Response From DPS Regarding Policies When Encountering CHLer

[jimlongley]

. . . There in is the issue .. WHAT POLICY? What is this policy folks keep referring to.
There is no LAW, nor Code we have seen and DPS states there is NO POLICY.. So what policy are you referring to?

There is a Texas Penal Code which gives the officer authority in a very broad manner to disarm you.. I don't like it, but it is there.
There is a Criminal code which directs the officer to do a NCIC check for stolen property when a firearm is in his possession for any reason... I don't like it, but it is there.

I think our argument is in the code and law... Not a mystery policy that no one has ever seen.

Yes, DPS shows no policy on the paperwork they were willing to provide for the FOIA query, but that does not mean there is not a policy, only that it is not written down in that section.

And the "reasonable person" test is not at all broad, even if officers might abuse it. The problem with the reasonable person test is that you don't get to argue that on the side of the road, it is something you would have to use in a court room and how you got there is another issue. Were you arrested and then released, arrested and now at trial, arrested and then acquitted, or even arrested and convicted? Or did you sue the officer and department because you felt he was not reasonable in disarming you? If so, prove it, and where is the damage that you can justify your suit with. Reasonable person is narrow, but easily abused.

The policy folks keep referring to is the all to frequent statement by an officer that the reason they are disarming the CHL at the traffic stop, and running the serial number, is that it is their policy. Now, there is every possibility that the officer is making that up, or that the officer is misquoting the section that says that when they come into possession of a firearm they will do an NCIC check, or maybe the officer doesn't understand that section and thinks they have to do it, or the officer's superiors have told him and everyone else that for the safety of the officers they will always disarm CHLs, which still would be policy even if unwritten, and that as a result of the possession of the firearm, they now have to do an NCIC check.

There are enough YouTube videos of officers hassling open carriers where open carry is legal, and telling open carriers that they are in violation of the law when in fact they are not, or telling them that it is their policy (they never say it's department policy) to do the same with any open carry person. I don't see any reason to expect any different treatment of CHL holders.

[E.Marquez]

The policy folks keep referring to is the all to frequent statement by an officer that the reason they are disarming the CHL at the traffic stop, and running the serial number, is that it is their policy.

all to frequent statement ??
viewtopic.php?f=7&t=60179&start=15" onclick="window.open(this.href);return false;

Im not seeing any pattern pointing to that at this point.

Can you link me to the 1st person reports that state the officer disarmed teh CHL'er as a matter of policy? (NOTE, i do remember reading ONE such thread,,,so please understand Im not poking at you.. I know it has been reported.. it's the " frequent statement " part Im not so sure of.. and the reason I stated that other thread linked above.

Thanks

.

[anygunanywhere]

How about just forget about wading through their Policy directives and make them add this:

HQ-CHL (insert where appropriate)
Do NOT run serial numbers (NCIC Check) of valid CHL holder's handguns. (PERIOD)

Perhaps because as the stats show,, Texas residents who have a valid CHL, do in fact commit crimes. From Domestic assault to DUI, theft to receiving stolen property to rape and murder. I would prefer those folks with a valid CHL have there weapons serial number run though a NCIC

You go right ahead and volunteer to have yours run for NCIC check. Do not speak for me, thank you very much.

Anygunanywhere

Not sure how you came to that position and response.

However if you are caught in the act of steeling property, have a CHL and gun on you.. I do want the officer to have the legal ability to run your gun though a NCIC check.

Not sure why that offends you.

Nor in any way did I speak for you or any other person.. May I suggest you calm down a bit and reread my post.. feel free to point out where I stated MY opinion was yours?

I know you are not sure why your statement did not agree with me because your intent was not clear. The red text does not clearly identify who "those folks with a valid CHL" are referring to. It was cleared up in subsequent posts.

Anygunanywhere

[gigag04]

The fix is to reword "possession for any reason" to exclude a routine disarming of CHL holders or when MPA criteria are met.

Common sense would dictate that outside of those issues, a check might be in order, but until it goes down on paper, the troopers are bound by their policy since it says "shall" and not "may."

[JKTex]

The fix is to reword "possession for any reason" to exclude a routine disarming of CHL holders or when MPA criteria are met.

Common sense would dictate that outside of those issues, a check might be in order, but until it goes down on paper, the troopers are bound by their policy since it says "shall" and not "may."

That's why I question the interpretation. If the officer subscribes to the notion that he/she can disarm someone on a simple traffic stop and they are required to do a NCIC check, then they'd also be bound to what appears to be their process, which they can't do if all they've done is disarmed someone on a simple traffic stop. It appears they are to have a printout of the check and it should be attached to the property form (whatever it's called) which they aren't filling out because it's not being taken into possession.

I guess I'm hung up on how they define the terms they use considering there appears to be a big difference in taking possession, and disarming, even though the common definition of possession would apply but it creates a contradictory situation.

