This Isn’t a Gun Case

bellcoIt took Jim Nichols’ prosecutors and handpicked judge two trials, but they finally managed to craft such a narrowly written jury charge that I was found guilty of violating Texas Penal Code, Section 38.15 “Interference With Public Duties.”

A person commits an offense if the person with criminal negligence interrupts, disrupts, impedes, or otherwise interferes with…a peace officer while the peace officer is performing a duty or exercising authority imposed or granted by law.

This begs a very serious question: what “duty” or “authority” was the officer performing? Is it the duty or authority of Temple Police Officers to disarm law-abiding citizens? If so, who granted this permission? Some may say that his duty was responding to a call from a concerned citizen. If that’s the case, why didn’t the officer identify that as the reason for stopping me? Are officers allowed to just walk up, steal personal property, and THEN explain the purpose? The Texas Constitution sure doesn’t grant this authority:

Sec. 9. SEARCHES AND SEIZURES. The people shall be secure in their persons, houses, papers and possessions, from all unreasonable seizures or searches, and no warrant to search any place, or to seize any person or thing, shall issue without describing them as near as may be, nor without probable cause, supported by oath or affirmation.

Sec. 10. RIGHTS OF ACCUSED IN CRIMINAL PROSECUTIONS. In all criminal prosecutions the accused shall have a speedy public trial by an impartial jury. He shall have the right to demand the nature and cause of the accusation against him, and to have a copy thereof.

Sec. 19. DEPRIVATION OF LIFE, LIBERTY, ETC.; DUE COURSE OF LAW. No citizen of this State shall be deprived of life, liberty, property, privileges or immunities, or in any manner disfranchised, except by the due course of the law of the land.

So, when Officer Steven Ermis sought to steal my personal property without probable cause did I really interfere with a duty? Without explaining the “nature and cause of the accusation against [me]” where does he get his authority to infringe on my constitutional right to my possessions? Obviously, it was found out during the course of the trial and AFTER I was placed under arrest and supposedly resisted or interfered that a phone call was made. Is it the policy of Bell County and the City of Temple to assume that citizens are aware of these calls made into the police department or is it common sense, common decency, and just common respect to explain immediately why an encounter is taking place?

This is important because Officer Steven Ermis violated his own General Orders Manual during my stop:

Chapter 525.02 Explanation to Citizens
A. Officers shall act with as much restraint and courtesy towards persons interviewed, stopped or arrested as is possible under the circumstances.
B. The initiating officer shall explain the reason for the contact and the purpose of anticipated police action as soon as is practical.
C. Officers shall identify themselves when they initiate the above listed citizen contacts.

Here is the dashcam footage from both officers and the video my son took. You tell me if this was done.

Looks like Officer Steven Ermis can’t obey a single verse in his own General Orders Manual. On the stand, Ermis testified he didn’t have an opportunity to do this. Yes, under oath, Officer Ermis stated that prior to getting out of his car, prior to stopping, prior to approaching me, as soon as he approached me, while he was questioning me, and prior to taking my gun he didn’t have time to 1) identify himself, 2) explain the reason for the contact, or 3) treat me with restraint and courtesy.

Bell County Attorney Jim Nichols and his henchmen made very clear during both trials that my case was NOT about gun rights. Of course, they said this while entering into evidence my two lawfully carried firearms. They said this while having Officer Steven Ermis testify how quickly I “COULD HAVE” used my weapon to commit some fictitious mass murder. They said this while showing maps depicting the “close” proximity of a school (it was a Saturday), a children’s hospital (which actually wasn’t even open yet at the time of my arrest), and the regional airport (which I was walking away from at the time of my arrest and which I live literally ten feet from anyhow) hoping that highlighting these areas will bring to the jury’s mind recent shootings around the country and insinuating that I was a threat. They said this while refusing to return my guns or even my HOLSTER.

