BAD EXPERIENCE: Dallas Museum of Art

[txinvestigator]

Yeah me too. This defense to prosecution stuff is stupid. If the officer has enough evidence to arrest you then obviously he thinks you have broken the law? On the flip side, if you will have a lawful defense, why make the arrest?

Because an officer arrest on Probable cause. It is your responsibility, and not the LEO's to determine your defense.

So a LEO can arrest me because I don't fit the bill as an upstanding citizen, even though he has no evidence that I have committed a crime. That sounds fair.

I think a defense to prosecution should be changed to be a "defense to arrest". In other words NOT ILLEGAL!!!

We have that concept now, its called non-applicability.

My point was, all "defense to prosecution" clauses should be changed to that criteria. Non-applicability simply means that it is not illegal in that particular case.

Arock, keep fighting the good fight. You said that the Sheriff has the final decision. Thats simply not the case and he needs to realize it. THE LAW has the final decision and he simply has to abide by it. Don't give up until things are set right. Good luck!

No, actually the law only says 30.06 is an exception if the place is owned or leased by the govt. No where does any law say a public entity cannot restrict concealed carry.

He said that the building is a "local county government center". I doubt its privately owned. A person inside the facility cannot overstep the law that the facility must follow. So I don't understand your "public entity" point.

There is no LAW that public entities (thats the same as government owned) cannot restrict CHL holders.

Again what are you going to do, tell the armed deputies or security people that YOU have a CHL and YOU know YOUR rights, and they can't stop YOU from entering, then push your way thru?

If you do, please call me first. I want to watch.

[kauboy]

Nope, I'm gonna take their badge numbers straight over to the DA's office and let him deal with what he already sees as a problem.

[barres]

Read the entire thread, I made a post that covers your specific question.

I have read the entire thread, and I don't recall you addressing how a goverment entity can enforce a verbal 30.06 notice if a government entity cannot use 30.06 to bar a CHL from carrying. Could you please repost or quote your previous post that explains that? I'm not trying to be argumentative or a jerk; I just want to know.

[txinvestigator]

Yeah me too. This defense to prosecution stuff is stupid. If the officer has enough evidence to arrest you then obviously he thinks you have broken the law? On the flip side, if you will have a lawful defense, why make the arrest?

Because an officer arrest on Probable cause. It is your responsibility, and not the LEO's to determine your defense.

So a LEO can arrest me because I don't fit the bill as an upstanding citizen, even though he has no evidence that I have committed a crime. That sounds fair.

No, that's not correct. For an officer to arrest, he has to have probable cause you committed the crime. If you need the elements of the crime you can be arrested. The defense to prosecution is only needed IF you actually committed the crime. Again, I explained this in another post.

For you to have access to the defense, you must first have committed the crime. If you commit the crime, the police can arrest, as the defense must be proven beyond reasonable doubt. Not by probable cause.

[txinvestigator]

Read the entire thread, I made a post that covers your specific question.

I have read the entire thread, and I don't recall you addressing how a goverment entity can enforce a verbal 30.06 notice if a government entity cannot use 30.06 to bar a CHL from carrying. Could you please repost or quote your previous post that explains that? I'm not trying to be argumentative or a jerk; I just want to know.

What are you going to do when they are wanding or metal detecting everyone and tell you that you are not going in with your handgun?

[barres]

Some posts were made while I was typing my last post. TXI, you state that no law prevents a govermental entity from barring CHL'ers. Then what does PC30.06(e) do? If you're saying that it only prevents us from being successfully prosecuted for tresspass, then what good is the law? The law (IMHO and I think many others') was intended specifically to keep governmental entities from barring CHL'ers due to their carrying a weapon. In other words, to give us the ability to carry on government property.

I fully admit to being idealistic in expecting laws to do what they were intended. I may have to admit to being naive about a great many things, including some areas of the law. Please, educate me.

[Arock]

"txinvestigator

Arock, keep fighting the good fight. You said that the Sheriff has the final decision. Thats simply not the case and he needs to realize it. THE LAW has the final decision and he simply has to abide by it. Don't give up until things are set right. Good luck!

