Firearms Owners Against Crime
Institute for Legal, Legislative and Educational Action
Institute for Legal, Legislative and Educational Action
Thanks to a judge’s order late last month, carriers of concealed handguns in Texas are now a protected legal class. They can defend themselves against physical threats, but it seems they need all the help they can get against profit-minded lawyers.
Harris County civil court Judge Mike Miller ruled on July 27 that holders of Texas’s concealed-handgun license, or CHL, can band together in a class-action lawsuit against Texas Law Shield, a legal firm that’s ensconced itself deeply in the state’s gun-owning community — possibly in violation of the law, according to Texas Lawyer.
For a flat annual fee, Texas Law Shield says it will defend members against any civil or criminal charges that arise from their use of a gun. But now TLS itself stands accused of “barratry” — an archaic term that covers a host of legal abuses, from ambulance-chasing to excessive litigation to paying to receive clients.
It’s that last proviso that has TLS in hot water: A 2013 lawsuit by two Texas gun owners alleges that “most concealed handgun license (CHL) classes in Texas include a ‘pitch’ by a salesperson for Texas Law Shield, who encourages students to sign on to Texas Law Shield at a cost of about $130 a year for ‘peace of mind.'” In return, the suit alleges, TLS pays about 500 facilities that offer CHL courses — a prerequisite for anyone seeking a carry permit in Texas — $30 for each of their students that sign up for the company’s legal service. (The plaintiffs’ attorneys sought to make their suit a class action, inviting other CHL students who’d been solicited by TLS to join and receive compensatory damages from the company — whether they’d signed up for TLS’s services or not. Judge Miller approved that plan.)
TLS charges its members $131.40 a year if they have a concealed-carry license, and $89 a year if they don’t. But what members actually get in return — and who they’re getting it from — has aroused plenty of curiosity and skepticism among gun owners.
What exactly is TLS? It was founded in 2009 by a group of Houston lawyers after a public uproar over the case of Joe Horn, a 61-year-old Pasadena, Texas, man who fatally shot two Afro-Latino burglars, possibly in the back, outside his neighbor’s house after 911 dispatchers had told him not to interfere. A grand jury cleared Horn of any charges, but mounting a defense left Horn penniless and made his case a cause célèbre among Lone Star gun enthusiasts, who feared their use of deadly force could land them in court.
That left an opening for TLS to offer legal protection for uneasy gun owners. The company’s site claims that it’s not a law firm, but a “legal services provider.” Still, the company does employ six of its own lawyers to represent Houston-area members. The result is plenty of confusion even among well-informed gun owners as to what membership entails. Many who ask about TLS on Internet gun forums assume it’s insurance for those charged with a crime or sued in civil court; the NRA offers such an insurance policy that reimburses users for certain court expenses. But TLS refers its members directly to attorneys who handle their legal problems, purportedly at no extra cost. (A TLS spokesperson was not available for comment.)
“It is not a prepaid legal service, it is truly a retainer for a lawyer,” claimed Brian Mobley, a concealed-carry trainer in Texas who invites TLS to “discuss part of the Texas penal code in my CHL classes.” That distinction is important to many would-be members, as “prepaid legal services” have often been accused of bait-and-switch style scams, racking up fees for users.
But Charles Cotton — the controversial NRA board member and Texas attorney who helps run Texas CHL Forum, the comment board that Mobley commented on — insisted Mobley was mistaken. “Why do you say it’s not prepaid legal?” Cotton asked. “It is my understanding that the fee paid to Texas Law Shield is a flat fee annually. It’s not a retainer unless it’s a deposit against future billings.” Cotton added that he wasn’t telling readers whether or not to buy TLS’s coverage, “but if people are going to pitch these programs here on TexasCHLforum, I want to make sure our Members are thoroughly informed.”
TLS’s “testimonials” page contains no firsthand accounts of the company lining up a legal defense for its members. It includes four generic “incident reports” claiming TLS got members out of possible criminal charges, but the only direct quotes are from members who haven’t needed legal help. “After seeing what my friend went through after shooting someone in self defense [I knew I needed] Law Shield, states Kathy M. of Willis, Texas, in a typical quote.
But does she need it? That’s not entirely clear. Texas is one of many “stand your ground” states that offer civil immunity and a high threshold for criminal prosecution when self-defense is claimed. And the gamut of cases TLS covers is frustratingly narrow. “Our program covers the ‘use’ of all legal firearms,” the company’s FAQ states. What does that mean, exactly? TLS presents its hard-to-find contract terms to would-be members only after they start the application process, but it’s full of ambiguous clauses and opt-outs for the company.
TLS defines coverage of the “use” of a firearm as:
Any incident where the Legal Service Contract Holder either discharges or displays a firearm for the purpose of using the firearm as a weapon to stop a threat, whether the Legal Service Contract Holder pulls the trigger and discharges the firearm or not. This term does not include taking the firearm to a location that is prohibited by federal, state, or local law, negligent or unintended discharges, or negligent or unintended displays.
That seems straightforward enough: “So if you’re not using your firearm to stop a threat, you are not covered,” Mark Bennett, a criminal defense attorney based in Houston, writes on his legal blog. But that’s a huge potential problem for members, he adds: “Often in a gun case the central issue is whether you are using your firearm to stop a threat.” Imagine, for example, a licensed gun owner like George Zimmerman, who was charged with murder after shooting Trayvon Martin to death. Zimmerman claimed he was defending himself against an assault from Martin, but the criminal charges against Zimmerman turned precisely on whether or not he was justified in perceiving a threat. So a TLS member could conceivably find himself in a catch-22 where the charges against him — the very charges for which he hoped TLS would assist him with — exempt TLS from bankrolling a defense.
“If Texas Law Shield looks at the case … and concludes that you were not justified in using your weapon, they can deny coverage, leaving you to hire a lawyer.” Bennett writes. “Texas Law Shield looks to me like a sucker’s bet.”
About the only thing that’s clear is TLS’s full-court press to snag paying members. The Texas CHL forum is packed with commenters who recalled receiving the company’s high-pressure spiel in their licensing classes. “I was sitting next to a member of the Dallas SWAT team in my CHL class … and when the TLS came in and made their pitch he was very against it,” one commenter volunteered on a Texas Gun Talk forum. “He claimed that the way it was presented to us in class that TLS was ‘fear mongering’ and taking advantage of people who may be less experienced with guns. (for the record their pitch made it seem like if you did not buy into their system you would be screwed if you ever used your weapon or if anyone ever found out you had a CHL and carried a weapon).”
Those tactics are precisely why TLS is in legal hot water. Texas approves 250,000 or so CHL holders to carry guns each year. If just a fraction of the ones who sat through TLS’s in-class solicitations agree with the plaintiff’s lawyer that the company used “an underhanded means to try to attract their business,” TLS could end up paying all those gun owners millions in penalties.
TLS has retained an outside law firm to defend itself against the pending class action. “The judge is simply wrong for a variety of reasons, and we are going to appeal it,” the company’s attorney told Texas Lawyer.
It’s nice to have that option: Under the terms of TLS’s contract, the company doesn’t have to cover any of its members’ own appeals.
http://www.thetrace.org/2015/08/texas-law-shield-concealed-carry-insurance-class-action-lawsuit/