Hand on open carried gun

[Javier730]

I used this at a Valero last night. There was two guys standing by the entrance asking for money. I parked by the pump and began using my debit card to fuel up. Both men started walking in my direction. Before they could even reach my truck I said to them, "Im not gonna give you any money." One of them walked back toward the store and the other kept approaching. I quickly went from concealed carry to open carry and said loudly, "STAY BACK!". The guys eyes opened up he spun around and sprinted back to his buddy. I then switched back to carrying concealed and continued fueling up all while keeping an eye on the two guys.

Thats the first time I have ever open carried. This also happened in San Antonio. We have always had a problem here with beggars but now they seen to be approaching in twos.

This could be viewed as illegal according to the Texas Penal Code (thanks for pointing that out Keith B, it may have saved me from hiring an attorney one day).

Sec. 42.01. DISORDERLY CONDUCT. (a) A person commits an offense if he intentionally or knowingly:
.......
(8) displays a firearm or other deadly weapon in a public place in a manner calculated to alarm;
......

Ive heard of people reaching for or even unconcealing the pistol and grabbing it (before open carry had passed and on this forum) when being approached by a panhandler or after a panhandler doesn't get the point that they are getting a little to close for comfort. I figured with open carry legal now, I could "switch" from concealed to open when ever I chose. But since this disorderly conduct section is in there about displaying a firearm or other deadly weapon in a public place in a manner calculated to alarm, I have decided I will switch to open carry in my truck when getting ready to fuel up.

I never even thought about open carrying nor will I go about my day open carrying. Like I mentioned in another thread, tiger1279s post made me consider trying it at the gas pump.

I only conceal carry, but the last time I was approached while pumping gas I just pulled back my shirt revealing my weapon. The guy backed off. I like being able to show the weapon at times and not have to worry about breaking the law.

I tried it and it worked, but since it could be considered illegal, I will not do it again.

My question is, what could be considered displaying a firearm or other deadly weapon in a public place in a manner calculated to alarm while open carrying. Could gripping an openly carried pistol, like LEOs sometimes do when approaching vehicles during traffic stops, be considered disorderly conduct? How about resting a hand on the pistol, like LEOs do sometimes when they are having a conversation? How about with a situation like mine where a panhandler is approaching, ignoring the fact he was told not to get any closer?

I am by no means trying to make people think I'm a LEO or intimidate the public. I am not gonna go around gripping my pistol while open carrying. I don't even plan on open carrying other than at the pump. All I want to do is keep panhandlers away and make any one of them approaching me as uncomfortable as they make me, all while complying with the law.

Thanks.

[Bryanmc]

Someone running around in public wildly waving or displaying a weapon is alarming. I would say what you did was attempting to deter or warn. I think you're safe, but IANAL.

[Glockedandlocked]

If you were in a situation where you could articulate fear of bodily injury, the threat of force is allowed. By showing that you were armed and having a grip on the pistol I would consider that a threat of force.

[zimmerdesignz]

Sec. 9.04. THREATS AS JUSTIFIABLE FORCE. The threat of force is justified when the use of force is justified by this chapter. For purposes of this section, a threat to cause death or serious bodily injury by the production of a weapon or otherwise, as long as the actor's purpose is limited to creating an apprehension that he will use deadly force if necessary, does not constitute the use of deadly force.

So do you consider the situation to have elevated to where you would be justified with using force?

[RedRaiderCHL]

I am currently going through a peace officer academy and I do not think what you did was considered disorderly conduct. I believe that statute was more for the individuals who decide to become irate and wave a gun around with no muzzle discipline or for individuals who draw a weapon illegally when there is no present threat. Seeing as there were two of them I feel you were justified initially. However, depending how far away the second individual was from you when he kept walking towards you I would have probably instructed him one or two more times to "stay back!" before I would have gripped my weapon.

of course, I open carry so they might not have approached me to begin with haha

[Oldgringo]

Do what you gotta' do. Just don't be a swaggering, attention seeking, arrogant, loudmouth anal vent about it. That's my policy, YMMV.

[SA_Steve]

Is is illegal to tell someone doing an unwanted approach that you are carrying, if you are CC ? My LTC instructor said it illegal, but she said several incorrect things.

[loktite]

SA_Steve :

IMO, it would be the same as showing your gun -- threat of force.

[Oldgringo]

Is is illegal to tell someone doing an unwanted approach that you are carrying, if you are CC ? My LTC instructor said it illegal, but she said several incorrect things.

You are there, you're CHL Instructor is safely home at home. When seconds count, the police are only minutes away. What do YOU do? Be calm, be rational and...Just do it!

[hovercat]

IMO, that was not a beggar heading your way. It was a disreputable person coming at you in a threatening manner.
One way, to a jury, you knew that he was only going to ask for money and just did not want to deal with him.

