legal questions...lawyers welcome to assist

[CompVest]

A holstered gun openly carried should not constitute a disorderly conduct, because is calculated to cause alarm. Otherwise, LEO would not be allowed to carry openly. The fear of guns can and do happen at first sight, whether LEO was the actor or a civilian.

The difference is the "public" expects to see a firearm carried openly on an LEO.

[DONT TREAD ON ME]

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;


So we all can agree that an openly carried holstered weapon is not being carried in a manner calculated to alarm.

So what is the legal definition of a public place?

[one eyed fatman]

That's the problem with laws. Their made to be interpreted in any number of ways. You can twist em, turn em, stretch em, put it in a pot to be stirred etc. They are worded in such a way you have to go to court in order to decide what they mean. Most if not all of them are designed to make lawyers money. They can't even read and understand the 2nd amendment without taking it to court which reminds me I believe the second amendment is due back in the supreme court soon. Why? Because they can't figure out what the wording of that simply worded amendment means. Now signs Z paper and let's all go to court and be happy.

[DONT TREAD ON ME]

This is from the Penal Code.

Sec. 1.07. DEFINITIONS. (a) In this code:
40) "Public place" means any place to which the public or a substantial group of the public has access and includes, but is not limited to, streets, highways, and the common areas of schools, hospitals, apartment houses, office buildings, transport facilities, and shops

Sec. 30.05. CRIMINAL TRESPASS. (a) A person commits an offense if he enters or remains on or in property, including an aircraft or other vehicle, of another without effective consent or he enters or remains in a building of another without effective consent and he:

(1) had notice that the entry was forbidden; or

(2) received notice to depart but failed to do so.

SO...IIRC my front yard is not a "public place" due to the fact that the public does not have access without committing an offense of criminal tresspassing.

[dicion]

Sec. 30.05. CRIMINAL TRESPASS. (a) A person commits an offense if he enters or remains on or in property, including an aircraft or other vehicle, of another without effective consent or he enters or remains in a building of another without effective consent and he:

(1) had notice that the entry was forbidden; or

(2) received notice to depart but failed to do so.

SO...IIRC my front yard is not a "public place" due to the fact that the public does not have access without committing an offense of criminal tresspassing.

Negative.

You missed the 'And he' above. Which means BOTH a and a(1), or a(2) have to be true.

So, unless you post a sign, or tell everyone walking by your house that they cannot come on your property, which satisfies #1, it is not trespass.
If you have a sign, then yes.

If they don't have notice that it's forbidden, and you don't TELL them, then it is not trespass. Once they receive notice, or you tell them, and they enter, or do not leave, THEN it is.

[DONT TREAD ON ME]

Sec. 30.05. CRIMINAL TRESPASS. (a) A person commits an offense if he enters or remains on or in property, including an aircraft or other vehicle, of another without effective consent or he enters or remains in a building of another without effective consent and he:

(1) had notice that the entry was forbidden; or

(2) received notice to depart but failed to do so.

IIRC, W/O effective consent = they tresspass unless they have my permission to come on or in my property. In order to tresspass in a building (NOT a dwelling) it must be posted but property does not.

[dicion]

Sec. 30.05. CRIMINAL TRESPASS. (a) A person commits an offense if he enters or remains on or in property, including an aircraft or other vehicle, of another without effective consent or he enters or remains in a building of another without effective consent and he:

(1) had notice that the entry was forbidden; or

(2) received notice to depart but failed to do so.

IIRC, W/O effective consent = they tresspass unless they have my permission to come on or in my property. In order to tresspass in a building (NOT a dwelling) it must be posted but property does not.

I think it could be argued that your front lawn, with a lack of a fence and/or signs, would be construed as 'effective consent'. Eg, you didn't do anything to Prevent them entering it.
I don't know. Excal? srothstein? Other people with LEO experience?

If that was the case, then every solicitor that comes to my door could be arrested for trespassing. (Oh, How I wish that were true!)

[C-dub]

I think it could be argued that your front lawn, with a lack of a fence and/or signs, would be construed as 'effective consent'. Eg, you didn't do anything to Prevent them entering it.
If that was the case, then every solicitor that comes to my door could be arrested for trespassing. (Oh, How I wish that were true!)

Dicion, either you confuse me or you mistyped this. How can the lack of a fence and or signs be construed as effective consent? How can not doing anything to prevent someone from entering be construed as effective consent?

