CHL and Open Carry Question

[SA_Steve]

yes, request.
demand, probably not.

[srothstein]

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.

I believe that I have posted before, and Charles has agreed, that the problem is in the way the law works, according to the courts. We know what "does not apply" means in plain English, but the courts say the law always applies. There is only one thing in the law which make it not apply. An "exception" makes the act strictly legal, but it must be labelled as an exception. All other cases are either defenses or affirmative defenses.

So, "does not apply" truly is just a defense to prosecution. It means that you are committing a crime, but should be found not guilty if you can prove the defense.

I am unaware of any case law which would say whether a defense that is common makes an act legal for the purpose of developing reasonable suspicion that a crime is being committed under the Fourth Amendment. I am also unaware of any case law that would say to ignore the possibility of the defense. The closest I can come is my training that any act which was as likely to be legal as illegal would not constitute probable cause. The amount of suspicion needed for a stop to identify is much lower than probable cause though.

My experience and training leave me with the belief (with no evidence) that most officers will ignore people they just see openly carrying but will stop and talk to people when they get a MWAG call. When they talk to people, their training is going to get them to ask for ID. If any of us fail to provide that ID, the situation will generally go downhill. I am aware of the conflict int he law on identifying. You do not have to produce ID or even identify yourself when you are stopped (not driving) but you are required to produce your DL and CHL if you are carrying and a police officer asks for it.

I think, and this is just my guess right now, that if an officer was sued for stopping a person for openly carrying and stated it was just because they were carrying, the officer is going to win the lawsuit. I think the officer would also win a motion in a criminal trial to admit any evidence resulting from the stop.

[thetexan]

This is a difficult piece of pride to have to swallow for law abiding, constitution waving gun carriers. What do we expect law enforcement to do? Here's a better question. Since law enforcement works for the state, what do we expect the state to do?

Imagine a scenario where it is illegal to drive without license plates. Then one day the state makes a law that if you pay a fee you don't have to have license plates. How does law enforcement deal with that? Ignore all cars without license plates? How do they 'enforce' the law? They can investigate any car without a license plate under a reasonable suspicion theory. Or we can scream UNCONSTITUTIONAL! and expect them to do nothing. Oh, we won't have a problem with them stopping a car that hasn't paid the fee, but don't DARE stop me because that violates my constitutional rights! What's the idea of the state making such a law and not adequately dealing with it's ramifications for the enforcement of the law.

Same situation here. We have now been given the right to openly carry a gun which by any other standards screams PROBLEM, MWAG!, yet expect law enforcement to have their hands tied and not act on the obvious suspicious activity. Yes, it is suspicious by its very nature. And why did the state refuse to provide a solution to this obvious problem. Now we have given cover to any criminal with a gun to just simply carry on his belt and blend in.

We need to quit worrying about the possibility of being stopped by a LEO to prove we have a license. Do you really want to live in a community where anyone can carry a gun and they can't be stopped for anything less than being in the process of committing a crime?

tex

[CleverNickname]

Do you really want to live in a community where anyone can carry a gun and they can't be stopped for anything less than being in the process of committing a crime?

Yes.

I mean, if they're doing something else that's suspicious which would give LE probable cause to stop them then I don't have a problem with it, but carrying a firearm in and of itself is not suspicious.

If you think this is going to be such a problem, please point out what must be numerous problems in other states that are happening due to OC. It seems to me that it's pretty much a non-issue.

[locke_n_load]

We need to quit worrying about the possibility of being stopped by a LEO to prove we have a license. Do you really want to live in a community where anyone can carry a gun and they can't be stopped for anything less than being in the process of committing a crime?

tex

Yes.
That's the way the founders wanted it to be. It's called Freedom.

[dac1842]

Keep it simple. If a police officer asks for your ID, just show it to him/her.
The inquiry if it happens at all will take a minute or two and be over.
If you start trying to challenge the reason for the stop it will just take longer and not accomplish anything.

[joe817]

Keep it simple. If a police officer asks for your ID, just show it to him/her.
The inquiry if it happens at all will take a minute or two and be over.
If you start trying to challenge the reason for the stop it will just take longer and not accomplish anything.

totally. Further discussion of this topic isn't necessary.

[Gunner4640]

Keep it simple. If a police officer asks for your ID, just show it to him/her.
The inquiry if it happens at all will take a minute or two and be over.
If you start trying to challenge the reason for the stop it will just take longer and not accomplish anything.

totally. Further discussion of this topic isn't necessary.

true, I will not OC except in my garage, spiders

[chasfm11]

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.

I believe that I have posted before, and Charles has agreed, that the problem is in the way the law works, according to the courts. We know what "does not apply" means in plain English, but the courts say the law always applies. There is only one thing in the law which make it not apply. An "exception" makes the act strictly legal, but it must be labelled as an exception. All other cases are either defenses or affirmative defenses.

So, "does not apply" truly is just a defense to prosecution. It means that you are committing a crime, but should be found not guilty if you can prove the defense.

I am unaware of any case law which would say whether a defense that is common makes an act legal for the purpose of developing reasonable suspicion that a crime is being committed under the Fourth Amendment. I am also unaware of any case law that would say to ignore the possibility of the defense. The closest I can come is my training that any act which was as likely to be legal as illegal would not constitute probable cause. The amount of suspicion needed for a stop to identify is much lower than probable cause though.

My experience and training leave me with the belief (with no evidence) that most officers will ignore people they just see openly carrying but will stop and talk to people when they get a MWAG call. When they talk to people, their training is going to get them to ask for ID. If any of us fail to provide that ID, the situation will generally go downhill. I am aware of the conflict int he law on identifying. You do not have to produce ID or even identify yourself when you are stopped (not driving) but you are required to produce your DL and CHL if you are carrying and a police officer asks for it.

