CHL and Open Carry Question

[Wysiwyg101]

These questions may have already been asked and answered but, I couldn't find it right off the bat so, I decided to ask the experts.

First, as far as I know, if you get pulled over, you're required to hand your CHL over as well. Am I correct about that?

Second, If you're walking along and an officer asks to see your ID then are you required to waive your Constitutional rights to not give it unless you are a suspect about to be arrested because of the above requirement?

Third, with the advent of the new Open Carry law, I've heard that part of it is that officers ware banned from even asking if you have a CHL. Does that nullify the above requirement?

This is all pretty confusing to me.

[jmra]

These questions may have already been asked and answered but, I couldn't find it right off the bat so, I decided to ask the experts.

First, as far as I know, if you get pulled over, you're required to hand your CHL over as well. Am I correct about that?
If an officer demands to see ID you are required by law to provide your CHL if you are carrying.
Second, If you're walking along and an officer asks to see your ID then are you required to waive your Constitutional rights to not give it unless you are a suspect about to be arrested because of the above requirement?
If an officer demands to see your ID you are required to provide your CHL. There is some debate about the circumstances under which an officer is legally justified in demanding to see ID as opposed to asking to see ID.
Third, with the advent of the new Open Carry law, I've heard that part of it is that officers ware banned from even asking if you have a CHL. Does that nullify the above requirement?
You may be referring to the Dutton amendment which was removed from the bill. If you plan to OC it is highly recommended to comply with an officers request to see your ID. If the request was solely because you were OCing document the encounter and report it to your representatives. Always be polite to officers. The sidewalk is not the place to argue such matters.
This is all pretty confusing to me.

Of course this applies to OC after Dec 31

[Wysiwyg101]

Awesome...exactly what I wanted to know. Thank you very much.

[jmra]

Awesome...exactly what I wanted to know. Thank you very much.

Your welcome.

[Jumping Frog]

First, as far as I know, if you get pulled over, you're required to hand your CHL over as well. Am I correct about that?

Close but not quite. The law reads if the officer "demands identification", then a CHL must provide their CHL and identification. However, there are also Texas laws, Texas case law, and US Supreme Court case law that covers the circumstances when an officer is legally allowed to demand identification.

Second, If you're walking along and an officer asks to see your ID then are you required to waive your Constitutional rights to not give it unless you are a suspect about to be arrested because of the above requirement?

If I am walking down the street and an officer simply walks up and demands identification -- which I believe to be an improper demand that does not meet constitutional requirements for reasonable articulable suspicion or probable cause -- then I am not going to try to win some pseudo-legal argument with an officer on the sidewalk. I'll be polite, note that I do not believe it is required but I will comply with their request.

Then, after the fact, I'll file a formal complaint through channels.

Third, with the advent of the new Open Carry law, I've heard that part of it is that officers ware banned from even asking if you have a CHL. Does that nullify the above requirement?

It was stripped from the law. However, as noted above, it was stripped because it was believed to be unnecessary since there are existing laws and court precedents that cover this.

[thetexan]

Agreed.

The law is clear that the triggering mechanism for you being required to show the license is the officer's demand for you to produce an ID. That statute does not discriminate between righteous and unrighteous demands or stops.

One can protest all you want at your own risk, expense, inconvenience, and peril but when it is all said and done you will, at a minimum, be in violation of not producing your license if you choose to make a constitutional stand right then and there.

Although, yes, you should be able to walk down the street with a properly licensed, properly holstered gun without having to be stopped. However, I can see that is perfectly reasonable for a LEO to see a man with a gun as worthy of investigation especially in this day and age. Just think how easy it would be for criminals to mimic a legal CHLer under the camouflage and protection of the law enforcement's hands being tied and not being able to stop someone. I am more willing to undergo a little suspicion especially in the early months of the new privilege if it will help weed out the pretenders. However, when it becomes obvious harassment then I will be first in line to work to do something about that. I am willing to trust the 98% of the trustworthy police to do the right thing...at least in the beginning. We will have to see how that works.

It is going to take both sides growing into this new system with a little give and take.

That said, if I am stopped and asked, it better not take any longer than just flashing the license and be on my way. Any longer and I and my lawyer will want to know why.

tex

[o b juan]

Quoting the Texan
" I can see that is perfectly reasonable for a LEO to see a man with a gun as worthy of investigation especially in this day and age. "
The rest not so much

I wont open carry

[Jumping Frog]

" I can see that is perfectly reasonable for a LEO to see a man with a gun as worthy of investigation especially in this day and age. "

I don't agree with that at all.

