De: BladeWeb Brazil Assunto: LEGISLACAO DE LAMINAS NO TEXAS 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 BLADEWEB BRAZIL http://www.visualnet.com.br/bladeweb ______________________(|_______________ /----------------------(| | /_______________________(|_______________| (|

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--------------------------------------------------------------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.

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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

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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. ---------------------------------------------------------------