States of Emergency, quarantines, and disaster declarations can bring fear and panic for everyone, due to the uncertainty surrounding them. When state governments throughout the U.S. have varying policies regarding how your rights change, it can be confusing for anyone to fully understand their freedom during these times.
When it comes to your firearms, be assured that we will keep you up to date on any changes in the law that impact your rights.
As for general Coronavirus updates and local and national conditions, the news on these restrictions is coming fast and furious across the nation. Please follow state, local, and national news, as this information can change by the day and hour.
Here in Texas, Governor Abbot declared a State of Disaster on March 13, 2020. There is even an ongoing quarantine in San Antonio at the Lackland Air Force base for people exposed to COVID-19 overseas.
What measures, under Texas law, could local authorities in your area impose to try and stop its spread, and what are your rights as a License to Carry (“LTC”) holder during a health crisis? This article will first address the two primary measures available to the government, state and local, to combat this crisis. Those are the quarantine and State of Disaster. The remainder of the article will address the likely ways in which these measures could impact your right to possess and carry firearms.
Texas Health and Safety Code Chapter 81 contains many of the powers available to Texas authorities in times of disaster or health emergencies. One such power is a quarantine order applicable to an area, which requires the cooperation of local authorities (county commissioners’ courts, city councils, and mayors). See Texas Health & Safety Code Ann. § 81.085(b). A communicable disease under this statute means an illness that occurs through the transmission of an infectious agent or its toxic products from a reservoir to a susceptible host, either directly, as from an infected person or animal, or indirectly through an intermediate plant or animal host, a vector, or the inanimate environment.” Texas Health & Safety Code Ann. § 81.003(1).
The powers granted during a quarantine under the statute are broad and vague. According to the statute, “a health authority may impose in a quarantine area under the authority’s jurisdiction additional disease control measures that the health authority considers necessary and most appropriate to arrest, control, and eradicate the threat to the public health.” There is no guidance as to what these measures may legally include, but the failure to abide by such an order is a third-degree felony. See Texas Health and Safety Code § 81.085(h)-(i). Third-degree felonies in Texas carry a possible punishment of two to ten years in prison and a fine up to $10,000, per criminal charge.
In Texas, widespread quarantine orders and public health disasters are uncharted territory, making this area of the law unpredictable. Different counties and law enforcement agencies may take very different measures in enforcing quarantine or control orders.
PUBLIC HEALTH DISASTERS
In Texas, legally recognized emergency situations are called “States of Disaster” and are declared by the governor through executive order. These declarations are often issued because of natural disasters like a hurricane or flood. However, there are other types of public emergencies specifically geared toward health: Public Health Disasters (these may be declared by the governor or the Texas Department of State Health Services Commissioner); and Public Health Emergencies (these may be declared by the governor or by federal authorities).
These public health declarations may continue for up to 30 days, and be renewed once by the commissioner for an additional 30 days under Texas Health and Safety Code § 81.082(d).
If the government relies on the declaration of a public health disaster only, they still have many measures at their disposal, including: control measures applied to an individual with a communicable disease (Tex. Health and Safety Code § 81.083); mandatory testing of persons suspected of exposing certain other people (typically law enforcement, emergency services, or firefighters) to a communicable disease (Tex. Health and Safety Code § 81.050); and control measures specifically addressing land and tangible property suspected of being infected or contaminated with a communicable disease (Tex. Health and Safety Code § 81.084).
Again, these powers under the statute are broad and vague. Remedies are typically available in the court system if a person is ordered by the government to perform a task or give up property, so it’s important to contact an attorney immediately if any of these control measures happen to you or a loved one.
CAN A LAW-ABIDING GUN OWNER BE DISARMED?
The good news is that there is no statutory authority specifically allowing the government to seize firearms during a disaster or quarantine. Unlike states of disaster for natural phenomena like hurricanes or floods, if someone is quarantined, they’re likely not going to leave their home. It would be extremely unlikely and unprecedented for a lawful order to remove a person’s firearms from their possession inside of their home during one of these periods.
The bad news is that the governmental powers described above are so broad and vague that different authorities might interpret these laws differently.
For example, if a local authority were to ban firearms in a quarantine zone, say a hospital or nursing home, good, law-abiding folks may find themselves being arrested for legally carrying a firearm under the catch-all penalty for knowingly or refusing to obey “a rule, order, or instruction of the Texas Department of State Health Services or an order of instruction of a health authority.” Texas Health & Safety Code § 81.085(h). Instead of being charged with a misdemeanor, the gun owner would now be accused of a third-degree felony.
Again, it is very important to contact an attorney immediately if any of these control measures happen to you or a loved one.
CAN I STILL CARRY DURING A QUARANTINE OR DISASTER?
If you have an LTC, the answer is “yes.” All of the normal carry laws apply, just be very careful that there are no strange or unusual firearms declarations that apply to the quarantine or disaster area.
If you do not have an LTC, recent changes made to the unlawful carry of a weapon statute (Texas Penal Code § 46.15(k)) allow those who may lawfully possess firearms but do not have an LTC to carry their handguns without being charged with unlawfully carrying a handgun if done so while evacuating from an affected area during a declared state or local disaster or while returning home to that area. This generally means that even without a Texas LTC, a person would be allowed to carry their handgun when forced from their home after a declared state of disaster. A word of warning though – an evacuation is not likely if a quarantine zone is in place, as the objective of authorities would be to keep people contained in their homes.
This protection from prosecution extends for one week after the disaster declaration, and the governor has the authority to extend the disaster period.
Texas Government Code § 418.184 allows a peace officer who is acting in the lawful execution of their official duties during a state of disaster, to temporarily disarm a person if the officer reasonably believes it is immediately necessary for the officer’s or another person’s protection. However, the statute goes on to say that the officer shall return the firearm and any ammunition disarmed under this law before detaining the gun owner, unless the officer arrests the gun owner for engaging in criminal activity or the firearm is evidence in a criminal investigation.
Additionally, Chapter 433 of the Texas Government Code details what powers are available to state authorities during a state of emergency; a separate type of 72-hour measure to control areas suffering from riots or unlawful assemblies by three or more people acting together by use of force or violence; if a clear and present danger of violence exists; or a natural man-made disaster occurs.
Texas Government Code § 433.0045 specifically addresses firearms rights during a state of emergency, and is almost identical to Texas Government Code § 418.184, but adds that a directive issued under Chapter 433 may not authorize the seizure or confiscation of firearms or ammunition from a person who is lawfully carrying or possessing them. An officer may still temporarily seize firearms and ammunition from a person during a state of emergency if immediately necessary for the officer’s or another person’s safety, but shall return them to the gun owner unless they arrest the gun owner for engaging in criminal activity or if the firearm is evidence in a criminal investigation.
If you find yourself in a situation where a law enforcement officer is ordering you to disarm, the best practice would be to remain calm, comply, and let your lawyer do the fighting for you if the police attempt to file charges against you.
If you have any questions about your gun rights during a state of disaster or quarantine order, call Texas LawShield and ask to speak with your Independent Program Attorney.
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