Rethinking 30.06

[Scott Farkus]

[Note: I'm not exactly sure where this should go so moderators, please feel free to move it if necessary. Also, I can't make my point without getting a little political so I respectfully request a bit of leeway on that rule.]

I've been struggling with something for a while, and have posted about it on other forums. It came up again while I was watching the Senate committee hearing on the campus and OC bills the other day and I wanted to get this board's thoughts.

Why do we gun owners allow ourselves to be discriminated against? I understand private property rights and all, and I absolutely respect that and want to respect that, but the fact of the matter is that now, in 2015 America, you give up a great deal of your private property rights when you open your doors to the public. Some of the more obvious examples are civil rights laws, which don't allow you to refuse service to certain protected classes, and ADA requirements which force certain building standards to accomodate the disabled. Recently, many instances have been reported of businesses being fined or coerced into providing services for gay weddings against the owner's wishes, which, regardless of how one feels about the general issue, seems irreconcilable with any respect of private property rights. Other examples are rather trivial, such as a ban on grocery stores using plastic bags, but an infringement nonetheless. And hundreds if not thousands of laws and regulations in between.

I'm not here to argue for or against any of those things. I simply bring them up as a contrast to gun owners, specifically Texas CHL holders, who literally go out of their way in the form of the 30.06 sign to provide a clear and enforceable mechanism by which a business can not only discriminate against us, but have us charged with a misdemeanor sufficient to revoke the privilege of carrying in the future if we disregard those wishes. And we continue to argue and stress and fight about the best way to maintain this mechanism as other things change (i.e. open carry and 30.07).

Why? Why are we apparently the only group in the country that tolerates this? Essentially every one of the impositions I mentioned earlier are a result of some group or another deciding to force its views of how society should be on a private property owner. I know two wrongs don't make a right, but at some point I think we have to acknowledge that society cannot continue to function unless we all play by the same rules. Property owners engaged in commerce already don't have a right to control much of what happens on their property - why can't, at minimum, requiring them to allow licensed concealed carriers be one of those things? The state has licensed you to carry, and nobody is going to know. How is that any more nefarious than forcing a photographer with moral objections to photograph a gay wedding?

A bridge too far, perhaps? OK, I get that. What if we eliminated the penalties involved? I heard someone at the hearing mention that a couple of states (not sure which ones) have no penalties for carrying past their version of a 30.06 sign. I like that. What about keeping the property owner's right to exclude guns, but putting the onus on him or her to specifically tell you you must leave, and then only applying the penalty if you refuse?

Thoughts?

[Glockster]

You know, frankly I've thought about the exact same thing. I fully acknowledge the right of someone to restrict access to their private property, however, it seems to me that as soon as you open your door to the general public, then that changes the game. I'll even go so far so as to reduce this to a different form of argument -- constitutional rights vs. property rights. We have a constitutional right to bear arms, but of the rights granted in the constitution I don't see the same level of protection afforded property. For example, generally any property rights granted by the constitution are done so through the 5th amendment. But those protections are afforded you as protection from the government, and not from the public. In fact, the word "property" was only used once in the entire constitution and when previously discussing this with a friend who is a constitutional scholar, he pretty much agreed with me. For example, lest you think you have any absolute property rights, he suggested visiting one of our commonwealth states and reviewing what those constitutions have to say about that point. I have long pondered this exact point, and think that not restricting me of a constitutional right should trump property rights in that way when considering, for example, a store owner who chooses to open their doors to the public. I personally think that discriminating against me because I choose to bear arms is akin to violating equal protection rights granted based upon race, sex, religion, etc.

Or the short version is...

[Charles L. Cotton]

I have long advocated not allowing businesses that are open to the public to prohibit concealed-carry by CHLs. There is absolutely no support for that concept in Austin and a very large percentage of gun owners don't support it either. It's a property rights issue and while I strongly support private property rights, commercial property is already treated much differently.

As for TPC §30.06, it does not discriminate against CHLs; it saved the program.

Chas.

[C-dub]

I guess that means that the folks in Austin do not equate bearing arms to a civil right like free speech or the civil protections that prevent businesses from denying services to persons bases on race or sex?

[Scott Farkus]

I have long advocated not allowing businesses that are open to the public to prohibit concealed-carry by CHLs. There is absolutely no support for that concept in Austin and a very large percentage of gun owners don't support it either. It's a property rights issue and while I strongly support private property rights, commercial property is already treated much differently.

As for TPC §30.06, it does not discriminate against CHLs; it saved the program.

Chas.

I'm not sure I follow this. I can appreciate that we needed 30.06 in order to get CHL passed initially, and maybe we still need it for political purposes, but how is it anything other than a statutory mechanism for businesses to discriminate against a CHL carriers?

Is there any other group that has gone to these lengths (or any lengths) to allow businesses to exclude them? If there is, I can't think of one. It's exactly the opposite - the rest of the world seems to expect that businesses accede to their demands, and they have largely been successful in accomplishing that.

