LEO seizure of a handgun

[tbranch]

...most stops involving CHLs do not involve disarming and the act actually exposes all parties to ND due to unnecessary weapon handling.

From the poll ran on this site, there are very few instances of a CHL being disarmed. While there may be a few LEOs who disarm as a general rule (and I think this is a tiny percentage), the vast majority of times there are not any problems.

If the CHL acts foolishly or makes the LEO feel uneasy, I can't blame the LEO for taking appropriate action. I agree that any handling increases the chances for an ND, but if the LEO feels threatened, the risk of the ND is outweighed by his/her need to feel safe.

I don't think the probable cause test applies to disarming from my reading of the law. If the CHL tells the LEO that the weapon is in the glovebox and the LEO decides to disarm, then looking in the glovebox for the weapon seems reasonable and anything else found in the glovebox would fall under the "plain view" doctrine.

Tom

[flintknapper]

AFJailor wrote:

so if a LEO thinks its a good idea to disarm you for his safety then IMO he shouldn't hesitate to do so.

No Sir, “good idea� doesn’t cut it. Below are the ONLY criteria LEO are allowed to (lawfully) use when disarming.

§ 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. The peace officer
shall return the handgun to the license holder before discharging
the license holder from the scene if the officer determines that the
license holder is not a threat to the officer, license holder, or
another individual and if the license holder has not violated any
provision of this subchapter or committed any other violation that
results in the arrest of the license holder.




AFJailor wrote:

Don't you think you might just be a little more cautious around an individual with a weapon if you had to deal with shootings every day?

I fully recognize the dangers involved in law enforcement work and support LEO every way I can... but LEO do NOT “deal with shootings everyday�. And if they did…it begs the question:

Did these shootings involve law abiding CHL holders?

Of course, the answer is NO, so why should it become policy to disarm them?


AFJailor wrote:

If I was on a traffic stop and an LEO disarmed me I would not think any less of them, because he/she is doing doing his job and trying to make sure he can go home to his family at the end of the day.

I certainly want all LEO to go home at the end of day as well, who wouldn’t. But I will never subscribe to a “safety by any means� mentality. If my rights are violated in the process, this becomes unacceptable to me.

As for “doing his/her job� I would say that (following the law) is “doing their job�, and here it is:

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.

Doing anything else is NOT following/enforcing the “law� and is in fact… NOT “doing their job�.

Law enforcement is inherently dangerous, prospective LEO’s should take this into consideration before selecting it as a profession… I am sure most do.


Again, I am in complete support of every “good� LEO out there. I greatly appreciate the work they do and the peril they put themselves in. Just don’t trample my rights or circumvent the “law� for sake of convenience while doing your job.

[tbranch]

...the officer reasonably believes it is necessary for the protection of the license holder, officer, or another individual.

How hard do you think it would be to say, "I reasonably believed it was necessary?" The law is very vague on this issue.

Tom

[flintknapper]

...the officer reasonably believes it is necessary for the protection of the license holder, officer, or another individual.

How hard do you think it would be to say, "I reasonably believed it was necessary?" The law is very vague on this issue.

Tom

No harder than any other charge/assertion that might be leveled.

Unfortunately, that is part of the reason we now have dash-cams (for mutual protection).

[anygunanywhere]

I don't think the probable cause test applies to disarming from my reading of the law. If the CHL tells the LEO that the weapon is in the glovebox and the LEO decides to disarm, then looking in the glovebox for the weapon seems reasonable and anything else found in the glovebox would fall under the "plain view" doctrine.

Tom

I did not say that PC applies to disarming. I stated that questioning the disarming is appropriate. Resisting is not. Questioning events during a stop is not illegal. At least not yet.

If I am stopped for a traffic infraction and if the LEO decides to fish by asking to search my vehicle it is proper for me to ask why even though I will refuse to give permission.

If I am stopped for a traffic infraction and if the LEO disarms me I will politely ask what I did to make him feel it was necessary to disarm me. If he responds with the canned answer that he reasonably believes it is necessary for the protection of me, officer, or another individual I will ask what I was doing to make him feel unsafe. The act of being armed does not threaten anyone.

[AFJailor]

Let's get one thing clear: I do NOT think it should be general policy to disarm all CHL holders, BUT if the officer for whatever reason thinks disarming someone is in the best interest of his safety I fully support it. MOST CHL holders are the good guys yes...but you cant say that everyone who has a license to carry is a good person. I would also like to see a story in which an LEO disarmed someone and discharged the weapon, I've looked and havent been able to find a single occasion, maybe someone else can work better google magic than me.

[Odin]

We don't ask the LEO to disarm himself when he comes in contact with with us. We have no reason to believe that they are any less likely to shoot us than we CHL holders are to shoot them. Read the paper, LEOs becoming unnecessarily violent is is almost a daily event. Our background Investigation is the same as theirs.

First, I want to say that I don't think it is necessary to disarm most CHL holders and I believe that it's the exceptionm, not the rule. But my comment is on the highlighted quote above.

A CHL holder's "background investigation" is nowhere similar to a LEO background investigation. In fact, CHL holders aren't subject to any real background "investigation", it's more like a quick check to make sure the applicant isn't ineligible for some obvious reason. I'm not suggesting that the CHL background needs to be different, only that it is different from a LEO background.