I could be all wrong too.

[E.Marquez]

[quote="anygunanywhereI know you are not sure why your statement did not agree with me because your intent was not clear. The red text does not clearly identify who "those folks with a valid CHL" are referring to. It was cleared up in subsequent posts.

Anygunanywhere[/quote]
My apologies, I assumed readers would read the entire post and understand the intent.

How about just forget about wading through their Policy directives and make them add this:

HQ-CHL (insert where appropriate)
Do NOT run serial numbers (NCIC Check) of valid CHL holder's handguns. (PERIOD)

Perhaps because as the stats show,, Texas residents who have a valid CHL, do in fact commit crimes. From Domestic assault to DUI, theft to receiving stolen property to rape and murder. I would prefer those folks with a valid CHL have their weapons serial number run though a NCIC

In my mind it was clear.. "those" referred to the fore mentioned "Texas residents who have a valid CHL, do in fact commit crimes"

I'll try harder to articulate my position so that it is more difficulty for some to misunderstand. Spelling "Their" correctly in the last scentance of the contended post would have helped with clarity . Sorry about that.


Back on topic…

Are we (the general group, not a single user) in agreement..

Certain Weapons. Article 18.19, CCP, and Chapter 46, PC. 05.10 Weapons
1.Firearms and Other Weapons (knives, blackjack, club, etc.). When a firearm comes into the possession of a DPS officer, for any reason, the officer will check with NCIC for a possible stolen report.

Provides the authority to do the NCIC check? if you contend that point.. can you restate why?

Thanks

[E.Marquez]

The fix is to reword "possession for any reason" to exclude a routine disarming of CHL holders or when MPA criteria are met.

Common sense would dictate that outside of those issues, a check might be in order, but until it goes down on paper, the troopers are bound by their policy since it says "shall" and not "may."

That's why I question the interpretation. If the officer subscribes to the notion that he/she can disarm someone on a simple traffic stop and they are required to do a NCIC check, then they'd also be bound to what appears to be their process, which they can't do if all they've done is disarmed someone on a simple traffic stop. It appears they are to have a printout of the check and it should be attached to the property form (whatever it's called) which they aren't filling out because it's not being taken into possession.

I guess I'm hung up on how they define the terms they use considering there appears to be a big difference in taking possession, and disarming, even though the common definition of possession would apply but it creates a contradictory situation.

I could be all wrong too.

Im trying really hard here to see this from your point of view.. and just can not.

"If the officer subscribes to the notion that he/she can disarm someone on a simple traffic stop " That’s not in question.. They can... by simply articulating there reasonable concern for your, theirs, or another’s safety... Gig has pointed this out previously.. It is not difficult at all.

THEN once it is in there possession FOR ANY REASON, per the CCC.. they MUST run it though NCIC.

The house of cards only crumbles when the officer can not comply with the requirements of GC §411.207.

AUTHORITY OF PEACE OFFICER TO DISARM.
(a) A peace officer who is acting in the lawful discharge of the officer's official duties may disarm a license holder at any time the officer reasonably believes it is necessary for the protection of the license holder, officer, or another individual

Back to the officer, ADA, judge, chief of police definition of reasonable.

It would seem, it is not a tangible, definite black and white standard to point to and say “See the officer did not meet the required component for disarming me”

At most, someone LATER may disagree with the officer’s opinion on “officer reasonably believes it is necessary for the protection of the license holder, officer, or another individual”

[Sangiovese]

I think the formatting of the information has resulted in some confusion. Code of Criminal Procedure 18.19 is not related to the policy of running the serial numbers. It is part of item number 4 in Section 5.09 of the DPS policy. I figured this out after I read 18.19 (it is about seized weapons) I formatted a section of the FOI info below to help show this.

05.08 Resident Property Officer
1.
Qualifications. Personnel who are unable to use central storage due to the geographical location of their duty station.
2.
Duties. Responsible for the security and control of entrust· ed property maintained in resident storage.

05.09 Disposition of Property Not Returned to Owner or Responsible Person. Members of the Department will familiarize themselves with, and be directed by, provisions of the Code of Criminal Procedure (CCP) and Texas Penal Code (PC), as amended, concerning disposition of property.
1.
Abandoned or Unclaimed Property. Article 18.17, CCP. A receipt for the property will be obtained and placed in the inventory file.
2.
Stolen Property, Chapter 47, CCP.
3.
Gambling Paraphernalia, Prohibited Weapon, Criminal Instrument. Article 18.18, CCP.
4.
Certain Weapons. Article 18.19, CCP, and Chapter 46, PC.