I think, and this is just my guess right now, that if an officer was sued for stopping a person for openly carrying and stated it was just because they were carrying, the officer is going to win the lawsuit. I think the officer would also win a motion in a criminal trial to admit any evidence resulting from the stop.

One of our local PDs had a community relations event at a local coffee shop last evening. I went, intending to ask questions about OC. To my surprise, three officers were there and one of them was the chief. I talked with him and with one of his sargents and they confirmed what you believe - that it would be unlikely for them to stop someone OC unless there was associated questionable behavior but that they would likely respond to every MWAG dispatch call and that a supervisor would likely go, too, unless workload prevented it. They talked about one of the OCT demonstrations held locally last year and about a local taco shop incident that is worthy of sharing. The sargent said that typically they will get a flurry of calls on a MWAG situation and that they are very suspicious of such a report by only one person.

Apparently there was some sort of reenactment activity in Ft. Worth and a group of the participants decided to stop at the taco shop afterward. They were carrying black power pistols in very visible leather holsters. Several of the patrons of the taco shop placed frantic MWAG calls with dispatch. The sargent said that he knew immediately from the demeanor of the guys with the visible guns that there was no problem. But he said one of the women, there with her husband and child, was in near hysterics and was crying profusely. When the officers spoke with the owner of the shop, he had no problem with the group being there. The sargent said that he stayed there to try to deal with the woman who would just not accept the fact that there was nothing illegal going on. He also said that he expects similar situations with OC.

I think the woman's conduct speaks volumes about what we might be dealing with from at least some of the public. Personally, if I felt that I was in a threatening situation, I would leave immediately. For someone fearful to the point of near hysterics to remain and fight with the police over their unwillingness to act suggests an "entitlement" mentality. Some recent social media threads that I've seen echo exactly that. It is less about their actual physical fear and more about a demand for LE to do things to make them comfortable, with seething anger if their demands are not met. What I took away from the discussion is that the demeanor of the OC person(s) would play a big part in what happened.

The chief is planning to hold a public forum on OC in the Fall. He says that he is trying to work with other departments to come up with a consistent approach but if there isn't a consensus, he will develop his own presentations for the forum. It could be a very interesting session of some if the MDA group shows up to demand more aggressive policing than he is willing to do.

[Abraham]

chasfm11,

I think your perspective regarding the overwrought woman having a sense of "entitlement" is spot on.

I wonder if her behavior is perhaps/also akin to rabid anti smokers, who when encountering a smoker, start in with the fake coughing and difficulty breathing act...

[mr1337]

We need to quit worrying about the possibility of being stopped by a LEO to prove we have a license. Do you really want to live in a community where anyone can carry a gun and they can't be stopped for anything less than being in the process of committing a crime?

tex

Yes.
That's the way the founders wanted it to be. It's called Freedom.

I absolutely want to live in a community like this.

A police officer must have reasonable suspicion that a crime is being committed in order to detain someone.

A firearm, where legally carried, does not constitute reasonable suspicion. US v. Black (2013)

A community where cops respect citizens' 4th Amendment protections? Sign me up!

[oljames3]

We need to quit worrying about the possibility of being stopped by a LEO to prove we have a license. Do you really want to live in a community where anyone can carry a gun and they can't be stopped for anything less than being in the process of committing a crime?

tex

Yes.
That's the way the founders wanted it to be. It's called Freedom.

[Wysiwyg101]

So, recently I heard that several places of business have stated they do not want firearms carried openly in their stores. They include, 1.) Target 2.) Whataburger 3.) Chili's 4.) Chipotle 5.) Panera Bread 6.) Sonic 7.) Starbucks. I've also heard that, under the new laws provisions, they can merely ask that firearms not be open carried in their places of business and that is enough. They don't need either a 30.06 or a 30.07 sign. Is that true? That would suck if it is true. Out of all those listed above, I've never been and don't plan on going to the Panera Bread place. I go to the others all the time.

I guess what I'd really like is if a lawyer read the actual law and translated it from Lawyerese to plain English that would be great. Anyone do that yet?

[Ipconfig]

So, recently I heard that several places of business have stated they do not want firearms carried openly in their stores. They include, 1.) Target 2.) Whataburger 3.) Chili's 4.) Chipotle 5.) Panera Bread 6.) Sonic 7.) Starbucks. I've also heard that, under the new laws provisions, they can merely ask that firearms not be open carried in their places of business and that is enough. They don't need either a 30.06 or a 30.07 sign. Is that true? That would suck if it is true. Out of all those listed above, I've never been and don't plan on going to the Panera Bread place. I go to the others all the time.

I guess what I'd really like is if a lawyer read the actual law and translated it from Lawyerese to plain English that would be great. Anyone do that yet?

Its always been the case with concealed carry that if you were asked to leave while carrying you have been effectively notified that you are barred from all further concealed carry in that store. Open carry will work the same way I am sure.

[Taypo]

So, recently I heard that several places of business have stated they do not want firearms carried openly in their stores. They include, 1.) Target 2.) Whataburger 3.) Chili's 4.) Chipotle 5.) Panera Bread 6.) Sonic 7.) Starbucks. I've also heard that, under the new laws provisions, they can merely ask that firearms not be open carried in their places of business and that is enough. They don't need either a 30.06 or a 30.07 sign. Is that true? That would suck if it is true. Out of all those listed above, I've never been and don't plan on going to the Panera Bread place. I go to the others all the time.

I guess what I'd really like is if a lawyer read the actual law and translated it from Lawyerese to plain English that would be great. Anyone do that yet?

They can post the legal signage as written notice, or simply ask you to leave as verbal notice. Either/Or is sufficient under the law.