Guns, Property, and Public Nuisances: A North Austin Showdown
Gun rights activists up in arms over shutdown of gun show
More than 200 people gathered at Austin Police Department headquarters Jan. 25 to protest what they consider unconstitutional police action in shuttering a monthly North Austin gun show – an action they say infringes on Second Amendment gun rights. Protesters with Texans for Accountable Government, Ladies of Liberty Alliance, and followers of radio show host Alex Jones used dueling bullhorns – often simultaneously – to declare that the police action that earlier this month indirectly ended gun shows at the North Austin Event Center (formerly the Crockett Center) was an act of tyranny. "The answer to 1984," Jones exhorted the crowd, "is 1776."
While unilateral action by police to close down an otherwise legal gun show would almost certainly violate state and federal gun laws as well as constitutional protections, the situation that has put the monthly gun show on indefinite hold isn't so cut-and-dried. Instead, the dispute pits Second Amendment protections against state law that covers the abatement of a public nuisance – and the rights of a property owner to do with that property as the owner sees fit.
The gun shows have been taking place monthly under one promoter or another for more than a decade. According to TAG, Jones, and various online posts, the APD and the U.S. Bureau of Alcohol, Tobacco, Firearms and Explosives essentially directed H-E-B, the lessor of the property, to shut down the show. According to police, the decision to stop hosting the shows was actually made by H-E-B, as part of a nuisance abatement process begun by police in mid-2009. While working with federal agents in a long-term operation targeting illegal gun trafficking, Austin Police say they documented numerous problems connected with the event center gun shows, especially the ones hosted last year by Saxet Gun & Trade Shows, the largest gun-show promoter in Texas. There were at least eight arrests of felons and illegal immigrants, who are forbidden under law from obtaining or owning weapons. (Among these was the high-profile arrest of Austin boxer James Kirkland, arrested as a felon-in-possession after his girlfriend conducted a straw purchase for him in April 2009.)
The illegal sales documented by police were each made by unlicensed firearms dealers or private individuals, either inside the show or in the parking lot. While there is no law that prevents the private sale of firearms by individuals (unless the seller knows that the purchaser is prohibited), the pattern of illegal sales, the subsequent arrests, and the associated public safety concerns were, police say, a clear and ongoing problem. "I don't believe [the sellers] were intentionally committing criminal acts," said APD Detective T.J. Vineyard, who is part of the department's Firearm Review Unit, "but we have to address the issue of reckless and negligent" sales.
APD's Nuisance Abatement Unit began its own investigation. Meanwhile, management of the property, under a sublease with H-E-B (leasing in turn from landowner Wal-Mart), changed hands and the Saxet show was not asked back. Beginning last fall, Texas Gun Shows, a family operation run by 32-year-old Darwin Boedeker, rented the space for its monthly show.
By the time the abatement unit completed its work and called a meeting with stakeholders on Jan. 14, Boedeker's show had been operating out of the events center once a month for four months. During that time, Boedeker noted and APD confirmed, police did not make a single arrest inside or outside the show. Nonetheless, abatement actions attach to a property and not an individual – meaning that, ultimately, it is H-E-B's responsibility (under its own Wal-Mart lease) to ensure that no one uses the property for illegal purposes. Vineyard said that during the January meeting with H-E-B, former APD Officer Andrew Perkel (who now subleases the property from the grocery store chain), and Boedeker (who was scheduled to host his fifth show that weekend), police made recommendations to the grocer about how to address legal concerns without having to shutter the show. They recommended that the promoter hire security to monitor parking lot activity and that he require all private firearm sales to be completed by federally licensed sellers, who are required to conduct background checks on buyers.
Vineyard says APD did not mandate these as conditions of continuing the shows without police intervention. "They were just suggestions," he said, "not directions." H-E-B agreed with the suggestions and, via Perkel, said they would be made a condition of allowing gun shows at the site. Boedeker reluctantly agreed – with a scheduled show just two days away, he said, he felt there was no other choice; still, he didn't think the action was fair or even legal. He contends that APD wasn't even aware that Saxet, under whose promotion of the show all those arrests had been made, was no longer hosting the events. "They had no idea we were even a different show," he said. "That's what took me so off-guard." That's not true, says Vineyard. And although no arrests had been made in the months since Boedeker had taken over, police had "observed" the same pattern of problems previously seen at the Saxet shows.
Whatever the case, things did not end well. Although Boedeker had told his vendors that only licensed dealers would be able to sell firearms at the Jan. 16-17 show, one made a private sale to a man identified as an illegal immigrant. The purchaser was arrested, and the vendor was questioned and released. That was enough for H-E-B; they informed Perkel that for now, no gun shows would be allowed at the event center. "We have a commitment to our neighborhoods," said H-E-B spokeswoman Leslie Lockett. "There is a lot of pedestrian activity [at that site] and a ton of families with small children" in the neighborhood, prompting the grocer to "put on hold" any further shows "until we get more clarity" about what is going on at the site.
As word spread, in an online video vociferous radio showman Jones brandished a flier that Boedeker posted at the show regarding the new requirements, saying it was a mandate from APD and ATF. "This is tyranny; this is the end of America," he announced. TAG and its allies announced the APD protest. However, in stumping about the importance of constitutional rights, Jones, TAG, and even Boedeker seem to have overlooked the rights of the property owners – including the choice to not host a gun show at the site.
Erich Pratt, communications director of the national gun rights group Gun Owners of America, does see some cause for concern in the episode. He says this is the first instance his group is aware of in which a municipality has used state nuisance abatement laws indirectly to close a gun show. "From our perspective it seemed a bit heavy-handed," he said. The APD's recommendations "may be merely suggestions, but what happens if they don't comply?" Indeed, there is "no controlling law" in Texas or a federal statute that would mandate private gun sales be completed through licensed dealers. (That is the law in seven states, but not in Texas.) And when you consider that only roughly 2% of crime guns are purchased at gun shows, he said, the restrictions seem unnecessary. "We think this is a horrible precedent – a wink-wink, nod-nod that these are 'recommendations,'" he said. "And our hope is that this does not become the norm."
Boedeker is currently looking for another local site to hold his monthly show.