No, actually the law only says 30.06 is an exception if the place is owned or leased by the govt. No where does any law say a public entity cannot restrict concealed carry.

I disagree. PC30.06e clearly states the entirety of PC30.06 does not apply to a holder of license to carry concealed handgun on public owned or leased property not already covered by PC46.03 and PC46.035.

Please show me where it states a public entity can further restrict licensed concealed carry on the basis of these statutes.

[txinvestigator]

Some posts were made while I was typing my last post. TXI, you state that no law prevents a govermental entity from barring CHL'ers. Then what does PC30.06(e) do? If you're saying that it only prevents us from being successfully prosecuted for tresspass, then what good is the law? The law (IMHO and I think many others') was intended specifically to keep governmental entities from barring CHL'ers due to their carrying a weapon. In other words, to give us the ability to carry on government property.

I fully admit to being idealistic in expecting laws to do what they were intended. I may have to admit to being naive about a great many things, including some areas of the law. Please, educate me.

I agree the law is weak, but it is what it is.

What are you going to do when they search you and bar you from entering?

[seamusTX]

For you to have access to the defense, you must first have committed the crime. If you commit the crime, the police can arrest, as the defense must be proven beyond reasonable doubt. Not by probable cause.

Can you clarify what must be proven beyond a reasonable doubt?

I thought the state had to prove guilt beyond a reasonable doubt, not the defendant to prove his innocence.

- Jim

[nitrogen]

Ok, Help me understand this.

30.05 says:

g) This section does not apply if:
(1) the basis on which entry on the property or land or
in the building was forbidden is that entry with a handgun or other
weapon was forbidden; and
(2) the actor at the time of the offense was a peace
officer, including a commissioned peace officer of a recognized
state, or a special investigator under Article 2.122, Code of
Criminal Procedure, regardless of whether the peace officer or
special investigator was engaged in the actual discharge of an
official duty while carrying the weapon.

Does the "and" mean what I think it does? So you have to have a CHL *AND* Be a peace officer?

Or does the "and" really mean "or"?

So my reading of this section of 30.05 and 30.06 seems to technically bar someone from being charged with tresspass if they have a CHL, and the only reason they are being barred from a property is having a concealed handgun. It seems to take 30.05 completely out of the picture, and apply 30.06 if the only reason for the "tresspass" is because the actor had a concealed handgun carried under the auspices of CHL.

Now then, 30.06 goes and says:

(e) It is an exception to the application of this section
that the property on which the license holder carries a handgun is
owned or leased by a governmental entity and is not a premises or
other place on which the license holder is prohibited from carrying
the handgun under Section 46.03 or 46.035.

to my non-lawyer eyes, this means 30.06 cannot be applied to a governmentally owned or leased property as long as that property doesnt meet the requirements of 46.03 or 46.035.

Now I realize that reality and the law tend to diverge, but what's the law that says that someone can restrict someone from entering a government owned property if the only reason for restriction is the carrying of a concealed handgun?

Is "We just didn't want him here!" good enough?, or in my (poorly executed) example, would they just remove you for disorderly conduct (or whatever the equivalent is)?

[barres]

What are you going to do when they are wanding or metal detecting everyone and tell you that you are not going in with your handgun?

I honestly have no idea. I would leave; I'm not really a confrontational person. I would call and/or write their supervisor, the DA's office and my local representatives letting them know that I think the officers are overstepping their bounds.

I guess I'm just being too idealistic.

Oh, and TXI, thank you for answering my question. I really learned a lot from "What are you going to do when they are wanding or metal detecting everyone and tell you that you are not going in with your handgun?"

[Arock]

Some posts were made while I was typing my last post. TXI, you state that no law prevents a govermental entity from barring CHL'ers. Then what does PC30.06(e) do? If you're saying that it only prevents us from being successfully prosecuted for tresspass, then what good is the law? The law (IMHO and I think many others') was intended specifically to keep governmental entities from barring CHL'ers due to their carrying a weapon. In other words, to give us the ability to carry on government property.

I fully admit to being idealistic in expecting laws to do what they were intended. I may have to admit to being naive about a great many things, including some areas of the law. Please, educate me.

