This was the argument made by Fort Bend County DA’s office.
This jarring story begins with the Fort Bend County Narcotics Task Force arresting a man based upon a tip from an informant for misdemeanor possession of marijuana during a traffic stop.
This led to the Narcotics Officers retrieving four bags of garbage from this man’s trash and rummaging through them. There, they found empty sandwich bags that smelled like marijuana, scales and what was believed to be stems from marijuana plants.
Yes, the police will dig through your garbage, as the law clearly holds that once you set your trash out, you have abandoned it, and anyone can take it should they please. Anyway, it appears that this man, once released from jail, tried to purge his home of everything illegal that he once had. Based on what the officers found in his trash, they obtained a search warrant to search his home.
When they raided his home, this man, who worked on the side as a gunsmith, had 27 firearms in his residence. The Sheriff’s Dept. seized these weapons for “safekeeping,” without evidence the weapons were stolen or used in a crime. They stated that in their report. They did find a small plastic bag containing under two ounces of marijuana and $2,520.00 in cash.
They arrested him for “Class B Misdemeanor Possession of Marijuana,” and for “Money Laundering” for the cash they found in his home. These charges were later dismissed by the District Attorney’s Office. He did plea to time served on the misdemeanor marijuana found on the traffic stop. The District Attorney filed a seizure of the cash and kept the money.
Now, some of you may be saying, “I keep more than $2,500.00 cash in my home just for emergencies! Is this now illegal?” Having cash in your home is not illegal, but having cash and evidence of another crime, such as drug possession, will get it seized every time. If law enforcement were to find a large amount of cash in your home, that would get you a visit from the IRS criminal investigation division, and possible federal charges. That is a story for another time.
Now here is where things get interesting. With Texas being a big Second Amendment state, our legislature enacted Article 18.19 of the Texas Code of Criminal Procedure, titled “Disposition of Seized Weapons.” This statute makes it clear that upon the dismissal of both cases from the search of his home, the government must; not may, but must; return the weapons to the legal owner. The District Attorney’s Office refused. This is how we became involved.
This man showed up at my office about six months after the dismissals, wanting to know about getting his firearms back. We filed a motion seeking the return of all the firearms taken. Despite state law, the Fort Bend County District Attorney’s office opposed the motion. A hearing was held in front of Democratic Judge Tyra McCollum in Fort Bend County Court at Law No. 2.
Our firm represented the owner of the 27 firearms that were seized for “safekeeping,” proving to the court the facts of the arrest, that the case was dismissed and that all the elements fit the statute requiring the return of the property. Two of the weapons were Short Barreled Rifles, and we even presented the Federal Firearms Stamp for those two weapons. This means that our client had passed a Federal/AFT background check prior to taking possession of those weapons.
Fort Bend County DA Brian Middleton
One of Brian Middleton’s Assistant District Attorneys, while agreeing that all the elements of Article 18.19 were met, responded by saying the position of the District Attorney was that “Nothing additional from the State other than his 27 firearms. The State would just be opposed based on the number of firearms that we’re talking about and they’re pistols — ranging from pistols to rifles.” My first thought was, did I hear that correctly? The District Attorney’s Office was trying to impose limits on how many firearms a person can possess. There is no law in Texas or in Federal law limiting just how many firearms a person can possess. They can limit the kind of weapons like, Full Auto, short-barreled rifles and suppressors. But they cannot limit how many.
Yet that was their argument in Court. They actually asked the Judge not to return the weapon, because there were “too many of them.” They wanted the Judge to issue an order limiting the number of firearms a person in Fort Bend County can possess.
Fort Bend County Judge Tyra McCollum
Judge McCollum swiftly questioned the prosecutor on this and dismissed this argument. Prior to releasing the weapons back to my client, Judge McCollum wanted to know if any of the firearms were stolen or suspected of being used in a crime. The prosecutor did not have an answer to that question. So, Judge McCollum reset the case for the prosecution to give her the answer.
A second hearing was held before Judge McCollum. In this one the prosecutor advised the court that none of the guns were stolen or suspected to have been used in a crime. Judge McCollum responded with “So then given that information, does the State still have an objection to the release of these other than — I noted your concern regarding just the — by virtue of his possession of so many firearms. I noted your concern beyond that.” Now the Prosecution raised concerns about his possession of Short Barreled Firearms and the release of these to our client. Luckily our client had the federal stamps.
Yet the Fort Bend County District Attorney’s Office did not withdraw their objection to one person having 27 firearms, and adamantly did not want the weapons returned. Now the Judge had questions about the short-barreled rifles and the tax stamps. The Judge, again, reset the matter for the District Attorney’s Office to get her the answers.
Texas does not have Red Flag Laws, despite many on the Democratic side of the legislature trying to impose them. Twenty-two states do have them, such as New York and California. Mainly the blue states. These are laws designed to take your weapons without trial, based on allegations that you may be dangerous. But again, Texas does not.
Then, a Senior Prosecutor in the Fort Bend County District Attorney’s office started calling our office, wanting us to release our client’s HIPAA-protected medical records so they could see if he presented a danger. They had no evidence that he was a danger; they just wanted to look and make a Red Flag argument to prevent the return of the weapons.
At the third hearing, Judge McCollum issued an order returning all the seized firearms back to our client, pursuant to Texas Code of Criminal Procedure 18.19. It should be noted that Judge McCollum, prior to being elected to Judge of County Court at Law 2 in Fort Bend County, was the Juvenile Division Chief for District Attorney Brian Middleton. Our client took Judge McCollum’s order to the Fort Bend County Sheriff’s Dept., and they, without any objection, returned all the firearms to our client. Judge McCollum followed the law despite the District Attorney’s objections and she should be commended for that.
So, you might ask, why did the Narcotics Task Force take all 27 of these weapons from our client’s home in the first place? They made it clear it was for “safekeeping” in their report, and that they were not evidence of a crime.
That remains an unanswered question, the real question here. Why did the Fort Bend County District Attorney’s Office try to impose gun restrictions on a person who was entitled to possess those weapons? Is it the job of our District Attorney to impose gun restrictions without any evidence to support it, other than a flimsy argument that no one should be allowed to own 27 guns?