Elected Bell County Attorney Jim Nichols offered me several plea deals over the course of the past several months in this “non-gun case.” One of them was to plea to a Class C misdemeanor of “criminal attempt”, Texas Penal Code Section 15.01:

Sec. 15.01. CRIMINAL ATTEMPT. (a) A person commits an offense if, with specific intent to commit an offense, he does an act amounting to more than mere preparation that tends but fails to effect the commission of the offense intended.
(b) If a person attempts an offense that may be aggravated, his conduct constitutes an attempt to commit the aggravated offense if an element that aggravates the offense accompanies the attempt.
(c) It is no defense to prosecution for criminal attempt that the offense attempted was actually committed.
(d) An offense under this section is one category lower than the offense attempted, and if the offense attempted is a state jail felony, the offense is a Class A misdemeanor.

In other words, Jim Nichols wanted me to plea to a crime that when I went on a father/son hike with my son I was really intending to commit some crime. Under this statute, when I left the house that Saturday morning on March 16th, I was fully intending to “interfere with public duties”. Exactly how I was supposed to know that I’d be interfering, I have no idea. In addition to this plea, I would pay a $500 fine and agree to surrender my firearms. Naturally, I said “hell no” on all counts.

The next plea deal I was offered was to again plea to 15.01, write an apology to Officer Steven Ermis and the City of Temple in the local paper, and could have my guns back if I agreed to leave Bell County. Seriously! Elected Bell County Attorney Jim Nichols actually made this offer that would require me to leave not only my birthplace, but where my family has been farming for four generations – probably longer than Nichols has been in this county! My response was a resounding…..let’s just leave it at an impolite, “NO!”

Bell County has been playing these games for quite some time – taking away firearms after arresting troops and residents on bogus charges. They convince these people to plea out, pay a small fine, and surrender their firearms. Elected Bell County Attorney Jim Nichols knows that the only way he can disarm Texans is through their cooperation.

In fact, on the Texas District & County Attorneys Association website, they make it quite clear how prosecutors can disarm the public:

In any case, if the prosecutor does not want a weapon returned to the defendant, the best practice is to have the defendant agree to forfeit the weapon as a part of the plea agreement. Language can then be included in the judgment ordering forfeiture to the state for destruction to avoid the inefficiency of the court having to create a separate order, have another hearing at a later date, and having to make findings based upon little or no evidence related to whether the weapon should be returned.

Boy does Jim Nichols love getting defendants to surrender their rights and weapons! For most people, taking this plea is a no-brainer: pay a $500 or so fine, forfeit your $300-800 firearm, and go about your life. After all, it would cost upwards of $20,000 fighting the county for your innocence. Justice is expensive – and elusive in Bell County.

A few weeks ago, I filed a motion with the County Clerk to have my guns returned to me under Texas Code of Criminal Procedure Section 18.19 is very clear about the disposition of weapons seized during an arrest after a verdict:

Section 18.19(a) Weapons seized in connection with an offense involving the use of a weapon or an offense under Penal Code Chapter 46 shall be held by the law enforcement agency making the seizure.

Why do I highlight the “or” part of the narrative? Because in Elected Bell County Attorney Jim Nichols’ response to my motion seeking the return of my firearms states:
Also on December 5, 2013, Defendant filed with the Court what appears to be a pro se demand for the immediate return of his weapons and related evidence. Defendant cites and quotes Article 18.19(d), Texas Code of Criminal Procedure, as authority for his position; however, since Defendant was not convicted under Chapter 46 of the Texas Penal Code, this subsection is inapplicable. Additionally, this subsection is inapplicable given the current status of the case.

Notice how Assistant County Attorney John Gauntt, Jr. completely ignores the first part of Section 18.19(a) and jumps directly to the Chapter 46 exception. One positive note in Gauntt’s response is where he declares “the State has not filed for forfeiture, nor does the State intend to seek forfeiture of the items in question.”

But remember, “this isn’t a gun case.”

7 Comments on “This Isn’t a Gun Case

  1. I just came across this story today. Let me just say that I am beyond disgusted that the officer, not only detained you illegally, but to then lie about the confrontation. This is happening all too often. I support police officers and I’m grateful their out there protecting us. It’s awful that so many of them are being shot dead and our president can’t even bring himself to care enough to even hold a press conference over it. But you know, there are bad cops. There are cops who have an ego problem and who think they’re above the law. In those instances, justice should come through on behalf of the victim. I saw comments that you should have just shut up and complied, but I’m gonna be honest. That horrible excuse for a cop, never even gave you that chance. Once he overreacted by pulling his gun and throwing you on the hood of his car, there wasn’t any playing nice. That cop escalated the situation and couldn’t take it back. So his only option was to just keep up the farce. It’s sad that this happens. My husband and I are buying guns very soon. We’ve always said we don’t want guns in our home with the children, but seeing the govt totally ignore our rights, there’s no other option for us. We’re going to arm ourselves and defend ourselves when our country goes down the shit hole. Which is not too far off from now.

