this list server and paraphrased above sounds more like a shake down
> than an accurate application of law. This type of shake down is
> something that I am quite familiar with in my practice. By the time a
> police officer searches a locked trunk of a motor vehicle a lot has
> happened, usually involving one or more other charges.
> As before I am trying to write a more comprehensive article on this
> very subject. I wish to thank everyone that has written submission to
> me regarding local laws. All of your help is greatly appreciated.
> Every reference you give me will save me time in the Library.
> Your humble servant
> James Guinan
> DISCLAIMER: The foregoing is not and should not be considered legal
> advice. Rather, it is a summary of law and legal opinion regarding a
> subject that we are all concerned. For a qualified legal opinion
> regarding the laws in your locality please consult a well informed and
> license attorney in your area or local law enforcement personnel.
> ---------------------------------------------------------------