What about my idea of removing the penalties associated with crossing a 30.06 sign? How does that work in those states mentioned in the hearing? What if we did away with all signage and allowed business owners to still exclude carriers, but only on request? In the case of concealed carriers anyway, they likely wouldn't even know, but if for some reason they did, it would force him or her to decide whether his or her fear of guns was worth losing out on the sale of the $200 worth of groceries in the cart. But he still has the right to exclude guns from his private property.

[Scott Farkus]

You know, frankly I've thought about the exact same thing. I fully acknowledge the right of someone to restrict access to their private property, however, it seems to me that as soon as you open your door to the general public, then that changes the game. I'll even go so far so as to reduce this to a different form of argument -- constitutional rights vs. property rights. We have a constitutional right to bear arms, but of the rights granted in the constitution I don't see the same level of protection afforded property. For example, generally any property rights granted by the constitution are done so through the 5th amendment. But those protections are afforded you as protection from the government, and not from the public. In fact, the word "property" was only used once in the entire constitution and when previously discussing this with a friend who is a constitutional scholar, he pretty much agreed with me. For example, lest you think you have any absolute property rights, he suggested visiting one of our commonwealth states and reviewing what those constitutions have to say about that point. I have long pondered this exact point, and think that not restricting me of a constitutional right should trump property rights in that way when considering, for example, a store owner who chooses to open their doors to the public. I personally think that discriminating against me because I choose to bear arms is akin to violating equal protection rights granted based upon race, sex, religion, etc.

Or the short version is...

Thanks, and excellent points. I would have included the same discussion in my op but it was getting too long winded already.

[C-dub]

What about my idea of removing the penalties associated with crossing a 30.06 sign? How does that work in those states mentioned in the hearing? What if we did away with all signage and allowed business owners to still exclude carriers, but only on request? In the case of concealed carriers anyway, they likely wouldn't even know, but if for some reason they did, it would force him or her to decide whether his or her fear of guns was worth losing out on the sale of the $200 worth of groceries in the cart. But he still has the right to exclude guns from his private property.

Charles has spoken extensively on these issues before, so, IIRC ...

He is in favor of reducing the penalty for violating a 30.06 sign down to maybe a Class C misdemeanor I think. There is also a lot of support for that by other forum members.

Many of us are not in favor of doing away with "the sign" because it is a big ugly sign and may cause some to pause and really think about whether or not they really want to put something like that up in their business. The other part of that is that there doesn't seem to be much or any support in Austin and among many business owners on this form to require them to orally inform someone that they cannot carry in their business. Rightly or wrongly, the elected representatives in Austin place more value on a property owners' rights in this area than they do an individual's rights.

Did I get that about right guys? Did I miss anything?

[Outnumbered]

As others have said, it doesn't seem right to me that a sign on a business (which I might not even see as I am chatting with my family when I enter) can turn me into a criminal and make me lose my CHL. I would rather see no penalty, but if that is not palatable, how about lowering it to class C for walking past a sign and keeping the higher penalty for those who are confronted and refuse to leave?

[K5GU]

While not wanting to get into the issue of posting 'legal' advice and what-not, Charles, pls correct me if wrong, but isn't the 30.06 statute an augmentation to 30.05 (Trespassing, etc.) for the purposes of registering notice to customers carrying a handgun under the CHL law?

Let's say I have a retail store in Texas and I (or my franchise owners) don't want customers who are hiding their guns to be in my store. Under current Texas law, I'm required to give them verbal or written notice to vacate...Okay, I don't have my sign up yet, but I ask a customer who I think is carrying a hidden gun to leave. The customer refuses. I call the police. They find the hidden gun, but the customer says, "I was never notified..." What happens then if I can't prove that I notified the customer verbally without a witness to back me up? My word against the customer, right? But if I post the sign, then that 'registers' my notice.

[TexasCajun]

As far as I can tell, the legislators look at this question as a behavior issue. A restaurant is allowed to enforce a dress code. A store can ask unruly customers to leave. A mall can enforce a policy of no soliciting or distribution of literature. And businesses can prohibit the concealed carry of firearms as a matter of conduct.

Do I like having to disarm before going into somewhere? No, I don't. If I can I'll weigh my other options. All that being said, I would like to see the 30.06 penalty reduced.

[TexasCajun]

While not wanting to get into the issue of posting 'legal' advice and what-not, Charles, pls correct me if wrong, but isn't the 30.06 statute an augmentation to 30.05 (Trespassing, etc.) for the purposes of registering notice to customers carrying a handgun under the CHL law?

Let's say I have a retail store in Texas and I (or my franchise owners) don't want customers who are hiding their guns to be in my store. Under current Texas law, I'm required to give them verbal or written notice to vacate...Okay, I don't have my sign up yet, but I ask a customer who I think is carrying a hidden gun to leave. The customer refuses. I call the police. They find the hidden gun, but the customer says, "I was never notified..." What happens then if I can't prove that I notified the customer verbally without a witness to back me up? My word against the customer, right? But if I post the sign, then that 'registers' my notice.

At that point the police would ask the person leave. If they don't, the police can effect the arrest - and probably with a lot more penalty than just 30.06.