  2. The police are scared to death of law abiding citizens with guns. He never said why he stopped you, then grabs the weapon. You acted appropriately. I hope you fight this as far as you can. As a vet, I thank you for your service.

  3. Very sorry this happened to you. I’ve walked around with a rifle many many times all over several states on hikes out in the country. Sometimes I ended up walking down roads. I can’t imagine that something like this could happen and the law enforcement officer got away with all this wrong doing? What is happening to our country?
    My training was unless the police suspect you of violating the law they have no right to interfere with you in anyway. Apparently, from the President on down to the police in the field there is no Constitution anymore.

  4. The first question is not what duty but whether he has authority to exercise the duty. For the law to act it has to gain jurisdiction, both physically and over subject or content. Physical is nearly a no brainer and can be determined by a map and the described area. There is a boundary.

    Subject jurisdiction works the same way, it has boundaries. Without these boundaries a person could be arrested for jay-walking then tried for murder

    For the police officer to gain jurisdiction over the subject matter he needs for you give him permission, have a warrant, or have probable cause you have committed a known crime or he believes a crime will be found.

    None of those thing existed, so it is impossible he could be carrying out any duty because he does not have jurisdiction over any illegal activity, a warrant, or your permission

    And since he had no duty to perform, it is not possible for a jury to find a crime, and they must be acting on orders to violate your rights

    You need to take this as far as you need on appeal to get it over turned

    Then you can sue both for the arrest and the miscarriage of justice in the trial

    If you sue with the conviction it will be used as evidence your claim is not valid and may not even be heard. However, if it is, you will need to then both prove the conviction was wrong, as well as the charge. Fighting a war on two fronts is usually not a good idea

    Spend all your money on appeals. This is a blatant abuse of the law and a miscarriage of justice

    And no, am not a lawyer. If I was a lawyer I would tell you the legal system does not deal in right and wrong, logical or illogical but how lawyers and judges can make the most money, and you are most definitely a threat to their paychecks because once you get this over turned there is not going to be enough money in the city coffers to pay their retirement.

  5. If people are reluctant to think Officers don’t fabricate arrestable offenses then they ought to take a look at this:

    This happens all too often, and I think this is the crux of the issue with Mr. Grisham. There was an Officer in Washington state that had 123 complaints filed against him for abuse of his authority, 20 of which were verified. TWENTY. He was finally let go, but for crying out loud how insane is it that it takes TWENTY verified instances of abuse on his part before he’s done?

  6. If the adjudication of this case in is still on-going, it will not be proper for me to make comments touching the material particular because it will be tantamount to “SUBJUDICE.” That is contempt of that honourable court
    > Here in Nigeria the Police Officer reserves the right to intercept and arrest any person whom he suspects upon reasonable grounds of committing, or attempting to commit an offence in his view, or presence whatsoever; or
    > Whom he sees bearing fire-arms without a valid fire-arms licence;
    > It is also enshrined in the Constitution that an officer making an arrest must disclose the nature of the offence for which the suspected criminal violator is charged as soon as practicable;
    > The suspect must be given all his fundamental rights to either enlist the aid of a lawyer, and/or receive medical attention, as the case may be ;
    > And he must not be restrained for more than twenty-four hours at the Police station; ; > The detention register must be updated and counter-signed by the Magistrate, or a Justice of the Peace living in that locale, otherwise it becomes a case of an unlawful arrest and detention;
    > Here in Nigeria , also, the law enforcers can, lawfully, confiscate any unlicensed fire-arms pending trial;
    > The Police also have the right to seize the exhibit firearms at the time of the arrest and after trial by leave of court;
    > Finally, anybody who resists arrest of a police officer whether, or not ,on warrant after disclosing his identity and purpose is subject tothe law, and such a misdemeanour is actionable per se. Thanks.
    — Mike D.

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