The city of Dallas and the State Fair of Texas are facing mounting pressure to reverse a new policy banning nearly all guns from the fair this year.
The fair's security overhaul came in response to a shooting at last year's fair that injured three people. In the latest turn, Attorney General Ken Paxton has called the gun ban illegal — and he says the clock is ticking for the city of Dallas to act before he pursues legal action.
Meanwhile, fair organizers say they're well within their rights as a private entity to ban firearms.
So who's right? And will it ultimately matter if Republican state lawmakers are committed to passing legislation next year that removes remaining limits on where licensed gun owners can take their weapons?
“What the State Fair of Texas does has enormous symbolic value, even though it's just another business among many, and Mr. Paxton perceives that,” said David Coale, a Dallas appellate attorney. “And I think the fair perceives that. I think they know that what happens in this case is gonna be relevant to business owners across the state.”
Who controls Fair Park?
The city of Dallas, which owns Fair Park, entered into a 25-year contract with the State Fair approved in 2002 to lease the park to fair organizers every year for the fair’s 24-day run.
The State Fair of Texas is a private nonprofit organization, with the fair itself being one of the organization’s biggest fundraisers every year.
According to Texas Government Code, a state agency or political subdivision — like Dallas — can not ban a licensed gun owner from property that is government owned or leased, unless it’s a protected gun-free zone such as a school or courthouse.
“The rule in Texas is, with a few exceptions, you can take guns anywhere that you want,” said Mirya Holman, a University of Houston political science professor who studies state policymaking on contentious issues like gun rights. “And private entities can say, 'we don't let firearms on this property,' because they're controlling their own property.”
Paxton cited this law in arguing Dallas is responsible for the gun ban, which he said makes the new policy illegal. That has to do with the concept of preemption, Holman said — the idea that the state’s authority supersedes local governments.
“Paxton is threatening the city of Dallas with fines for not allowing firearms onto the State Fair property,” Holman said. “That's a more rare form of preemption that exists, but it is something that the state of Texas has threatened to use before, and it means that local government officials would themselves pay a financial price for engaging in this action.”
But State Fair organizers maintain that as a private nonprofit they’re legally permitted to enforce the new firearm policy, and they’ve given no indication of backing down.
Dallas officials say they’ll respond to Paxton’s warning accordingly.
In a statement via his spokesperson, Dallas Mayor Eric Johnson declined to comment on pending litigation but said he has “absolute confidence in the Dallas Police Department and in the organizers of the nonprofit State Fair of Texas to keep people safe during the largest annual event in Dallas."
Paxton's legal threat comes amid growing pushback to the policy from Republican lawmakers and gun rights groups like the NRA.
Seventy GOP state politicians and candidates issued a letter criticizing the fair and demanded organizers reverse the ban. Two of those lawmakers also requested Paxton weigh in with an official opinion.
Dallas Deputy Mayor Pro Tem Adam Bazaldua outright condemned those lawmakers, telling Spectrum News their stance was "shameful."
“I hope these state officials will better use their time to address critical needs in our state instead of playing political games and dragging innocent parties along with them,” Bazaldua told the outlet. "To the State Fair of Texas, Thank you for prioritizing the safety first for our fairgoers and making necessary changes to your policy to help accomplish that goal."
What does the law say?
Texas Penal Code lays out the legal framework around concealed and open carry. It’s a criminal offense to carry a firearm on a property without the “effective consent” of the property owner, up to a Class A misdemeanor.
The penal code doesn’t really define “property” or “owner,” so the question of who has the right of consent over allowing guns on a property is complicated, said Coale, the appellate attorney.
“We have a situation where, in good faith, you have two different entities that can argue they’re the owner of this property for purposes of denying effective consent,” Coale said.
Lawmakers may not have had this specific situation in mind when crafting that law, he added — and Paxton’s office said as much in an August 2016 opinion about a similar issue concerning a complaint over two unnamed nonprofits with offices on government property.
Paxton concluded a political subdivision wouldn’t be liable for signs banning handguns handguns on government-owned property leased to a private business.
He reiterated that same position in November 2016, ruling that the Fort Worth Zoo could legally ban firearms despite being on public land.
The attorney general also found that a license holder who took their gun onto that kind of property wouldn’t be subject to criminal penalties.
Those opinions aren’t legally binding, however, and it'll be up to the courts to decide.
“The real fix here is for the Legislature to figure out what it wants to do about this, and either put a definition of 'owner' in that includes, excludes or does something else with Fair Park,” Coale said.
That won’t happen until at least next year’s legislative session in January. In their letter to the State Fair’s board of directors, the Republican state lawmakers and candidates indicated they may try to change the law to ensure those with a license to carry can bring their weapons onto nearly all public property.
Legislators, the NRA, Gun Owners of America and other gun rights advocates say gun-free zones are more susceptible to crime as they present less of a threat to attackers. Armed citizens, they say, have proven effective in stopping active shooters.
But there's little evidence to support that position, according to Susan Liebell, who teaches political science at St. Joseph’s University in Philadelphia and specializes in the politics of gun rights.
That argument also doesn't address who exactly is kept safer by guns, Liebell said. Research shows domestic violence against women is made worse when guns are present, and things like "stand your ground" laws that strengthen self-defense protections are often enforced with racial bias.
The push for less gun regulation is a stance that’s only become more extreme over the years, she said.
“Not only is it extreme in Constitutional, scholarly, historical terms, it's extreme in terms of what the American public believes,” Liebell said. “The American public does not believe in an unrestricted right to firearms.”
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