[Charles L. Cotton]

I have long advocated not allowing businesses that are open to the public to prohibit concealed-carry by CHLs. There is absolutely no support for that concept in Austin and a very large percentage of gun owners don't support it either. It's a property rights issue and while I strongly support private property rights, commercial property is already treated much differently.

As for TPC §30.06, it does not discriminate against CHLs; it saved the program.

Chas.

I'm not sure I follow this. I can appreciate that we needed 30.06 in order to get CHL passed initially, and maybe we still need it for political purposes, but how is it anything other than a statutory mechanism for businesses to discriminate against a CHL carriers?

Is there any other group that has gone to these lengths (or any lengths) to allow businesses to exclude them? If there is, I can't think of one. It's exactly the opposite - the rest of the world seems to expect that businesses accede to their demands, and they have largely been successful in accomplishing that.

What about my idea of removing the penalties associated with crossing a 30.06 sign? How does that work in those states mentioned in the hearing? What if we did away with all signage and allowed business owners to still exclude carriers, but only on request? In the case of concealed carriers anyway, they likely wouldn't even know, but if for some reason they did, it would force him or her to decide whether his or her fear of guns was worth losing out on the sale of the $200 worth of groceries in the cart. But he still has the right to exclude guns from his private property.

Tex. Penal Code §30.06 was not part of the original CHL bill (SB60 in 1995). It was added by HB2909 in 1997.

Prior to the creation of TPC §30.06 in 1997, TPC §30.05 applied to everyone including CHLs and any generic "no guns" sign or small decals were enforceable. That's precisely why §30.06 was created. We didn't go out of our way to make it easier to exclude armed CHLs, we made it much harder. The goal was to make very sure that a CHL didn't inadvertently enter a store and face a Class A misdemeanor charge because they missed a small decal.

As for other groups, I can prohibit anyone other than a CHL from entering my property by using small §30.05 sign or decal, so long as I'm not trying to exclude them because they are in a protected class.

Many people who were not here in 1995 - 1997 are not fully aware why and how TPC §30.06 is so critically important to CHLs. That's why I always tell the history of §30.06 in all of my CHL classes.


Chas.

[Charles L. Cotton]

While not wanting to get into the issue of posting 'legal' advice and what-not, Charles, pls correct me if wrong, but isn't the 30.06 statute an augmentation to 30.05 (Trespassing, etc.) for the purposes of registering notice to customers carrying a handgun under the CHL law?

Let's say I have a retail store in Texas and I (or my franchise owners) don't want customers who are hiding their guns to be in my store. Under current Texas law, I'm required to give them verbal or written notice to vacate...Okay, I don't have my sign up yet, but I ask a customer who I think is carrying a hidden gun to leave. The customer refuses. I call the police. They find the hidden gun, but the customer says, "I was never notified..." What happens then if I can't prove that I notified the customer verbally without a witness to back me up? My word against the customer, right? But if I post the sign, then that 'registers' my notice.

Correct on all points.
Chas.

[Jumping Frog]

I get the right of property owners to have some degree of control over who is on their property.

However, I think facing a year in jail and a $4,000 fine for walking into Whole Foods is ridiculous. Absolutely stunning overkill.

I know of other states where a police officer has to personally see a misdemeanor (with a few exceptions) and the trespassing past a gun sign has to be "knowingly". What happens in actual practice is a police officer needs to witness the business representative asking the armed trespasser to leave and witness persistent refusal to do so. I could see a Class A in those circumstances.

However, just walking along and get ambushed by being arrested over a sign that you may or may not have seen? No thanks. Ask them to leave. If they leave immediately, it should be "no harm, no foul".

[Vol Texan]

Charles,

I do agree that 30.06 saved the program, and I do agree that it is MUCH better than the alternative of 'no guns' signs being valid for us. The history of the program is very important, but I'm of the mind that the future could be better.

It seems that if we follow the thread of logic presented in the OP (which I've also thought of in the past), then sure, any business can ask anyone to leave for any reason (e.g. being disruptive, dressed inappropriately, bad smell, or no reason at all), but if that reason happens to conflict with a civil right (e.g. I've told a gay couple I don't want them holding hands in here, so I asked them to leave), then it's not legal.

The courts have been used lately as the 'hammer' to force such things (think about the cake designer who was forced to make a cake for a gay couple, or the student who was not allowed into the law school because the standards applied to her race were higher than to other races). It may have to be that the court becomes the vehicle for tossing out 30.06. Not tossing out in the direction of valid 'no guns' signs, but instead tossing it out in the direction of 'you cannot categorically discriminate against someone who is exercising their right to carry'.

I welcome your opinion on this.

Note I said 'categorically discriminate'. I still believe any private property owner should be allowed to single out an individual for expulsion from their property. As a business owner, I should be able to walk up to anyone and say, "I'd prefer you to leave the store, as you're being disruptive to my other guests for ....(name your reason)." But a sign, preventing a whole class of people from entering (white, black, Asian, straight, gay, young, old) should not be allowed - in my perfect world view.