[aardwolf]

How can someone be trespassing on their own front yard?

[C-dub]

How can someone be trespassing on their own front yard?

If I'm understanding this correctly, one couldn't be trespassing on their own front yard, but it could be considered a public place if there were no fence or signs telling someone not to trespass. Then one could be arrested for carrying a gun openly under the disorderly conduct scenario easier.

[DONT TREAD ON ME]

Not your own front yard. If I was to walk in your front yard then I would be tresspassing as I am entering your property.

[srothstein]

XtremeDuty45,

You are missing a few minor points. The big one in understanding the concept of public place is how to define access. It does not necessarily mean physical access. Visual access can be enough as many courts have ruled. If the public can see you without a problem, it constitutes enough access to make the front lawn a public place. There was even a recent court case where the man's living room was ruled a public place. The logic was he was standing in front of the bay windows with no clothes on. He was clearly visible to the public outside the house. He was charged with one of the variants of indecent exposure and convicted. His argument about being private property and what he can do inside his own home was specifically ruled invalid by the judge because of the window.

So despite what we all want to think, the front lawn is a public place in the eyes of the law.

On the trespass side, part of what you posted is exactly backwards. A building does not have to be posted against criminal trespass. The mere fact that the doors are closed and locked constitutes enough notice. This is critical since one of the elements of burglary is also entering without effective consent. Land, on the other hand must be posted in one of many ways. It can be signs (the most clear way), a fence or other structure designed to keep people out or livestock in (and note as an interesting aside that a game fence is not designed to keep livestock in since deer are not livestock), or even purple stripes painted according to the law. What this means though is that we cannot use the criminal trespass statute as part of this analysis since it requires both a lack of consent and notice. The person may in fact be trespassing on your front lawn if he has no consent to be there, but it is not criminal trespass since he also did not receive the notice.

I am fairly convinced that the legal argument is not whether or not your front lawn is a public place. I am very confident that the courts would rule it so. Having arrested people in their front yards before, I know I can make that part stick in court. I really can't say if I have ever made it stick in appellate court since I don't think any of my cases have ever gone that high.

The whole debate we should focus on is the point of calculated to alarm. Here the serious legal question is if the actor's intent is more important than the victim's opinion or not. Many laws make elements that are solely dependent on the victim's perception. Assault is one example (bodily injury is defined as if the victim feels pain, for example). The way I read this law, the actor's intent is the sole matter in determining the violation. To me, calculated means that I planned it that way. In this case, it would not make any difference if I did cause alarm. The other guys could have been laughing at me (think, that's not a knife, this is a knife but gun related). But if I intended to cause fear, I broke the law.

I am confident that if I could show you intended to scare someone, I could make that charge stick, even if no one was made afraid. I know of officers who read this law the other way. To them calculated means it might have caused alarm and I should have known. This means they take the side of letting the victim define the offense. As I said, there are a lot of laws like this on the books so I cannot swear they are wrong. I do not have the confidence that a court would agree with them, but I also cannot say the court would disagree.

So, as was pointed out, if you walked outside with a gun in a visible holster with the intent to scare your gang wannabe neighbor (real gang member wouldn't scare so don't try this), you have broken this law even on your own front lawn. I still doubt I would arrest you, but I know a lot more officers who would in this case. If you did it because you came home from work and took your jacket off, then went outside to get the mail forgetting you had your CHL weapon on your hip, I don't think you have broken the law. But if your 90-year-old California transplant neighbor calls in that it scared her, I cannot swear that the courts would convict or release.

Thanks for that last example Gregthehand. It is a perfect example of how this can happen and also why you should not talk to the police about anything you are accused of, not just serious things.

[gregthehand]

No problem. It's funny you mention the assault thing. We hooked a guy one night for assault class C family violence because he "accidentally" slapped his wife. He was at the dinner table drunk trying to make a point and flailing his arms about to his twin ten yea old sons. His wife approached behind him and he accidentally hit her in the face while gesturing with his hands in a drunken (over emphasized) manner. I didn't think think he should have gone but the older guys took him and I was a new boot so I kept my mouth shut. Also it was the thinking in Montgomery County that because the law said a LEO must prevent further family violence he must make an arrest. I know in Fort Bend County their thinking is it may just be to separate the parties and send one to stay with the parents, friends, whomever. So I totally agree with you on the assault charges and them being open to interpretation as far as culpability.