I agree the law is weak, but it is what it is.

What are you going to do when they search you and bar you from entering?

Tell them to step next door to the DA's office and ask under what statute I can be charged. It's just that simple. The DA's office knows there is none.

[barres]

My apologies to all, especially you, TXI. I let my emotionas take control. I needed to re-read my own signature line.

[Arock]

For you to have access to the defense, you must first have committed the crime. If you commit the crime, the police can arrest, as the defense must be proven beyond reasonable doubt. Not by probable cause.

Can you clarify what must be proven beyond a reasonable doubt?

I thought the state had to prove guilt beyond a reasonable doubt, not the defendant to prove his innocence.

- Jim

This is TXI's problem. IIRC he also had great difficulty understanding the presumption of travelling statute as it benefits the average citizen instead of the cop.

[txinvestigator]

For you to have access to the defense, you must first have committed the crime. If you commit the crime, the police can arrest, as the defense must be proven beyond reasonable doubt. Not by probable cause.

Can you clarify what must be proven beyond a reasonable doubt?

I thought the state had to prove guilt beyond a reasonable doubt, not the defendant to prove his innocence.

- Jim

You are correct. The state must prove that you committed the offense beyond a reasonable doubt. In a case where you are depending on a "defense to prosecution" if the state proves you committed the elements of the offense beyond a reasonable doubt, then your defense team will present your 'defense to prosecution'.

If you try to prove that you were not guilty of the offense at all, in other words, you try to prove that you did not commit the elements of the offense, then you don't use the defense to prosecution, you fight the offense itself.

A defense to prosecution assumes you actually committed the elements of the offense. You then have to prove, to reasonable doubt, that your actions were within the defense to prosecution. The jury can find beyond a reasonable doubt that you committed the offense; while also deciding that you met the requirements of the defense to prosecution; thereby finding you not guilty.

Here is an example;

Lets say you are walking down a busy street at 3 in the afternoon minding your own business and a BG jumps up from behind a car and says "die, die!! while pointing a handgun at you and firing. (for our story he misses) You pull your legally concealed handgun and fire once, striking and killing the BG.

Under the Penal Code you committed homicide. I know, "but you can legally shoot someone it that situation!"

Here is the law;

Texas Penal Code §19.01. Types of criminal homicide.

(a) A person commits criminal homicide if he intentionally,
knowingly, recklessly, or with criminal negligence causes the death of
an individual.

In our scenario, you easily meet the elements of Criminal Homicide.

You have two defenses; 1) Make the prosecution prove beyond a reasonable doubt that you did it.

In our scenario, it will be a slam dunk that you committed the homicide.

Option 2) Claim self-defense, which is a defense to prosecution;

§9.02. Justification as a defense.

It is a defense to prosecution that the conduct in question is
justified under this chapter.


The "conduct in question" for our scenario is your shooting the guy. So IF your shooting the guy was justified by chapter 9, then you have a defense to prosecution.

In this case you could concede to the facts of the shooting, and offer your defense. You must prove that you met the requirements of the defense beyond a reasonable doubt.

here is the requirements for a defense to prosecution; my comments are in red


§2.03. Defense.

(a) A defense to prosecution for an offense in this code is
so labeled by the phrase: "It is a defense to prosecution . . . ."

(b) The prosecuting attorney is not required to negate the
existence of a defense in the accusation charging commission of the
offense. in the charge or indictment the prosecutor does not have to disprove the defense

(c) The issue of the existence of a defense is not submitted
to the jury unless evidence is admitted supporting the defense. The jury will not know a defense exists unless you present evidence that you engaged in the defense
(d) If the issue of the existence of a defense is submitted
to the jury, the court shall charge that a reasonable doubt on the
issue requires that the defendant be acquitted.
If the jury has reasonable doubt on the facts of the defense, then they acquit you based on the defense


So in our scenario even though you clearly engaged in conduct that meets the statutory requirement of criminal homicide, you can use the defense to prosecution based on 9.32 (deadly force in defense of a person) to be found not-guilty.

I hope that makes sense.