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Beiruty wrote:Steve,
Gun buster is not a 30.06 valid sign. What has to be proven is already proven by the post of gun-buster sign and not a valid 30.06 sign. It is like that Prosecutor has proven that offense happened (+1) but defense says, What is proven does not apply since posted gun-buster is not a valid 30.06 sign (-1). Net result is 0.

So why allow arrest if net result is 0 and in the US every suspect is assumed innocent until proven otherwise.
False arrest or arrest were there is defense to prosecution should never go on the criminal records, since such arrest have very negative consequences to the innocent people.

We allow the arrest because the crime occurred first. Think of the case of unlawfully carrying. It is generally illegal to walk around with a pistol. But, there is a defense if the pistol is concealed and the person has a CHL. So, what would happen when the computers are down and the officer cannot verify the CHL? Well, in the current system, the officer can make the arrest and the person goes free when he can prove he has a CHL. But the arrest would be just as valid as if the person did not have a CHL.

But, if we made proving the lack of a CHL part of the original offense, then the officer could not arrest anyone when the computers are not working. He could never prove that all of the elements of the offense were true since he could not prove the person did not have a CHL.

And while we are using the CHL laws and looking at minor things for our discussion, these same rules apply to major cases like murder. Self-defense is a justification to be proven later. But the officer can arrest when he can prove who committed the killing and he doesn't have to worry about the possible defense. If he had to prove every possible defense did not exist, we might not be able to ever make a criminal case.

The laws written this way also allow the police to make the basic case, and then only worry about the specific defenses that are raised by the defendant. I don't have to prove the person is not a CHL, security guard, traveler, police officer, engaged in hunting, etc. if I catch him with a gun. He simply has to prove the defense later.


As tot he arrests going on the record, this is a very real problem. The best we can do is allow for records to be expunged when there is no conviction within a time frame. A big part of this problem is the public condemnation for being arrested and charged. The public makes no real differentiation between arrest and conviction when they should. I think this is a relatively recent change in our society (last 50 years or so), starting with the concept of lifelong disabilities for being a convict.

sjfcontrol wrote:

srothstein wrote: And there is no defense that I am aware of for the no shirt signs. You can be arrested for criminal trespass if you violate that sign.

Seriously? As I see it, the "No Shirt, No Shoes, No Service" sign doesn't even say, "Don't come in here barefoot (or you're guilty of 30.05)", it says, "If you come in here barefoot, we won't serve you." If the management (or an officer) then tells you to leave, and you don't, THEN you've violated 30.05. But you've violated it because you've been asked to leave and didn't, not because you're barefoot and disobeyed the sign.

So are you saying that somebody can make ANY condition a violation of 30.05 by posting a sign? I can open a store with a sign "Women must wear clothing that covers their ankles." (or their face), and it would then be a 30.05 violation if any woman enters displaying those body parts? (Again, if they're ask to leave BECAUSE they've violated the sign, and don't -- that would be a violation, but disobeying the sign wouldn't be -- as I see it. Am I wrong?)

Yes, you are incorrect on your interpretation of the law. You are correct that ANY condition can be put on a 30.05 sign and be legally enforceable, with the exception of those protected classes that would make the sign a civil rights violation. For example, you could not post a sign saying "no women allowed" but you could post the sign that you mentioned. And if a police officer is on the scene, he could make an arrest of any woman in the building that was in violation of the sign. The manager would not even have to be present or ask the person anything, and the officer would not have to ask the manager if they wanted the person arrested. It is a crime being committed in their presence or view.

It is weird to some, but Texas is a state that is very big on property owner rights. well, up to a point anyway.

C-Dub,

The 51% law is written the same way. It is illegal for the CHL to carry there, but he should be found not guilty by using the defense of it is not posted.

Beiruty,

The reason the law is written this way, instead of saying something is not applicable, is to shift the burden of proof. As with all cases of self-defense, the act of trespassing is still a crime. The prosecution must prove the elements of the offense beyond a reasonable doubt. Then the defense gets a chance to prove its case, which may include the defense to the offense. But the defense must actually prove its case, such as the sign not being valid. It cannot just make the claim. And the defense has a slightly lower standard of evidence for a defense than an affirmative defense (which still seems backwards to me).

But the reason to write the laws this way is to say who must prove what before a conviction is made.

As for the gunbuster sign, it is written in section 30.05. The law says you cannot enter if you do not have the effective consent of the owner. One way the owner can tell you that he does not consent is to post a sign. There is no limit on what the sign can say or not say. So, a gunbuster circle means that no one can enter the premises with a gun. A "No shirt,no shoes, no service" sign means that you cannot enter barefoot or bare chested (though without pants may be legal). The law then provides for a defense to help you if you are a CHL with a gun. we are very lucky in Texas to have gotten 30.06 added in 1997. We are in one of the very few, if not only, states that makes the sign be that specific to bar a licensed handgun carrier. But the proof that the gunbuster is a valid ban is that this law existed as a ban between 1995 and 1997. The defense was added in 1997 also, but I do not know if there were any arrests or convictions in that two year period.

And there is no defense that I am aware of for the no shirt signs. You can be arrested for criminal trespass if you violate that sign.

C-dub,

The way the law is worded, carrying past a gunbuster sign is illegal for everyone. The law then specifies that there is a defense to prosecution if the reason for banning entry is carrying a pistol and the actor has a CHL for the pistol. This means that you can be arrested and charged for 30.05 violations for carrying past a gunbuster sign, but you will win in court when you show your CHL.

Scott,

You are incorrect on the way the law is worded. While the defense to prosecution has the effect of making the law meaningless to a CHL, it is still a technical violation to carry past it. And in any case of criminal trespass, the posting is enough to make the offense. You do not need to be asked to leave under the law. I will stipulate that this is true in normal police practice, but it is not the law. Just consider the way it would work if you were caught at night in a farmer's field when no owner was there. All the law requires is for you to cross a fence that is designed to keep animals in ro people out and the offense has been committed. A police officer could arrest you on sight in a field that has a fence around it without having a request from the owner. The law works the same way in all trespass cases, so the sign is all that is needed.

But, it is important to keep in mind the academic discussion of what the law says as opposed to how it is practiced in real life situations. In real life, you almost always have to be asked to leave while the officer is there and then still refuse.