[Excaliber]

I am currently going through a peace officer academy and I do not think what you did was considered disorderly conduct. I believe that statute was more for the individuals who decide to become irate and wave a gun around with no muzzle discipline or for individuals who draw a weapon illegally when there is no present threat. Seeing as there were two of them I feel you were justified initially. However, depending how far away the second individual was from you when he kept walking towards you I would have probably instructed him one or two more times to "stay back!" before I would have gripped my weapon.

of course, I open carry so they might not have approached me to begin with haha

I very much agree with the warning tactic, but I use a stronger command: "Stop - don't come any closer!" loudly enough for others nearby to hear and I emphasize that with an upraised hand that shows up well on video. This usually results in surprise and sometimes some blue language from the individual, but they usually don't advance further and they back off. If they don't back off right away but stop and deliberate because blood alcohol levels around 3.0 slow down thinking considerably, I sometimes tell them that their spidey sense is tingling for a reason and is right when it tells them that moving forward is a really bad idea. If they did continue to advance after that, my second direct warning would be: "Stop - If you come closer I will treat you as a threat" with another upraised "stop" hand. If he continues to approach, I have good, articulable reason (and video evidence if I am at a gas station or other CCTV equipped venue) to believe he is a threat and will manage him accordingly.

I also like "I'm not going to give you any money" because it clearly ends the justification for an approach under a lawful circumstance and will add this to my script.

[Tracker]

Put this in perspective: you tell someone approaching you to stay back, they keep coming, so you tell them you have a gun or you go to OC with the purpose of intimidation...with someone who needs to be intimidated.

Now read this quote from the news report of the Lubbock Catholic Church shooting Sunday:

http://www.everythinglubbock.com/news/l ... ide-church
"Judy Garcia started dating the shooting victim, Orestes “West” Garza, after the divorce. Judy Garcia told Lubbock Police that within the last two weeks Pete Garcia left her messages that he purchased a firearm and he was “going to fix the problem.”

Judy Garcia told police that she in fact reported these messages to LPD when they happened and she reported that Pete Garcia was seen driving near her home several times. According to the warrant, she was told there would be an investigation but “nothing more could be done.”

If this guy wasn't subject to an arrest for his intimidation why should you have been since you didn't initiate the exchange and was trying to mind your own business

[Excaliber]

I am currently going through a peace officer academy and I do not think what you did was considered disorderly conduct. I believe that statute was more for the individuals who decide to become irate and wave a gun around with no muzzle discipline or for individuals who draw a weapon illegally when there is no present threat. Seeing as there were two of them I feel you were justified initially. However, depending how far away the second individual was from you when he kept walking towards you I would have probably instructed him one or two more times to "stay back!" before I would have gripped my weapon.

of course, I open carry so they might not have approached me to begin with haha

I very much agree with the warning tactic, but I use a stronger command: "Stop - don't come any closer!" loudly enough for others nearby to hear and I emphasize that with an upraised hand that shows up well on video. This usually results in surprise and sometimes some blue language from the individual, but they usually don't advance further and they back off.

If they don't back off right away but stop and deliberate because blood alcohol levels around 3.0 slow down thinking considerably, I sometimes tell them that their spidey sense is tingling for a reason and is right when it tells them that moving forward is a really bad idea. I know their spidey sense is tingling because they're not seeing signs of fear, submission, or compliance that they expect.

If they did continue to advance after that, my second direct warning would be: "Stop - If you come closer I will treat you as a threat" with another upraised "stop" hand. If he continues to approach, I have good, articulable reason (and video evidence if I am at a gas station or other CCTV equipped venue) to believe he is a threat and will manage him accordingly.

I also like "I'm not going to give you any money" because it clearly ends the justification for an approach under a lawful circumstance and will add this to my script.

I'm not big on exposing the gun or putting my hand on it in these circumstances. I've found that positioning the body for the draw and using a "missile lock' stare sends a strong enough signal that these folks read correctly right away just as well as if I had shown the weapon without the need to actually do so.

[mojo84]

I am currently going through a peace officer academy and I do not think what you did was considered disorderly conduct. I believe that statute was more for the individuals who decide to become irate and wave a gun around with no muzzle discipline or for individuals who draw a weapon illegally when there is no present threat. Seeing as there were two of them I feel you were justified initially. However, depending how far away the second individual was from you when he kept walking towards you I would have probably instructed him one or two more times to "stay back!" before I would have gripped my weapon.

of course, I open carry so they might not have approached me to begin with haha

I agree with this. In my opinion, the guy in the truck that pointed his gun at the motorcyclist is the type of action that violates the disorderly conduct and/or other laws.

[parabelum]

Having a hand on your still holstered weapon to deter an aggressor and give yourself a fighting chance should the agressor decide to escalate is not a DC. You didn't choose the situation, the agressor did.
You simply responded (in a measured and appropriate manner I would say) to a situation that you were thrusted into.
Even if you had to draw muzzle down, you have every right to defend yourself against a potentially deadly situation.
Texas is stand your ground state, and you had no knowledge whether the agressor was armed, on meth, pcp etc.