When you are required to take a physical agility test, a written examination, a preliminary interview with an investigator, fill out a personal history packet that is over 50 pages of detailed personal info including all financial info/school history/address history/driving record/etc., have your references, neighbors, spouse and relatives (and others) interviewed by investigators, be subject to a drug screening, be orally interviewed/interrogated by a panel of veteran officers, submit to a medical examination, be polygraphed about everything in your life, endure many hours and literally thousands of questions of psychological evaluation, be interviewed by a psychologist, and pass an interview with the chief of police...all so that you can then take 775 classroom hours of instruction in a police academy and then take and pass the state TCLEOSE examination...all before being issued a license to carry a handgun.

When you have done all of that then you can say that your background was the same as the background for a LEO. The entire process for a LEO from the time they apply to the time they are able to carry a weapon will typically take about a year. It's not quite the same as a CHL background check.

[gregthehand]

The only reason I can see is this. If an officer disarms everyone he will never have to prove why he disarmed one certain individual. If something occured and for some reason they ever went to court and one of the attorneys asked Officer Jones why did you disarm my client? He could answer "I disarm every CHL holder I encounter on a traffice stop." It could be his department policy, or his personal policy and he could say that's it's always for his and the public's safety and be ok since the law is so vague. This holds true for most things on a traffice stop. Why did you have my client exit the vehicle, why did you ask them to roll down all their windows, etc. Once in court they can claim officer safety and that they do it on all traffice stops or public encounters and it won't look like they singled that individual out. I'm not sure how good of a reason that is but I know a lot of police officers do it.

[flintknapper]

The only reason I can see is this. If an officer disarms everyone he will never have to prove why he disarmed one certain individual. If something occured and for some reason they ever went to court and one of the attorneys asked Officer Jones why did you disarm my client? He could answer "I disarm every CHL holder I encounter on a traffice stop." It could be his department policy, or his personal policy and he could say that's it's always for his and the public's safety and be ok since the law is so vague. This holds true for most things on a traffice stop. Why did you have my client exit the vehicle, why did you ask them to roll down all their windows, etc. Once in court they can claim officer safety and that they do it on all traffice stops or public encounters and it won't look like they singled that individual out. I'm not sure how good of a reason that is but I know a lot of police officers do it.

Just my opinion of course, but being "consistent" at overstepping one's authority, or causing unnecessary inconvenience for the person stopped, in no wise makes it O.K.

It's like saying..."Stop your whining, I treat everyone poorly".

[tbranch]

...I stated that questioning the disarming is appropriate. Resisting is not. Questioning events during a stop is not illegal...

I don't disagree with you in theory. I think questioning a disarming on the scene is a bad choice and I don't think you'll get much support if you question it after the fact.

Tom

[Charles L. Cotton]

The legislative intent behind Tex. Gov't Code §411.207(a) was to authorize a peace officer to disarm a CHL if there was something about the person or the stop that made the officer believe it was necessary for someone's safety. That was a reasonable and necessary position for the Legislature to take. As for vague wording, unfortunately it too was necessary. Most of what a LEO does is based upon a "reasonable belief," but that's true of our actions as well. The ability to use force and deadly force against others, whether for self-defense or otherwise, as set out in Chp. 9 of the Texas Penal Code, is based upon our "reasonable belief." That is the guiding principle for LEO's and civilians alike because we simply can't list each and every specific scenario that would justify action. At some point in the analysis we simply have to look one another in the face and say "were his/her actions reasonable?" I think the statutory authorization to temporarily disarm a CHL is reasonable, proper and necessary.

Based upon stories related to me by many people, I agree that disarming CHL's seems to occur in a very small percentage of stops. This is as it should be, as having a reasonable belief that disarming a CHL is necessary for safety reasons should truly be a rare event. I do have a problem with departments or individual officers that disarm every CHL as a matter of departmental or personal policy. This is not only unjustified and outside the scope of authority granted in §411.207(a), it tends to drive a wedge between to segments of the community that are natural allies -- LEOs and CHLs. Just as CHLs need to understand the officers' concerns, so too must officers understand that being disarmed is not going to viewed as a neutral act. (I posted my own experience being disarmed by a new DPS Trooper.) A little understanding on both sides of the badge would certainly help the situation.

Chas.

[flintknapper]

Well said.

[seamusTX]

Police officers can handcuff people in custody when they reasonably believe that it is necessary for safety. Probable cause is not required.

Can you imagine how short the career of a police officer would be if he handcuffed every person he stopped for a class C traffic offense?

- Jim

[gregthehand]

Police officers can handcuff people in custody when they reasonably believe that it is necessary for safety. Probable cause is not required.

Can you imagine how short the career of a police officer would be if he handcuffed every person he stopped for a class C traffic offense?

- Jim

Didn't say I agreed with it, just that it's another reason they will sometimes use....

[Geopagus]

Very well said Mr. Cotton.

As I stated before (from my own limited knowledge and experience), most CHL holders will not be disarmed, unless certain circumstances arise either from the situation at hand or previous LEO experience. I have responded to calls involving CHL's before, from a casual encounter of a criminal mischief report, to a CHL discharging his weapon in defense of himself and his property. In one instance I thought nothing of disarming the CHL, nor did I even question where his gun was and in the other, he was temporarily disarmed until we could figure out who was who and what had transpired. In my own experience, I believe most officers are PRO CHL, as they should be. I certainly am. But, when an officer deems it necessary to disarm you, (for his, your, or the public's safety) and its done within the confines of the law? Do yourself and him a favor. Please don't argue, stating you know what your rights are, pulling out paper, etc . There are a ton of reasons why he might find it necessary. And it most likely will not be and obviously SHOULD NOT BE for the sake of infringing on someones constitutional rights, as some claim. For those who are stubborn, what I just typed here will continue to be argued. God Bless America