You don't see police routinely pulling people out of cars to prove they have a driver license. Absent other evidence of criminal behavior, I do not regard simple law-abiding carry of an openly holstered handgun to meet constitutional standards of reasonable articulable suspicion.

[cyphertext]

" I can see that is perfectly reasonable for a LEO to see a man with a gun as worthy of investigation especially in this day and age. "

I don't agree with that at all.

You don't see police routinely pulling people out of cars to prove they have a driver license. Absent other evidence of criminal behavior, I do not regard simple law-abiding carry of an openly holstered handgun to meet constitutional standards of reasonable articulable suspicion.

It appears that many lawyers do not currently agree with you on this. Their take is that the way the law is written that it is typically illegal to carry a handgun in Texas, and that the permit is a defense to prosecution, so the officer can stop you and give you a lawful order to produce identification... This is different from carrying a long arm, as Texas does not have a law restricting the open carry of a long arm.

Open carry is probably going to be interesting for a while.

[Jumping Frog]

It appears that many lawyers do not currently agree with you on this. Their take is that the way the law is written that it is typically illegal to carry a handgun in Texas, and that the permit is a defense to prosecution, so the officer can stop you and give you a lawful order to produce identification.

While I agree that there are conflicting court opinions in various jurisdictions, if there is controversy I hope this will eventually get settled in the Legislature instead of federal court.

However, one small nitpick regarding your phrase, "the permit is a defense to prosecution". That is not how the law is written. Instead, Sec. 46.02 is not applicable. There should never be a prosecution that needs to be defended.

PC §46.15. NON-APPLICABILITY.
...
(b) Section 46.02 does not apply to a person who:
(6) is carrying a concealed handgun and a valid license issued under Subchapter H, Chapter 411, Government Code, to carry a concealed handgun;

Now, I understand that these conflicting legal opinions have created a different legal landscape from jurisdiction to jurisdiction. Still, here was an interesting Law Enforcement Bulletin issued by the Ohio Attorney General two weeks ago. His comments regarding the 4th Amendment and Terry Stop justifications are federal and thus are of interest in Texas as well:

Law Enforcement Bulletin

Search and Seizure (Open Carry): Northrup v. City of Toledo Police Department
6/19/2015
Question: If someone is openly carrying a firearm, can an officer conduct a Terry stop and frisk and disarm the person?

Quick Answer: No, open carry is legal in Ohio and simply carrying a weapon openly is not sufficient reasonable suspicion to justify a Terry stop and frisk.

City of Toledo Police Department, 6th Circuit Court of Appeals, Northern District of Ohio (May 13, 2015)

Facts: An officer was advised by dispatch that a man was walking his dog while openly carrying a gun on his hip. The officer responded to the call and saw the subject, Shawn Northrup, and his wife walking their dog down the street. The officer approached Northrup and disarmed him. He demanded his driver’s license and concealed carry permit. Northrup gave the officer his license but told the officer to look up his concealed carry permit himself. The officer then threatened to charge Northrup with inducing panic, put Northrup in handcuffs, and placed him in his squad car. He eventually released Northrup with a citation for “failure to disclose personal information.” The charge was later dropped by police. Northrup sued the officer and the Toledo Police Department for violating his Fourth Amendment rights.

Importance: Clearly established law prevents officers from stopping and frisking individuals unless they have “reasonable suspicion” that the individual committed, or is about to commit, a crime. While Northrup was clearly “armed,” he was legally armed and there is no evidence that he was armed and dangerous. Because Northrup’s Fourth Amendment right to be free from unreasonable searches and seizures was violated, the Court allowed Northrup’s lawsuit to proceed.

Keep in Mind: Officers can always approach someone who is openly carrying and ask them questions when it is a consensual encounter. What an officer cannot do under the Fourth Amendment is require them to answer. Failure to disclose is not a proper charge because a citizen who is openly carrying a gun, and otherwise not committing a crime, is under no obligation to produce identification. Inducing panic doesn’t fit because it requires the commission of an “offense,” and carrying a handgun in the open is not an offense.

