It was only moments after the young man entered a Texas shopping center carrying an assault-style rifle that terrified customers began frantically contacting the police. “Mall patrons and store workers were horrified,” court documents state. “Many calls were made to 911.” Officers rushed to confront him.

It was not August 2019 in El Paso, but December 2013 in Beaumont. Derek Ty Poe was charged with disorderly conduct for walking into the mall with an AR-15 strapped to his back.

Poe faced a minor charge. Yet the question of whether he had violated the law simply by frightening shoppers with his military-style rifle went all the way to an East Texas appellate court.

“It is ludicrous to expect that any person would know (he) was exercising free speech rather than putting people’s lives in imminent danger,” Jefferson County prosecutors wrote. “Anyone, including a terrorist intent on terminating innocent persons with extreme prejudice, could, without limitation, openly carry a similar weapon into a mall, a movie theater, or anywhere else where there are likely to be large crowds and within moments open fire killing dozens of people.”

In 2015, when Texas lawmakers approved the open carry of handguns, they decided any fear or confusion residents might experience at the sight of visible weapons was outweighed by the benefits of less-restrictive gun laws.

More Information Texas open carry Texas permits open carry of long guns, including assault-style guns, in public except in those places where it is specifically prohibited by law, including schools, polling places, courthouses and racetracks. No license is required. Private businesses that wish to ban them from their premises must post specific signs saying so. The open carry of handguns in non-prohibited public spaces by license holders has been legal in Texas since 2016. State law says the guns need to be secured in a hip or shoulder holster. All firearms are prohibited in bars.

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Yet, the use of military-style rifles and magazines in high-body-count mass shootings — and the fact that Texas now has seen three such incidents over the past four years — means their presence, especially, can inspire alarm.

Police admit it can be challenging to separate the good guys with assault-style guns from the bad. In 2016, Dallas police said a group of gun-rights activists carrying the weapons complicated their response to the shooter who used one to kill five officers.

“This is the first time — but a very concrete time — that I think a law can hurt citizens, police and not protect them,” then-Mayor Mike Rawlings said.

“Of course, normal individuals seeing that type of weapon might be alarmed,” El Paso Police Chief Greg Allen said in a news conference following the shooting that killed 22 there Saturday. But before he began firing, he added, the gunman was “within the realm of the law.”

Politicians haven’t directly addressed the issue. Even gun control advocates agree the use of assault-style weapons is in no danger of being restricted in Texas any time soon.

Into that vacuum, however, lawyers in a small number of low-level Texas court cases involving people publicly carrying the military-style guns have been quietly wrestling with the question of how to balance the threat and fear the weapons inspire with laws allowing them to be carried in public.

In a state that has steadily expanded the rights of gun owners, the cases represent some of the most candid and consequential discussions on their limitations.

“We live in increasingly dangerous times,” county prosecutors wrote in the Poe case. “Incidents ranging from mass shootings in elementary schools, high schools and college campuses, to movie theater massacres, have heightened awareness and concerns of the general public for public safety. One can easily understand the positions of both law enforcement and 2nd Amendment advocates.”

Feeling vs. safety

Overall, the use of assault-style weapons in homicides remains small. Yet some studies also suggest they are deadlier when used, with a greater likelihood of more people getting killed and injured. The shooter in last Sunday’s Dayton massacre killed nine people and injured 14 in only 30 seconds using an assault-style gun with a high-capacity magazine.

Beyond the statistics, at least one high court also found the public’s fear of the guns could be considered when limiting their use. In a 2015 decision upholding an assault weapons ban in the Chicago suburb of Highland Park, federal Judge Frank Easterbrook conceded there was mixed evidence the law would reduce violence.

But “if a ban on semiautomatic guns and large-capacity magazines reduces the perceived risk from a mass shooting, and makes the public feel safer as a result, that’s a substantial benefit,” he added. The U.S. Supreme Court declined to review the decision.

“The question of, ‘How do you accommodate people’s right to carry in public an instrument that is useful to self-defense, but also frightening to people is a tricky one,’” said Joseph Blocher, a Duke University School of Law professor who studies the Second Amendment.

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The Texas law that attempts to strike that balance is disorderly conduct — “intentionally or knowingly (displaying) a firearm or other deadly weapon in a public place in a manner calculated to alarm.” Derek Poe insisted that when he walked into Beaumont’s Parkdale Mall a few days after Christmas 2013 with his AR-15 he had no intention of alarming or threatening anyone. But after terrified shoppers called police, he was charged with disorderly conduct.

Poe argued the law was too vague. What was alarming to one person might not be to another. Local prosecutors disagreed, noting that — especially given recent events — when they saw such a gun in a crowded place, shoppers’ panic and a quick police response was understandable: “What are law enforcement and/or the general public to do when a person walks into a movie theater with an AR-15? Must a person wait to see whether the actor opens fire?”

Wayln Thompson, the Jefferson County assistant district attorney who prepared the filings, conceded there was no clear answer.

“Everything’s about context,” he said. “Some of that may depend on what part of Texas you’re in. And if you walked into a mall with a gun on your back today, it’s going to be different than if you walked into a mall a year ago.”