Also you beat me to it on the "public" part. Lot's of areas not thought to be public can be considered public by the actions of the person on/in them. I was thinking about the "naked man/woman/couple calls in plain view (public) but inside their residence myself. To take that a step further how about this! What if a guy has a big bay window that he stands in with a shotgun at port arms and gives everybody that comes around, near, or passing his house a menacing face? Maybe even yells at anyone that even looks like they will walk on his property. Has he committed Disorderly Conduct? I'm going to put on the LEO hat but yes I think I could prove he has. Would I effect an arrest? Well I wouldn't know until I got there. If the man was very combative and I felt there was a threat of him harming someone for just stepping on his property I would hook him up. On the other hand if I encountered a very reasonable guy who had just had it with say hoodlums or gangsters in his subdivision and was trying to say that the good people weren't going to take them breaking in and doing what they want I would not. So keep in mind here guys in both instances he was trying to alarm someone. So in both cases technically he is breaking the law. I could prove it up in both cases but I would only choose to do so in one. Officer's discretion. I think it's obvious why both decisions would be made. However even in the second case I would very sternly tell him that he was indeed breaking the law but that I was not going to arrest him and he needed to not do it again or I would. I probably wouldn't until he did it about five or six times but I really want him to stop doing it so I would tell him nonetheless. However to go even further if he DID do it again and was reasonable the next time and another officer makes the call and sees the call notes that I had been out there before and had advised him not do to do it and that it was illegal he or she may make an arrest. Their discretion.

Also to add to the "public place" debate we used to serve papers on houses out in the non-incorporated parts of the county. It was ruled that an open gate constituted permission to enter. This went so far as to if we drove up to a piece of property and it had a dirt road on property and no fence but had a gate that was closed, we could not enter. Could we drive or walk around the gate? Sure but the owner of the land had obviously erected a structure in order to prevent other people from entering his or her property. Also in case you are wondering a single chain across the road suspended by two poles was considered a gate. None of these gates had to be locked either. Just closed. So an open front lawn was also considered permission to enter.

So really "public" isn't so strict to mean this or that. It's all open to interpretation and you don't want to encounter the new boot officer or the cop who is having a bad day (if you think this can't come into play you are naive). Don't gamble with your time, money, and possible temporary freedom to prove a point. I'm not even sure what carrying openly in your front lawn would prove. It's not going to convince ANYONE who is against it and the people who aren't against it won't care so what's the point? I understand some may say "I jest do it 'cause it's my right!" but that's stupid. It's my right to go and run may car into a tree but what is the point of it? You aren't making any ground on the great gun/second amendment/open carry debate either. If you are willing to take a ride and possible lose your CHL and have to pay lawyer fees why not take just half the money all that would cost you and donate it to TSRA and tell THEM you are donating because you support open carry. Or take the eight hours or so you would spend at the local Sheriff's Bed and Breakfast and go visit your local state representative. By the way if you would stand in your bay window and yell at people that get near your property with a shotgun at port arms, please don't contact your representative. Just donate some money to TSRA.

[boomerang]

Also you beat me to it on the "public" part. Lot's of areas not thought to be public can be considered public by the actions of the person on/in them. I was thinking about the "naked man/woman/couple calls in plain view (public) but inside their residence myself. To take that a step further how about this! What if a guy has a big bay window that he stands in with a shotgun at port arms and gives everybody that comes around, near, or passing his house a menacing face? Maybe even yells at anyone that even looks like they will walk on his property. Has he committed Disorderly Conduct? I'm going to put on the LEO hat but yes I think I could prove he has.

What if he's a cop?

[gregthehand]

What if he's a cop?

Well in the context of my situation then yes it still would be. If he's in his house he's probably not on duty and therefore not acting under color of law. So he would be breaking the law regardless of the fact that he could carry openly. I can tell you that more than likely he would get fired for doing so even if not arrested. Remember a person can carry openly just like a cop in their house with the windows open. I can tell you that no cop that wasn't mentally sound would stand there and do that and then when the other cops showed up would say he was doing it to scare the jeepers out of people. Because they would know it was illegal but just OCing on their property because it's more com

If you are trying to show that cops can do it an not cause alarm and we can't and that's not fair then I think that's a whole different topic. The original poster asked about whether he can OC on his lawn and that's what I'm sticking to. If we want to discuss OC and the differences between how laws affect average people and a police officer than there are NUMEROUS threads that discuss that.