Note the phrase "clearly established law" in the "Importance" comment. That is a key phrase. If one is to sue a law enforcement officer and the department for a federal civil rights violation per 42 U.S. Code § 1983 - Civil action for deprivation of rights, the standard requires the officer violated a person's rights under clearly established law. This lawsuit was allowed to proceed because it met that standard.

Now, I agree with you there is a distinction between states with unlicensed open carry versus states with licensed open carry. However, I've also seen legal arguments that point out it is illegal to drive without a driver license yet stopping someone to demand their driver license does not meet that standard of reasonable articulable suspicion absent other evidence of criminal behavior.

[Moby]

For me...the smart thing to do is be polite, always present your CHL when asked for ID and in fact quickly inform any LEO you are carrying. Even when not asked for ID.

If asked for ID or CHL when OCing do so and be respectful.
If asked why you are OCing respectfully explain to the officer that Texas passed the OC law because towns are safer when citizens OC. Explain you have a CHL and totally support LEO's.

Just my two cents

[thetexan]

" I can see that is perfectly reasonable for a LEO to see a man with a gun as worthy of investigation especially in this day and age. "

I don't agree with that at all.

You don't see police routinely pulling people out of cars to prove they have a driver license. Absent other evidence of criminal behavior, I do not regard simple law-abiding carry of an openly holstered handgun to meet constitutional standards of reasonable articulable suspicion.

I don't agree with it either! We should live in a society where a man can carry a firearm openly and it be as natural as carrying groceries. We should live in a society where hoodlums with guns don't use them to rob banks and kill people and use them as an instrument to facilitate a crime. We should live in a society where the moral upbringing of right and wrong is taught in the home by loving and nurturing parents whose primary mission as a parent is to raise upstanding, law abiding and respectful young men and women. We should live in a society where the police do not feel they are targets of random violence as they try to fulfill their mission to protect us.

In a world where the showing of a gun is statistically associated with something bad going to happen, and where the police are trained to look for bad things that are going to happen we can't expect to insist that the police do not take notice of someone carrying a gun. And that has nothing to do with your constitutional rights.

You can constitutionally carry a gun. You can constitutionally carry a sign around town stating that you do not like this race or another race. You can constitutionally do alot of things. We have to be careful that we CHLers don't turn into a bunch of tough guys with something to prove like has been the case with many of the long gun demonstrations of late. I'm all for standing up for one's rights but we also need to remember that we are supposed to represent the law abiding, community welfare oriented citizens of the state.

I don't have to prove anything. I KNOW I have a right to be on the street with a gun on my belt. And I am happy to remind any officer of that fact by showing him my license. When it becomes harassment then I will have a problem with the harassment not with them asking me for the license. And I will pursue legal steps against the harassment not against them asking me for my license.

This will take a while for law enforcement and CHLers to settle into a routine, possibly years. In the meantime I will go about arming myself,(probably in a concealed manner; and not because I'm afraid of being stopped) and I will expect and even insist that law enforcement continue their work of stopping anyone who fits the profile of being suspicious in their pursuit of protecting all of us.

The equilibrium will not happen overnight and everyone would do well to lighten up a little especially in the beginning until we see how this is going to play out. We and law enforcement are on the same side in the respect that we all want a safer community and each in our own way, CHLers in carrying a weapon and LEOs in patrolling and watching out for us all which will inevitably involve some stops.

That being said, as I stated earlier, when asked I will produce my license. I have no problem with that. But that had better be the end of it. Once I have shown that I can carry I expect to be quickly on my way. If it goes beyond that then I will be at the head of the parade to get something done about the harassment.

tex

[rdcrags]

Our governor reminded us in an interview that Texas will be the 43rd (I think I got it right) state to allow OC. I listen to and read the news regularly and don’t remember terrible instances of doom in other states. So, why all of the apprehension being expressed here? I have OC’d in Colorado every year when I am on the trails, and sometimes forget to conceal when boarding the bus back from the trailheads. No problems.

[CleverNickname]

Our governor reminded us in an interview that Texas will be the 43rd (I think I got it right) state to allow OC.

While this may be technically correct, in reality it's not. Look at this map of open carry legality: http://www.opencarry.org/?page_id=103" onclick="window.open(this.href);return false;

Now, I've never been to New Jersey, Hawaii, Massachusetts, Maryland or Rhode Island, but I imagine that any licensee in those may-issue states would probably lose their license if they tried OCing.