In 2016, the Ninth Court of Appeals decided the law as written was a reasonable way to protect citizens, and words such as “calculated to alarm” and “knowingly” weren’t too vague for a jury to figure out what they meant. In June 2017, a Beaumont jury took 10 minutes to find Poe not guilty of disorderly conduct.

Comparison to car

Yet three months ago, the state’s highest criminal court struggled, apparently for the first time, to reconcile the public’s perceived danger of guns with state laws allowing their open carry.

In June 2016, police charged Dai’vonte E’shaun Titus Ross with disorderly conduct for carrying an assault-style rifle in an East San Antonio neighborhood. Ross’ attorneys argued that because they didn’t describe how, exactly, that was “alarming” they had no idea how to prepare a defense. An appeals court agreed, finding the word was vague.

In their May decision, the nine judges at the Court of Criminal Appeals drilled into the meaning of the law’s individual words, as well, concluding in a 5-4 decision the law was adequate as written. But, while not addressing the fact that Ross’s gun was an assault-style weapon, several also struggled to reconcile the state’s open carry laws with a populace terrified by the sight of guns.

“While Texas is known for its many gun enthusiasts, it is common knowledge that many ordinary people, even in Texas, may become alarmed at the sight of a gun in public, regardless of the legal right to openly carry a firearm,” Judge Michelle Slaughter wrote. Although “generally caused by a person’s unfamiliarity with guns” and media coverage, “the Legislature’s decision to legalize open carry should not be interpreted as broadly indicating that Texas citizens are not alarmed at the sight of firearms in public.”

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Judge Kevin Yeary dismissed such fears, “especially here in the Lone Star State.”

“It should be no more alarming than the sight of a 3000-pound automobile proceeding down a city street at the lawful speed limit,” he wrote.

Still, without tweaks to the law, Slaughter worried it was still possible a person could be arrested for disorderly conduct for legally carrying a gun that nevertheless frightened someone. Mac Bozza, Ross’s attorney, said the decision did nothing to clear up when a gun-carrier was breaking the law — an increasingly crucial distinction considering recent events.

“It doesn’t address the concerns of society right now,” he said. “When we see someone carrying a rifle, we are forced to consider the possibility this person is going to start shooting.” Ross’s disorderly conduct case is pending.

No bad guns in Texas

The simplest way for people to know when the sight of a military-style weapon is cause for concern is if it’s displayed in a place where they are banned. Although a 1994 federal law prohibited certain assault-style weapons, Congress allowed the restrictions to expire in 2004. Since then it has been primarily left to individual states to decide how to regulate the guns.

Only six have banned them, according to the Giffords Law Center to Prevent Gun Violence. Nine legally limit the capacity of magazines, and six prohibit the open carry of rifles, including military-style guns.

Critics say such laws do little to protect citizens. Millions of the guns are already in circulation. A gun banned in one state can be purchased in a neighboring one. Even magazines limited to 10 or 15 rounds — the cap in states that restrict them — can be quickly ejected and replaced, barely slowing down a determined shooter.

(In Texas, individual private property owners can prohibit any guns on their property if they post a clear sign saying so, said Shannon Edmonds, staff attorney for the Texas District and County Attorneys Association, adding that legal placards forbidding handguns would not be sufficient. It’s not clear if the El Paso Walmart store had a sign; calls and emails to the company were not returned.)

Jerry Patterson, who as a legislator authored Texas’s concealed carry handgun law, said he understands the urge, in particular, to limit the number of rounds in a magazine. But, he added, “it’s impossible. And we should not waste any political capital passing a law that will not make us safer.”

In Texas, where enthusiastic support of gun rights generally is a prerequisite for winning elected office, most lawmakers have adopted the gun lobby’s argument that guns are tools and it is dangerous people, not specific weapons, that need controlling. When Gov. Greg Abbott convened roundtables following last year’s mass shooting at Santa Fe High School, none of the suggested reforms contemplated gun bans.

Alice Tripp, who has represented the Texas State Rifle Association’s interests at the Legislature since the Columbine High School shootings in 1999, said she could not recall any proposal to restrict the ownership or use of assault guns. “In Texas, one specific style of firearm has not been identified as a bad gun,” she said, adding that as a hunter she has used hers to kill feral pigs.

Even if one was proposed, “No one would have gotten excited about it because it never would have had a chance,” Patterson added. This year Ron Reynolds, a Fort Bend Democrat, introduced a resolution to “respectfully urge the United States Congress to pass stricter gun laws, including a ban on the sale of assault weapons.” It was never scheduled for a hearing.

Local gun control advocates concede they have not bothered to wage the assault gun ban battle, choosing instead to push for safer storage, better reporting and so-called Red Flag laws that allow authorities to temporarily remove guns from people thought to be dangerous. Even then, success is measured as much by the number of friendly bills filed or that receive a public hearing as how many actually become law, acknowledged Ed Scruggs, president of Texas Gun Sense.

“It’s undeniable at this point that the accessibility of these weapons must be addressed,” he said. “But state leaders first have to come to terms that guns do have something to do with gun violence.”