05.10 Weapons
1.Firearms and Other Weapons (knives, blackjack, club, etc.). When a firearm comes into the possession of a DPS officer, for any reason, the officer will check with NCIC for a possible stolen report.
a.
A firearm seized and held for any reason will have a copy of NCIC check attached to the HQ-106 or HQ-114.
b.
The proper inventory form, HQ-109 or HQ-1 09a, will be completed describing the weapon seized with a copy pro· vided to the person or responsible party from whom it is taken.
24.05.07 -05.10
c.
The proper court order HQ-106 or HQ-114 will be completed.
d.
...etc...

So, there isn't a Code of Criminal Procedure section that directs DPS officers to run serial numbers whenever a firearm comes into their possession. (Or if there is, it isn't 18.19) It looks like it is simply section 5.10 of some DPS policy.

[Katygunnut]

Given that there is now no penalty for failing to show your CHL, one approach would be to just hand over your drivers license. If the LEO runs the license and identifies you as a CHL holder, and then asks if you are armed, you could say yes, and apologize for your oversight while then handing over the CHL.

This would at least allow for the possibility that the LEO would not ask the "are you armed" follow up question, and there would be no disarming. Also, since the encounter might well be over or close to over by the point that the LEO discovered the CHL to be carrying, there would seem to be less of a need to disarm due to "officer safety" concerns.

[Keith B]

Given that there is now no penalty for failing to show your CHL, one approach would be to just hand over your drivers license. If the LEO runs the license and identifies you as a CHL holder, and then asks if you are armed, you could say yes, and apologize for your oversight while then handing over the CHL.

This would at least allow for the possibility that the LEO would not ask the "are you armed" follow up question, and there would be no disarming. Also, since the encounter might well be over or close to over by the point that the LEO discovered the CHL to be carrying, there would seem to be less of a need to disarm due to "officer safety" concerns.

The problem is the law states you MUST show your CHL. Doesn't matter if there is a penalty or not. Not doing so is still a violation and you suggesting someone intentionally break the law is not advisable, as well as a violation of the forum rules.

[57Coastie]

Given that there is now no penalty for failing to show your CHL, one approach would be to just hand over your drivers license. If the LEO runs the license and identifies you as a CHL holder, and then asks if you are armed, you could say yes, and apologize for your oversight while then handing over the CHL.

This would at least allow for the possibility that the LEO would not ask the "are you armed" follow up question, and there would be no disarming. Also, since the encounter might well be over or close to over by the point that the LEO discovered the CHL to be carrying, there would seem to be less of a need to disarm due to "officer safety" concerns.

If I were with the DPS and saw this post I would move it up to the very top in Austin and cite it as an example of how CHL holders in Texas can be counted on to follow Texas gun law is a myth.

Even worse, here we have a senior member passing this advice for unlawful behavior on to junior members of the forum.

A nice way to compromise all the fine work done for all of us in Austin by those like our fearless leader Chas.

Jim

[Ameer]

If I were with the DPS and saw this post I would move it up to the very top in Austin and cite it as an example of how CHL holders in Texas can be counted on to follow Texas gun law is a myth.

I'm not surprised you would.

[Oldgringo]

So, don't speed and/or break any traffic or other laws and by all means, do not otherwise call undue LEO attention to yourself and this question/issue becomes moot, eh?

After working to be a good law adiding citizen and still find yourself at odds with the local gendarmarie/fuzz, you can employ a real barrister and sue the leggings off of them for discriminating against your self.

No offense...anybody.

[Ameer]

So, don't speed and/or break any traffic or other laws and by all means, do not otherwise call undue LEO attention to yourself and this question/issue becomes moot, eh?

It's true it reduces the risk but it doesn't eliminate it. Some people get hassled for DWB and it's not a stretch to think there is a connection between hassling someone for DWB and hassling someone for CHL. On the other hand, maybe having a Texas CHL is one of those things that call undue LEO attention to some people, so getting their 2A license from another state could reduce unwanted undue attention.

No offense taken.

[Katygunnut]

Given that there is now no penalty for failing to show your CHL, one approach would be to just hand over your drivers license. If the LEO runs the license and identifies you as a CHL holder, and then asks if you are armed, you could say yes, and apologize for your oversight while then handing over the CHL.

This would at least allow for the possibility that the LEO would not ask the "are you armed" follow up question, and there would be no disarming. Also, since the encounter might well be over or close to over by the point that the LEO discovered the CHL to be carrying, there would seem to be less of a need to disarm due to "officer safety" concerns.

The problem is the law states you MUST show your CHL. Doesn't matter if there is a penalty or not. Not doing so is still a violation and you suggesting someone intentionally break the law is not advisable, as well as a violation of the forum rules.

I certainly do not want to advocate for the violation of any laws, so let state that I am not advocating that anyone use the "approach" that I outlined above. I apologize if I gave anyone a different impression. I was solely speculating on what someone might do in response to what they might view as over reaching behavior by a LEO.