[cyphertext]

It appears that many lawyers do not currently agree with you on this. Their take is that the way the law is written that it is typically illegal to carry a handgun in Texas, and that the permit is a defense to prosecution, so the officer can stop you and give you a lawful order to produce identification.

While I agree that there are conflicting court opinions in various jurisdictions, if there is controversy I hope this will eventually get settled in the Legislature instead of federal court.

However, one small nitpick regarding your phrase, "the permit is a defense to prosecution". That is not how the law is written. Instead, Sec. 46.02 is not applicable. There should never be a prosecution that needs to be defended.

PC §46.15. NON-APPLICABILITY.
...
(b) Section 46.02 does not apply to a person who:
(6) is carrying a concealed handgun and a valid license issued under Subchapter H, Chapter 411, Government Code, to carry a concealed handgun;

Now, I understand that these conflicting legal opinions have created a different legal landscape from jurisdiction to jurisdiction. Still, here was an interesting Law Enforcement Bulletin issued by the Ohio Attorney General two weeks ago. His comments regarding the 4th Amendment and Terry Stop justifications are federal and thus are of interest in Texas as well:

Law Enforcement Bulletin

Search and Seizure (Open Carry): Northrup v. City of Toledo Police Department
6/19/2015
Question: If someone is openly carrying a firearm, can an officer conduct a Terry stop and frisk and disarm the person?

Quick Answer: No, open carry is legal in Ohio and simply carrying a weapon openly is not sufficient reasonable suspicion to justify a Terry stop and frisk.

City of Toledo Police Department, 6th Circuit Court of Appeals, Northern District of Ohio (May 13, 2015)

Facts: An officer was advised by dispatch that a man was walking his dog while openly carrying a gun on his hip. The officer responded to the call and saw the subject, Shawn Northrup, and his wife walking their dog down the street. The officer approached Northrup and disarmed him. He demanded his driver’s license and concealed carry permit. Northrup gave the officer his license but told the officer to look up his concealed carry permit himself. The officer then threatened to charge Northrup with inducing panic, put Northrup in handcuffs, and placed him in his squad car. He eventually released Northrup with a citation for “failure to disclose personal information.” The charge was later dropped by police. Northrup sued the officer and the Toledo Police Department for violating his Fourth Amendment rights.

Importance: Clearly established law prevents officers from stopping and frisking individuals unless they have “reasonable suspicion” that the individual committed, or is about to commit, a crime. While Northrup was clearly “armed,” he was legally armed and there is no evidence that he was armed and dangerous. Because Northrup’s Fourth Amendment right to be free from unreasonable searches and seizures was violated, the Court allowed Northrup’s lawsuit to proceed.

Keep in Mind: Officers can always approach someone who is openly carrying and ask them questions when it is a consensual encounter. What an officer cannot do under the Fourth Amendment is require them to answer. Failure to disclose is not a proper charge because a citizen who is openly carrying a gun, and otherwise not committing a crime, is under no obligation to produce identification. Inducing panic doesn’t fit because it requires the commission of an “offense,” and carrying a handgun in the open is not an offense.

Note the phrase "clearly established law" in the "Importance" comment. That is a key phrase. If one is to sue a law enforcement officer and the department for a federal civil rights violation per 42 U.S. Code § 1983 - Civil action for deprivation of rights, the standard requires the officer violated a person's rights under clearly established law. This lawsuit was allowed to proceed because it met that standard.

Now, I agree with you there is a distinction between states with unlicensed open carry versus states with licensed open carry. However, I've also seen legal arguments that point out it is illegal to drive without a driver license yet stopping someone to demand their driver license does not meet that standard of reasonable articulable suspicion absent other evidence of criminal behavior.

OK, defense to prosecution might be the wrong term, as I am not a lawyer.... however, 42.06 does state that "A person commits an offense if the person intentionally, knowingly, or recklessly carries on or about his or her person a handgun...", so wouldn't that be probable cause to stop and ask for ID? After all, the officer has no way of knowing if you have a license or not, so he has no way of knowing if 42.06 is applicable or not... If he asks for your license, you show him, and that should be the end of the contact. I don't know if Ohio has a statute that makes carrying a handgun illegal like we do, so not sure if you are comparing apples to oranges. But I do know that [Pre-paid legal service] has a video out stating that their opinion is that the officer can make the stop and request ID for open carry of a handgun, as do a couple other lawyers that I know.